Anomaly with Section 38 of Kerala Chitties Act

(By Jose Makil, Advocate, Kottayam)

Chitty is an indegenous device of practicing thrift popular for long time especially among the lower and middle income groups. By contributing smaller amounts of instalments and that too, during a short span of say 25 to 50 months, big sums can be procured which can be used say for purposes of daughters' marriage, for purchasing property, mustering capital etc. etc.

This is a panacea for the present economic crunch, non availability of funds, and will inculcate financial austerity which leads to economic redemption.

There are three wings to chitty functioning. Firstly Foreman who organises the subscribers, give security to the register, give bid amounts to the prized subscribers by security and in default realizes amounts from them. Secondly the prized subscriber who bid the chitty by lossing discount to a maximum of thirty percent and pay the further instalments punctually and he has also to pay foreman's commission. Thirdly non-prized subscriber has to remit the instalments punctually, after deducting Veethapaliza.

Veethapaliza is the amount of discount divided between the subscribers.

While the rights of the foreman is to get fully the first instalment to receive Veethapaliza for his subsequent subscriptions and foreman's commission, the prized subscriber has to get his prized amount less foreman's commission and Veethapaliza for subsequent instalments.

But in the case of non prized subscriber he has to remit his share of amount less Veethapaliza and Foreman's Commission.

But there is an unjust clause in the present Kerala Act that even if the non prized subscriber is at a fault to remit instalments, he is entitled to Veethapaliza.

S.38(1) of the Kerala Chitty Act is reproduced below:

"Refund of non prized subscriber's subscription(1) Except in the case of termination of a chitty under Clause (A) or Clause (B) of S.36 every non-prized subscriber shall unless otherwise provided for in the Variola, be entitled to get back his subscriptions at the termination of the chitty without any deduction for Veethapaliza. if any. received by him."          (underline supplied)

This is unjust in the sense that when the non prized subscriber defaults, the foreman has to pay his prized subscribers from his pocket.

This leniency to non prized subscriber will disturb the harmony between foreman and prized subscriber.

Moreover while the prized subscriber defaulter has to forgo his Veethapaliza in a lump for future subscriptions, his non-prized defaulter counterpart retain the privilege for Veethapaliza which is unfair and unequitable.

But in the previous Travancore Act (XXVI of 1120) as per Ss.25 & 27, the defaulter non prized subscriber would also forfeit Veethapaliza if there is a provision in the Variola. The said sections are reproduced below:

S.25. "Non prized subscribers to pay subscription and get receipts. Every non prized subscriber shall by his subscription at the time and place mentioned in the variola and shall on such payment be entitled to get a receipt from the foreman. In default of such payment, he shall be liable to such consequences as are provided for in the Variola", (underline supplied)

S.27. "The time when a non prized defaulting subscriber is entitled to recover contributions (1) A defaulting non-prized subscriber shall be entitled at the termination of the Chitty to recover from the foreman his contributions subject to such deduction as may be provided for in the Variola".(underline supplied)

Thus in 40 months duration chitty, if there is a provision in Variola, that if a non prized subscriber default say after the 15th instalments, he has to forgo the whole of Veethapaliza earlier received as per receipt, if after 30th instalment the subscriber has to forgo 25% Veethapaliza, if after 35th instalment the deduction may be 50%. The deducted Veethapaliza can be distributed among other subscribers on termination of Chitty. Hence the above said S. 38 of present Act is liable to be challenged

Departure of Lord Denning - A Tribute

(By Justice C.K. Thakker, Judge, High Court of Gujarat, Ahmedabad)

As earth thy body keeps, thy soul the sky,

So shall this verse preserve thy memory;

For thou shall make it live,

Because it sings of thee.

On March 5, 1999, Lord Denning passed away. After completing 100 years of age, the Master of the Rolls left us leaving behind him plethora of precedents, several memorable judgments and numerous thought provoking books1.

Often innovative, occasionally controversial and undoubtedly a great Judge of twentieth century, Lord Alfred Thompson Denning, popularly known as "Tom Denning" was born on January 23, 1899 at Whitchurch in Hampshire. After graduating from Oxford University, he was called to the Bar in 1921. In 1944, Lord Denning was appointed as a Judge of the High Court. In 1949, he was promoted to the Court of Appeal and in 1957, to the House of Lords. In 1962, he was appointed the Master of the Rolls and occupied that position upto 1982.

The contribution of Lord Denning will never be forgotten by legal world. Take any branch of law and you will find judgments of Lord Denning. May it be Contract or Tort, Equity or Trust, Family matters. Landlords and Tenants, Town Planning, Housing Development, Labour Law, Interpretation of Statutes, Administrative Law or Constitutional Law, there are bound to be important decisions of Lord Denning.

Lord Denning believed in doing justice - full and complete. He, therefore, interpreted statutory provisions in the light of the ultimate goal to be achieved, which was Justice. Inspite of the limitations of a Judge, according to him, it was possible to do justice to the cause by interpreting law as required in the case on hand. In his words, "a Judge must not alter material of which it is woven but he can and should iron out the creases."2 Though, the House of Lords did not approve the view of Lord Denning and described it as "a naked usurpation of the legislative function "3, it cannot be gainsaid that in interpreting a statute, a Judge should not be oblivious and ignorant of justice.

In upholding the right of locus standi. Lord Denning did not stick to the traditional view of "person aggrieved". He evolved the concept of "sufficient interest" of an applicant who approaches a court of law."4

In R. v. Greater London Council, ex parte Blackburn,5 prohibition was sought restraining the Council from illegally exhibiting pornographic films. Locus Standi of Blackburn was challenged. Negativing the contention and upholding locus standi of the applicant, Lord Denning observed; "If Blackburn had no sufficient interest, no other citizen had and in that event no one would be able to bring an action for enforcing the law and transgression of law would continue unabated". Though House of Lords reversed the decision of Lord Denning 6, in his well known work7, Lord Denning said; "I must confess that whenever an ordinary citizen comes to the Court of Appeal and complains that this is that Government Department - or this or that Local Authority -or this or that Trade Union - is abusing or misusing its power -I always like to hear what he has to say." (Emphasis supplied)

In the field of Administrative Law, the contribution of Lord Denning will be remembered for all time to come. In English Legal system, which was under the influence of Dicey, it was Lord Denning who openly proclaimed; "It may truly now be said that we have developed system of administrative law". He delivered several judgments on the principles of natural justice. Regarding bias, his views were unambiguous and clear. Applying the test of likelihood of bias, he ruled that the Presiding Officer must be above bias or prejudice. Reiterating the test of Lord Hewart, C.J.8, that "Justice should not only be done but manifestly and undoubtedly be seen to be done"; and of Lord Bowen, J.9 that "Judges, like Caesar's wife must be above suspicion", Lord Denning said; "Reason is plain enough. Justice must be rooted in confidence andconfidenceis destroyed when right minded people go away thinking 'the Judge was biased' "10 (Emphasis supplied)

Often the concept of "natural justice" was criticised describing it as an "unruly horse". The reply of Lord Denning was that, "With a good man in the saddle, unruly horse can be kept under control. It can jump over obstacles. It can leap fences put up by fictions and come down on the side of justice."11

About the right to be represented by a counsel, Lord Denning asserted that "when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth but has also right to speak by Counsel or Solicitor. Even a prisoner can have his friend." 12(Emphasis supplied)

In 'Delegated Legislation', Lord Denning declared that "whereas administrative function can often be delegated judicial function rarely can be. No judicial Tribunal can delegate its function, unless it is enabled to do so expressly or by necessary implication." Lord Denning said; "When an Act is held ultra vires, it is null and void and of no legal effect whatsoever. Such void act cannot even be ratified subsequently. Effect of ratification is to make it equal to a prior command but as a prior command in the shape of delegation would be useless, so also is a ratification".13

His contribution to the "Doctrine of Estoppel" is unique in nature. Under the traditional law, the doctrine could be used only as a defence but could not be made the cause of action. In other words, it could be used as a shield but not as a sword 14. Lord Denning challenged the limited application of the doctrine. In his opinion, the doctrine was based on equity, where justice would prevail over truth. In High Trees,15Lord Denning held that the doctrine of estoppel need not be inhibited by narrow application as defence and it was open to the applicant to invoke the doctrine of equitable estoppel * to get appropriate relief from a competent Court.

Lord Denning believed in preservation and maintenance of Rule of law. Hence, when injunction was sought against an illegal act of a public authority and it was contended by the authority that if injunction were granted, there would be administrative chaos, Lord Denning proclaimed; "I must say this: If a local authority does not fulfill the requirements of the law, this Court will see that it does fulfill them. It will not listento suggestion of chaos...................Even if chaos should result, still law must beobeyed."16(Emphasis supplied)

Lord Denning was a progressive Judge. He believed in doing justice to the case on hand. His judicial philosophy is reflected in the following statement; "My root belief is that the proper role of the Judge is to do justice between parties before him. If there is any rule of law, which impairs, the doing of justice, then it is the province of the Judge to do all that he legitimately can to avoid that rule - or even to change it - so as to do justice in the instant case before him. He need not wait for legislation to intervene; because that can never be of any help in the instant case".17

He was, however, conscious of the limitations of a Judge and hence proceeded to state; "I would emphasise, however, the word "legitimately"; the judge is himself subject to law and must abide by it."18

He reiterated what Thomas Fuller said more than three centuries ago; "Be you ever so high, the law is above you."19

Lord Denning always emphasised that a judge must be cool, quiet and sober. He stated; "One thing a Judge must never do. He must never lose his temper."20

Lord Denning was a champion of personal liberty and individual freedom, but not at the cost of interest of society at large. According to him, a balance must be struck between private rights and social security. In a country where Parliament is sovereign and can do everything, "but make a woman a man and a man a woman". Lord Denning stated; "To my mind it is fundamental to our society to see that powers are not abused or misused. If they come into conflict with freedom of an individual or with any other of our fundamental freedoms, then it is the province of the Judge to hold the balance between the competing interests.21

Lord Denning was very popular with law students. Mr. Alex Lyon, M.P. who was a law student said; "Lord Denning was my great Hero when I was a law student. I used to go to sit in the Court just to listen to him. He has a beautiful voice and beautiful delivery but I was also enthralled by what he was doing to the law to advance it into the twentieth century."22

On his seventy-ninth birthday, a student from the University of Toronto sent a birthday card to Lord Denning. It was a cartoon showing a horse and a rider leaping over a fence and was titled; "Obstruction to Justice." The horse had a streamer on his tail, with a label, 'Public policy'. The rider was a Judge, in joyous mood and in full control, with wig and gown flying. Lord Denning was very much pleased and replied wishing that the students should become good horsemen and horsewomen.23

On July 31, 1982, farewell was given to Lord Denning on his retirement. In valedictory speech, the Lord High Chancellor, Lord Hailsham of St. Marylebone said; "It is given to few men to become a legend in their lifetime. There would be few in this country who would deny that Lord Denning is one of these few. From the numbers and standing of his own fraternity of the law assembled here today to do him honour, we can readily infer, that he has been and is a golden legend."

The Lord High Chancellor concluded:

"Without him, things will never be quite the same again. I like to think that notwithstanding his retirement our period of creativity will not quite come to an end, still less relapse once more into quiescence. But, master of the Rolls, we shall miss you. We shall miss your passion for justice, your independence and quality of thought, your liberal mind, your geniality, your unfailing courtesy to colleagues, to counsel, and to litigants in person who, like the poor, are always with us, particularly in the Court of Appeal. Above all, we shall miss you and your gift of friendship, your sturdy independence, and your unflagging and effervescent enthusiasm. Now you belong to history. But here you see around you a company of admirers and friends. We wish you well, both you and Lady Denning. Come and see us often. Wherever lawyers are gathered together they will always rejoice to see you in their midst."24

Many Judges have been admired for their learning and erudition but Lord Denning was loved by one and all. It was because of his basic humanity, unfailing courtesy and kindness towards litigants, lawyers and brother judges. Lord Scarman said; "He was the finest judge that I ever met in my time, one of my heroes." Lord Woolf, the present Master of the Rolls recalls how Lord Denning guided him when he was a young advocate. Rich tribute was paid by Lord Chief Justice Bingham when he stated; "Lord Denning was the best known and best loved judge of this, or perhaps any generation".

The author was fortunate enough to have Lord Denning's blessings in all his works25. Though the author had no occasion to meet Lord Denning personally, he would always cherish the memory of Lord Denning for the blessings and encouragement extended to him for the last more than six years.

Though Lord Denning is not with us today, one should remember that "the fact that we cannot see our friends or communicate with them after transformation which we call 'death' is no proof that they cease to exist."

We can only pray God for eternal and everlasting peace to the departed soul by stating what Alic Gary said:

''Ye doubting souls, from doubt be free-

ye mourners, mourn no more;

For every wave of Death's dark sea,

Breaks on that blissful shore".

__________________________________________________________________

1."Freedom under the Law" (1949); "The Changing Law" (1953); "The Road to Justice" (1955); "The Discipline of Law" (1979); "The Due Process of Law" (1980); "The Family Story" (1981); "What Next in the Law"(1982); "The Closing Chapter" (1983); "Landmarks in the Law" (1984).

2. Seaford Court Estates Ltd. v. Asher;(1949) 1 KB 481; (1949) 2 All. ER 155; (AC) See also Asher v. Seaford Court Estates Ltd.; (1950) All. ER 1018; 1950 AC 508.(HL)

3. Magor & St. Mellons Rural District Council v. New Port Corporation; (1951) 2 All ER 839:1952 AC 189.

4. Attorney General of Gambia v. Pierra Sarr N'Jie; 196l AC 617: (1961) 2 All ER 504: (1961) 2 WLR 504:(196l) 2 WLR 845: Maurice v. London County Council; (1964) 2 QB 362; Attorney General ex rel Mc Whirter v. lndependent Broadcasting Authority; 1973QB 629: (1973) 1 All ER 689: (1973) 2 WLR 344; Rex v. Greater London Council, ex parte Blackburn; (1976) 3 All ER 84: (1976)1 WLR 550; Gouriet v. Union of Post Office Workers; (1977) 1 All ER 6960: (1977) 2 WLR 310: 1977 QB 729

5. (1977) All ER 696: (1977) 2 WLR 310: 1977 QB 729(CA)

6. Gouriet v. Union of Post Office Workers (1977) 3 All ER 70; (1977) 3 WLR 300:1978 AC 435 (HL).

7. “The Discipline of Law” (1979); P.144; See also V.G. Ramachandran;" Law of Writs"; (1993); pp. 24-25.

8. R.V. Sussex Justices; (l924) 1 KB 256 (259): 1923 All ER 233:93 LJKB 129.

9. Leeson v. General Council of Medical Education & Registration; (1889) 43 Ch D 366 (385): 1886-90 All ER 78:61 LT 849.

10. Metropolitan Properties Ltd. v. Lannon;(1069) 1QB 577 (578): (1968) 3 All ER 304: (1968) 3 WLR 394.

11. Enderby Town Football Club Ltd. v. Football Assn. Ltd.; 1971 Ch D 591 (606): (1971) 1All ER 215; See also "The Discipline of Law" (1979); pp. 170-73.

12. Pett v. Greyhound Racing Association (I); (1968) 2 All ER 545 (549) : (1969) 1 QB 125 (132) : (1968) 2 WLR 1471.

13. Barnard v. National Dock Labour Board; (1953) 1 All ER 1113 (1119):(1953)2 QB 18; see also "The Discipline of Law"(1979);pp 79-81.

14. "The Closing Chapter"; (1983); pp 254-57; "The Discipline of Law"; (1981); pp 199-223.

15. Central London Property Trust Ltd. v. High Trees House Ltd.; (1947) 1 KB 130; (1946) 1 All ER 256; see also Robertson v. Minister of Pensions; (1948) 2 All ER 767: (1949) 1 KB 227; Lever(Finance)Ltd. v. Westminister Corporation; (1970) 3 All ER 496:(1971) 1QB 222.

16. Bradbury v. London Borough Council; (1967) 3 All ER 434 (441): (1967) 1 WLR1311.

17. "The Family Story"; (1981) p. 174.

18. Ibid. It was however, doubtful whether the word "legitimately" had any significance in view of another statement;

"I never say 'I regret having to come to this conclusion but I have no option. There is always a way round. There is always an option - in my philosophy - by which justice can be done'." "The Family Story"; (1981); p. 208.

Jowell & McAuslan; "Lord Denning: The Judge and the Laws"; (1984); p.80.

19. "The Family Story";(1981); p.l79.

20. Ibid; at p. 206.

21. Ibid; at p. 179; see also "Freedom Under the Law"; (1949); p. 179; "The moral of it all is that a true balance must be kept between personal freedom on the one hand and social security on the other."

22. "The Listener"; September27, 1979.

23. "The Discipline of Law"(1979);pp. 172-73.

24. "Farewell to Lord Denning"; The Lord High Chancellor Lord Hailsham of St. Marylebone; on July 30, 1982.

25. Justice C.K. Thakker; "Administrative Law": (1992); V.G. Ramachandran; "Law of Writs"; Fifth edition by Justice C.K. Thakker; (1993); "Criminal Procedure"; (1994); "Civil Procedure"; (1997); "Lectures on Administrative Law" (1998); Ratanlal & Dhirajlal "Law of Crimes"(24th edn.) by Justice C.K. Thakker (1998).

relegated to a secondary position in the newly created R.9A, and service by RPAD, fax, approved courier service or e-mail have been given primary position. However, in practical plane an insurance against few difficulties may have to be provided. For instance it has been experienced even by this author that transmission of message by e-mail is susceptible to be corrupted by virus, with the result the sender's system may inform transmission of message, while the receiver may not receive it at all.

But the most serious criticism is regarding the proviso to the newly introduced R.9(3) which provides that where summons is send by RPAD, notwithstanding the fact that acknowledgement card has not returned or mislaid, the Court shall still declare that the summons has been duly served on the date fixed by it. Even S.27 of General Clauses Act provides for only a rebuttable presumption that a registered post has reached the addressee. If the Court makes a declaration under O.V R.9(3) proviso, then it may be difficult for any party, who has not been actually served, to set aside a decree under O.IX R.13, for one of the two grounds available for the defendant to set aside an ex parte decree is that the summons has not been duly served. The amended O.V R.9(3) seeks to convert what has been hither to a rebuttable presumption, into one of conclusive presumption, if not a fictional proof. It is not advisable, if not dangerous, for procedural law to declare justice on presumptive service of notice of a suit. At the best it can only be a last resort, but never can it be a primary mode.

(c) In O.VI, the shocking amendment has been the deletion of R.17 and 18 relating to amendment of pleadings. Alongside, O.VIII Rr.9 and 10 too have been deleted. Let us presume some formal defect other than the one already discussed, in (b) above, such as seeking an alternate relief where there is a pleading, or a much more innocuous amendment for correcting a wrong survey number or a boundary. Then there may be subsequent changes some of which may not be evidentiary. You cannot seek amendment of pleadings now. S.151 may have an assignment here. But, if S.151 is to be interpretated as a panacea for all procedural shortcomings, then the amendments achieve very little by way of reformation of legal system. At any rate it leaves a debate open, enabling our various High Courts to deliver divergent opinions to be finally settled by the Supreme Court, long after some injury is inflicted and the agony is suffered. The right to amend is an insurance against multiplicity of proceedings and the same ought not have been denied to the litigants.

(d) The amendments to O.VII Rr.14 and 18 requires a close attention for it poses greater threat to justice as a common man understands the concept. Existing rules were substituted. This may be read in conjunction with another amendment involving the deletion of O.XVIII R.17A. Necessary amendments have also been made to O.XIII R.1, while R.2 of that order has been deleted. The present position is that the plaintiff must file along with the plaint all the documents upon which he institutes the suit, and to file a list of documents he relies on, and if he omits to do the same, he shall not be permitted to file them except with the leave of the Court. The amended provision says that all documents either the one upon which suit is filed or which the plaintiff relies on, should be listed and filed along with the plaint. True the new R.14 (2) provides that where documents are not in the possession or power of the plaintiff, he may state in whose custody it is. Similar amendments have also been introduced in O.VIII. Now let us imagine a situation; What, if a party does not know about the existence of a certain document that affects his right. It may be a document on which the parties may litigate. Presently, if such documents are found pendente lite, the same may be produced and if necessary, the plaint could be suitably amended. Unfortunately O.VI R.17 of Rr.17 and 18 have been deleted. So the plaint could not be amended. Additional pleadings could not be filed, because O.VIII Rr.9 and 10 too have been deleted. The suit could not be withdrawn with the leave to file a fresh suit on the same cause of action under O.XXIIIR.1, because the situation discussed may not constitute a formal defect within the meaning of that order. The new amendment does not touch O.XXIII R.1, or Explanation IV to S.11, or O.II, R.2, in order the difficulty created can be removed, if not now, at least later. The next situation is even worse. Where a document is crucial, but only evidentiary, of which a party does not have any knowledge about before trial, it is impossible for him to admit it in evidence notwithstanding its admissibility otherwise. He now can only hold it in his hand to write a memoir as to how he lost a battle for want of knowledge about an evidentiary document. Where we are heading for? The situation is further complicated by the fact that O.XLI R.27 providing for production of additional evidence before the appellate Court has not been deleted. This implies that an evidentiary document detected pendente lite and hence incapable of production before the trial Court can still be produced before the appellate Court, and the sufficient cause required for its non production before the trial court could still be the lack of knowledge about the existence of the document. The inexplicability is mindboggling.

(e) The time provided for filing written statement under O.VIII R.1 has now been limited to one month, with a further extension for another month. It is debatable if time could be further extended under S.148. In one sense it is a welcome limitation. But as said elsewhere in this article it ought to have been made a bit flexible. There may arise a situation where a defendant may not possess necessary records with him. Most may be revenue records, others may be with the sub registry. Then it will become difficult for a defendant even to conceptualize his defence. While one or two months time may be adequate for obtaining records in an ideal circumstances, practical pragmatism informs that considerable delay often is inevitably consumed, for the public officers entrusted with the statutory responsibility are not always expected to act without an extra statutory incentive. In the absence of any provision for amendment of pleadings, too much burden is cast on the defendant. Therefore, the Court should have the power to extend time in rarest of rare cases beyond the two months provided for.

(f) Under O.XIV, where the Court is obligated to frame issues on material points in controversy, its freedom, if not the power to amend or strike out issues has been stripped of in the new look C.P.C. The ante-thesis to the amendment theme may well have its genesis here. What, if an appropriate issue is not pointedly framed, but a decision is still given while dealing with another issue. Incentive is now given for an unscrupulous litigant, who may now file another suit on aspects touching on the issue omitted to be framed in the earlier round, and may contend that what was originally 'observed' was only reasoning of the Court while dealing with another issue, and that under S.11, reasoning is not res judicata (AIR 1963 SC 1122). If a decision is on an issue, it fits in with the definition of res judicata in a second round battle. But if a doubt is raised whether a certain finding is a decision on issue or a mere reasoning, then it becomes an ideal material for a Court room debate. It is humbly felt that lack of precision may consume Court's time.

(g) The next interesting instance of speed based amendment is in O.XVIII R.4 has been replaced. Now chief examination is through affidavit and cross examination is by commission. Shame, a litigant must pay for the Commissioner, who shall be from a panel to be prepared by the High Court. The reason according to draftsman is that most of Court room work is wasted in examination of witnesses. But Court has still time for adjourning cases, which consumes bulk of its time in the name of calling work, to record, if summons has been issued or returned, if counter has been filed, if orders have been extended, and whole lot of other innocuous work. But the all crucial trial work, perhaps the real function of a trial court judge, has been delegated to Commissioners. The Judge will not now have any opportunity to see the demeanour of a witness or the manner in which he answers. A significant casualty is that the Court room ambience, which has traditionally been a time tested lie detector for a witness attempting to perjure himself, now stands lost in the name of saving the judicial time. The amendment attempts to depersonize the trial Judge, which one would have wished in various other aspects of justice dispensation. And then the cost. What a shame that the State should commercialise justice. Is it not the duty of the State to provide justice. After all State receives Court fees. Now what about an indigent person? No provision is made. If the State is concerned about payment of Commissioner's costs then let it create a Fund for the purpose under one of its many legal aid programmes. Insisting on Commission cost is a blatant denigration of Art.39-A of our Constitution and an insult to the citizen.

(h)One baffling amendment has been made to O.XX R.1. Hitherto, under R.1(2), a Judge when delivering a written judgment, shall make available a copy of the judgment for the perusal of the parties or the pleaders immediately after the judgment is pronounced. The amendment dispenses with this requirement. It is amazingly surprising how this amendment helps the advancement of the theme of amendment, viz. speedy disposal. What then a Judge is expected to do? He need not engage in examination of witnesses because that is a waste of judicial time. He is not required to make ready his judgment immediately on its pronouncement. What then are the other more serious jobs that a Judge is entrusted with. May be, he will effectively engage himself in calling work and hear arguments. Here, the draftsman is found awfully wanting. There is no provision for submitting argument notes. This will, not only likely to save considerable judicial time, but also fix up the responsibility of the Judge to delve into the various points argued. It will also aid in a proper performance audit of a Judge. Therefore, in the emerging scenario, how will a Judge be seen to dispense fair justice, when a simple mechanism ensuring his functional accountability is done away with. The laity on the road may have few uncomfortable questions for the draftsman: "Who protects whom? And why?" May be the draftsman may defend his action with his amendment of R.6B. R.6B in its latest form prescribes that copies of judgments shall be made immediately available to the parties on payment of such charges as may be prescribed by the High Court. (In the earlier version only in the case of type written judgments copies may be made immediately available). But experience informs both the lawyer and the litigant that even the earlier provision has been a non starter. There has been a deplorable tendency displayed by some judicial officers who will withhold judgments in their chambers denying the anxious litigant an opportunity to peruse the judgment deciding his right, on the ground that the draft is yet to be corrected. The Code either new or old, does not provide for pronouncing uncorrected draft judgments. It is not an wholesome condemnation of our honourable Judges. But honestly being a vacillating virtue, a few may be tempted to err. After all Judges are human too. Therefore, a procedural provision may still be essential to curb such temptations. When R.1(2) provided for making immediate availability of judgments, at least there will be a statutory compulsion, howsoever dysfunctional the same might be, for ensuring functional accountability of Judges. Then there may arise another peculiar situation: Copies shall be made available on payment of charges for the purpose of preferring appeal. What, if a litigant does not want to prefer an appeal, or does not want to pay the required charge for the copy. Is he not then entitled to peruse the judgment immediately. If he should not, why not?

It’s time we also think in terms of incorporating the decretal portion in the last paragraph of the judgment itself, abolishing thereby the need to draft decrees. The decree is only going to state the cause title, date of institution of the suit, court fees paid, operative portion of the judgment and the cost along with the schedule of property. There is far too much attachment to decrees, for it is the decree which is executed. But by appropriate amendments, time and expense involved can be reduced.

(i) Amendment to O.XLI R. 11 introduces, subtly though, the concept of admission in first appeals when the findings on facts still await a finality. Not surprising for Justice Malimath Committee to have recommended it. But it involves considerable risk, for it requires a sound Judge made of fine judicial temperament, as a pre-requisite. It is imperative therefore, that the first appellate Judges are prepared well in advance for discharging this responsibility, lest there is a greater danger for grave injustice.

(j) As regards Second Appeal crucial amendment has been made to S.102. Now Second Appeal, where the value of the subject matter is less than Rs.25,000/- is barred. Under the present S.102, only those suits of the nature cognizable by Courts small causes of the value Rs.1,000/- were denied the right to Second Appeal. No such qualification is available in S.102. However, the notes on clauses appended to the Bill on the present amendment would like one to believe that only Rs.25,000/- has replaced Rs.1,000/- in view of fall in value of money. There are several provisions in the Court Fee Act which provides Rs.400/- or less as the minimum value of the subject matter, where the same is incapable of proper valuation. Mostly the minimum statutory value stipulated is adopted. If S.102 as amended takes effect and interpreted strictly, then most suits will attain finality after First Appeal.

(k) Amendment to S.115 restricts the High Court's power of revision of order only to cases where an order in favour of the revision petitioner would dispose of the lis. Instead revisional jurisdiction of the High Court could have been deleted. A revisional order probably may dispose of a lis, against an order dismissing an application for rejecting the plaint under O.VII R.11.or one for dismissing the suit for non-compliance with the order of discovery under O.XI R.11, or where a party refuses to give evidence or produce documents under O.XVI R.20. But these are provisions rarely resorted to even before the trial Court.

III. The foregoing discussion is not a product of an exhaustive exercise. Nor the author claims that his views are absolute. After all, a complete commentary on the Code is as elusive as an attempt to achieve perfection. It is a humble invitation to the legal fraternity for a greater, purposeful and justice oriented discussions. Its time to act, for the danger is at the door step.

Precautionary Principle and Environmental Regime

(By P. Leelakrishnan, Advocate, High Court of Kerala)

Sustainable development demands striking a balance between environmental values and developmental needs. No doubt a plethora of problems spring up in this respect and are to be settled. Uncertainty of scientific opinion on questions to be decided is one of them. Necessarily, this makes the decision-maker more responsible and caitiuos. A.P. Pollution Control Board v. M.V. Nayudu(AIR 1999 SC 812) seized of this problem and formulated precautionary principle as a guide in avoiding the crisis of decision making.

The facts of the case show that the State Pollution Control Board refused to grant the respondent company no-objection certificate and the consent required under the Water Act 1974, on the ground that the process of manufacturing B.S.S. grade castor oil and glycerine has pollution potential and that the proposed site within prohibited zone often kilo-metres around the lakes supplying drinking water was objectionable. The company succeeded to get the case remanded in a statutory appeal. The appellate authority, on the basis of the reports and affidavit filed by an experienced scientist, held that the board should not have refused consent merely because an industry produces hazardous substance but could have given consent with conditions and safeguards. The High Court adopted a deferential approach to this opinion and did not interfere. The appeal before the Supreme Court was filed by the Pollution Control Board. The Supreme Court neither agreed with the board nor endorsed the view of the appellate authority. Interestingly, they said that appellate authorities and Courts without technical inputs are not competent to decide matters involving environmental expertise. Hence, they thought it better to-refer the matter for investigation by National Environmental Appellate Authority (NEAA) and report. Although in the process, they laid down certain significant propositions and suggestions for law reform, the Supreme Court was conspicious in dwelling on the 'precautionary principle' that should act as a guide in adopting cost-effective measures for preventing degradation of environment.

Precautionary Principle

Precaution is always necessary to avert possible dangers. This is true of steps to avoid environmental mishaps. This is especially so because even scientists may not be sure whether or not there would be harm to the environment and if there is one, the extent of the environmental harm as a result of implementation of a development project. On the global problems such as depletion of ozone layer and green house effects the scientific community had held driametrically opposing views. Consequently, precautionary measures and standards of behaviour were suggested at the international forums in order to tide over the difference of opinion. The concept of precautionary approach for protection of environment was rendered international acceptance at the U.N. conference in Rio in 1992. The Rio Declaration lays down:

"In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation" (Rio Declaration, Principle 15)

One adopts precautionary approach when there is a reasonable apprehension of environmental harm behind a proposed action. The precautionary principle has becomeas part of the customary law since many Nations began to adopt the approach for preventing irreversible environmental harm.

Stockholm Conference in 1972 was the first attempt at instilling the world awareness for environmental protection. It was less concerned with development than Rio Conference of 1992 was. Stockholm lingered on a theory of assimilation.1 The idea was that harm to the environment would be assimilated as the environment had the capacity to assimilate substance so as to render them harmless. The theory becomes inapplicable when one does not determine in advance the extent of harm and the extent of the assimilative capacity. It also becomes impracticable when one finds no suitable technical expertise available to confine the harm within limits of the carrying capacity. It is in this background that the Rio Conference in 1992 recognised the precautionary approach as a useful strategy for the nations to follow for the purpose of preventing degration and improving the quality of environment.

Citing the principle as recognized by the Rio declaration, the Nayudu's case seems to suggest that it is better to err on the side of caution and to prevent irreversible environmental harm than to run the risk and to get entangled in a gamble. The principle of precaution no doubt involves the anticipation of environmental harm; it necessitates measures to avoid it or to choose the least environmentally harmful activity. The uncertainty of science had led to certain dangerous situations in the past. It is science that has created such situations in its march towards new frontiers. The CFC and DDT were considered environmentally benign when they were first developed.2 But scientists themselves have come up worried over their adverse effects on the environment later on. The Nayudu's case held that the precautionary principle is based upon such scientific uncertainty. The Court went on

"The environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake; precautionary duties must not only be triggored by suspicion of concrete danger but also by (justified) concern or risk potential."(Supra, n.1, pp.820, 821.)

What is stated in the Rio declaration is 'precautionary approach'. The expression 'approach' does not lose its character as a principle.

Burden shifting

Highlighting the precautionary principle, the Supreme Court reiterated the dictum of Vellore Citizens Forum'scase that 'the burden is on the developer or the industrialist to prove that his action is environmentally benign'3. This is because the adverse effects on environment is unanticipated. The effects may be serious, irreversible and non-negligible. Inevitably, the one who attempts to change the status quo by implementing the proposed project has to prove that the activity is environmentally benign.4 Imposition of such an onerous duty on him makes the developer behave in a responsible manner from the very beginning. He shall plan and design the project with in-built safeguards. In other words, he shall never leave any stone unturned for introducing cleaner technologies in his ventures. However, the shifting of the burden will not fully solve the problem. The need to identify instances of non-negligible risks still remains.

The idea behind the precautionary principle is that scientific uncertainty must not be a cloak for non-regulation. Preventive and remedial strategies should not wait till detrimental effects on the environment are conclusively proved by scientific evidence. In an experiment, scientist can gather information to confirm or disprove a hypothesis. Regulatory action is not like an experiment; it cannot afford to await certainty.

Acceptance of precautionary approach into our legal system was gradual but specific. When reclamation of wetlands was being made for the purpose of sitting an industrial centre, the Calcutta High Court prohibited further reclamation holding that benefits of wetlands to the society cannot be weighed on mathematical nicety.5 In order to save Taj Mahal from destruction the Supreme Court held that 'even one percent change' should not be taken when the industries in Taj Trapezium were asked to go outside the region or change over to harmless natural gas.6 While in the case of wetlands the Calcutta High Court adverted to, and based their orders, on the precautionary principle. Both the cases are illustrations to show that when there is some evidence of a likelihood of harm to the environment, the precautionary principle be applied. Changing over from coke/coal based industry to natural gas sounds the harbinger of a recognition of clean technology which is the effect of the precautionary approach.

The Supreme Court in Nayuduwas confronted with the difficulty in chosing between the decision of the Board, and the orders of the appellate authority. The decision not to grant NOC looked to be quite reasonable and environment friendly to the common man. Though it was constituted only of a Judge retired from the High CourtJudge, the appellate authority adduced evidence from an environmental scientist to prove that the industry could be run within the locality on conditions laid down by the Board. Obviously, the Supreme Court was not at all agreeable to the direction of the appellate authority to grant NOC and consent even with conditions. NEAA consisting of a Judge who had retired as the Chief Justice of India and of a team of technical experts is found as the most competent authority decide the questions. The Supreme Court wanted to adopt a precautionary approach even in reviewing the decisions. No doubt precautionary principle will have its sway not only in judicial review but also at the original level of environmental decision making. It is mainly addressed to the administrative process that helps to evolve environmentally viable development project and to support every effort for sustainable development.

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1. Stockholm Declaration 1972, Principle 6. "The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems".

2._. Daniel Bodansky, "Scientific uncertainty and the precautionary principle", Environment, vol.33, September 1991, P.4.

3. Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 at 2721.

4. Supra n. 1.821.

5. People United For Better Living in Calcutta v. State of West Bengal, AIR 1993 Cal. 215, P. 231.

6. M.C.Mehtav. Union of India, AIR 1997 SC 734 at 762.

Christian Law on Marriage and Divorce -

Judicial response and inadequacies of legislative proposals

(By Dr. Sebastian Champappilly, Advocate, Ernakulam)

Legislative intervention in the laws relating to marriage and divorce among Christians in India was made more than a century ago. As far as Christian marriages in India are concerned, by and large, the law regulating solemnisation is the Indian Christian Marriage Act of 1872 but the Indian Divorce Act, which deals with the law of divorce of persons professing the Christian religion, was enacted in 1869, i.e. before the enactment of the law on marriages. However, these pieces of legislation were not uniformly applied through-out the territory of India, for political and social reasons.

As far as Travancore and Cochin areas of the State of Kerala are concerned, Christians never had a law to regulate canonical or customary marriages. The position remains the same even today. However, as regards divorce, the provisions of the Indian Divorce Act of 1869 came to be extended to these areas by virtue of the provisions enacted in the part B States (Laws) Act of 1951. Till this was done, the Christians here, had no law for obtaining a divorce by resort to the processes of the Civil Court Yet, declarations of nullity of marriages were made both by the Civil Court as well as by the ecclesiastical authorities. And there was no occasion for a conflict between these proceedings till the year 1986. From 1986 onwards conflicts arose as a result of a series of decisions commencing from Kurian v. Alphonsa (1986 KLT 731), Jose v. Alice (1988(1) KLT 890 (DB), George Sebastian v. Molly Joseph (1994(2) KLT 387 (SB)), to Molly Joseph v. George Sebastian (AIR 1997 SC 190). Now, therefore, matrimonial reliefs for Christians can be had only under the provisions of the Indian Divorce Act. And the Act itself is alleged to be discriminatory.

Let us examine whether the provisions of the Indian Divorce Act in these matters render us equality before law and equal protection of the laws, which is a constitutional mandate (See Article 14 of the Constitution of India). It appears that whenever legislation is made in these matters, Christians are totally ignored. Though attempts were made both by the Community and the Legislative Agencies like the Law Commission of India, to suggest reforms in these areas of law, they all fell on deaf ears. The Bills introduced in Parliament have not been enacted so far. It is patent discrimination that the Marriage Laws Amendment Act of 1976 was not made applicable to Christians. For the matter, the plight of Christians was not even thought out when the Family Courts Act' of 1986 was enacted. Now, therefore, Christians in India are left to be governed by century old archaic laws, both substantive and procedural, which have no bearing on the social mores of the present century.

As regards grounds of divorce, women were discriminated against and are still discriminated except perhaps in the State of Kerala and Maharashtra. In Kerala, by virtue of the decision in Mary Sonia Zacharia (1995 (1) KLT 644 (F.B.)., women are given liberal grounds of divorce. Now Christian wives can file petitions for divorce on any grounds such as, adultery, bigamy, rape, sodomy, bestiality, cruelty, desertion for two years or change of religion and remarriage. However, the benefit (or otherwise) of the decision in Mary Sonia Zacharia has not been made available to Christian husbands who are left with only one ground i.e. adultery committed by the wife after the solemnisation of the marriage. This aspect of discrimination was attempted to be brought to the notice of the Supreme Court in Anil Kumar Mahsi v. Union of India (J.T. 1994 (4) SC 409 = 1994 (2) KLT (SC) 399).Unfortunately, the Supreme Court repelled the contentions of the petitioner in that case and held that S.10 of the Act is not discriminatory to men. However, there is no sound reasoning given by the Court and hence it is impossible to subscribe to that view and hence we have to hold that the discrimination continues. It is true if one looks at it both in inter-community and intra-community contexts.

Further, though Christians can approach the District Courts/Family Courts for obtaining matrimonial reliefs, the orders of the said Courts are subject to confirmation by a Special Bench of the High Court, which again goes to add to the woes of Christians. This involves more money and time. Again, under S.16 of the Act, a decree for divorce for Christians initially can only be a decree nisi which again has to be made a decree absolute after a period of six months from the date of decree nisi. Such provisions are not there in the law applicable to other communities. Though the Courts in India have time and again alerted the Legislature and pointed out the necessity for doing away with such provision (See Bincy Mathew v. Sabu Abraham 1998 (2) KLT 1100 (S.B.). Also see Pragati Varghese v. Cyril George Varghese, AIR 1997 Bom. 349 (S.B.)), the Legislature is not so fax awake. This calls for a concerted attempt on the part of the leaders of the community to be aware of the need of the hour so that Christians may not drown deep into social problems that may undermine the very existence of the family system and values in the community.

Attempts made for reforms

As regards the law of marriage and matrimonial causes of Christians, statutory law has been found to be not satisfactory both by the community and by the Courts (See 1990 (1) KLT 130 = (1985) 3 SCC 62 = AIR 1980 Delhi 275.). The community took initiative for reforms and indeed Private Bills were introduced in Parliament. Thereupon, the question of revision of the law on the subject was referred by the Government to the Law Commission of India which after a deep study submitted its 15th Report on the Law of Christian Marriage and Divorce on 19th August, 1960.Nothing came out of this Report. However the Law Commission again went into various questions and produced it's 22nd Report. On the basis of this Report, the Government of India introduced the Christian Marriage and Matrimonial Causes Bill, 1962 in the Lok Sabha, to amend and codify the law relating to marriage and matrimonial causes among Christians. It was however referred to a joint select committee of the Parliament. And the Bill was reported on by the Joint Committee promptly. But it lapsed when the Lok Sabha was dissolved.

While matters remained so, the Chairman of the Law Commission received various representations. On these representations, a revision of S.10 of the Indian Divorce Act, 1869, was taken up by the Law Commission suo motu in view of the existing element of discrimination based on sex under the Indian Divorce Act as applicable to Christians in India. The Commission, in its 90th Report dated 17th May 1983, also thought that in the field of marriage law, extensive developments have taken place both in law and in society. Therefore, it was found proper that these developments should be taken note of and the law applicable to Christians be brought in tune with the times. The Commission found that an amendment to S.10 of the Indian Divorce Act was a constitutional imperative. It proposed an amendment of S.10 of the Indian Divorce Act, 1869 as an urgent measure. In spite of such an urgency being pointed out by the Law Commission, the Government did not come forward to bring in new legislation on the subject.

By 1983 the campaign for changes in the Christian personal laws started gathering momentum. Women activists issued an appeal to reform the law of marriage, divorce, succession and also adoption. Their ultimate object was enactment of a common law for Christians in the matter of family law, recognising the equality of sexes. By 1988, women activists came up with a proposal suggesting essential changes required in the law. Independent of these efforts, the Christian Marriage and Matrimonial Causes Bill, 1989 was introduced in the Lok Sabha as a Private Member's Bill. In the meanwhile, the women activists prepared drafts on the Christian Marriage and Matrimonial Causes Bill, 1989, Indian Succession Bill and the Christian Adoption Bill. At this stage other organizations of Christian women came forward to support the Bill introduced in the Lok Sabha. The Joint Women's Programme (J.W.P.) along with the Church of North India drafted a new Christian Marriage and Matrimonial Causes Bill, 1990. The draft of this bill was discussed by the representatives of various Churches, including the Catholic Bishops Conference of India (C.B.C.I.), the National Council of Churches, the Church of North India, the Church of South India etc. This bill was submitted to the Government in February, 1992. In the meanwhile, the Catholic Bishops Conference of India, after deliberations and consultations, evolved a different strategy as the general feeling among them was not to go in for a new bill that would take too long to be enacted. Therefore, they put forward a proposal to repeal the Indian Divorce Act, 1869 and to amend the Indian Christian Marriage Act, 1872 by incorporating all the grounds available under the Special Marriage Act, 1954, including the provisions for "divorce on mutual consent". The Law Ministry of the Government of India had also taken a stand that the Christian Personal law would be changed as soon as the proposals as approved by all the Churches in India were placed before the Government.

By now, differences of opinion reached a clear divide between Catholics and Protestants. As there was no way out of the impasse, the standing committee of the C.B.C.I. at its meeting (in September 1993) decided not to object to the presentation of the draft Bill to the Government. It also decided to help finalizing the draft, so that the Bill has, as far as possible, a Christian character. Finally, Christians of all denominations - the Catholic Bishops Conference of India (C.B.C.I.), 27 member Churches of the National Council of Churches of India (N.C.C.I.) and others - have come to a consensus that the Indian Divorce Act, 1869 should be repealed immediately and the Government be requested to do so.

While so the Bill of 1990 was referred to the Minorities Commission. In the Minorities Commission, certain objections were taken. A new Bill after clearing these objections under the caption, the Christian Marriage Bill, 1994 came to be formulated. This was presented to the Government with the approval of all known Christian denominations in India. It is yet to be introduced in Parliament.

It is fruitful, at this juncture, to have a look into the various proposals in the Christian Marriage Bill, 1994 which may need further improvement. Clause 3 of the Bill provides:-

"Marriage of Christians solemnized according to Act:-Every marriage between persons one or both of whom is or are Christians, may be solemnized in accordance with provisions of this Act: except in the case of such tribal Christians whose customs and practices demand that both be Christians."

Clause 5 specifies persons authorized to solemnize marriage as follows:-

"Persons Authorized to solemnize Marriages:-Marriage may be solemnized under this Act (a) by any Minister of a Church, or (b) in the presence of marriage Registrar appointed under this Act; or (c) any licensed Minister."

And Clause 57 prescribes penalties for unauthorized solemnization of marriages thus:-

"Solemnizing marriage without due authority: -Whoever not being authorized by S.5 to solemnize a professes to solemnize under this Acta marriage between persons one of whom is a Christian, shall with imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to two thousand rupees".

A combined reading of Clauses 3, 5 and 57 would lead us to the conclusion that any person can solemnize a marriage between Christians or between a Christian and a non-Christian if he does not profess to solemnize the marriage under the provisions of this law as it is not made mandatory that a Christian marriage be solemnized only under this law. Thus Clause 3 leaves room for even a small group of Christians to conduct their marriages in accordance with their own preferences. Once the law is codified, it is not desirable in modern times to allow such a situation to exist. If at all needed, the only other option should be the one under the Special Marriage Act, and it must be specified too.

Clause 4 of the Bill specifies the conditions for a Christian marriage. Sub Clause (iv) of Clause 4 provides:-

"The parties are not within the degree of prohibited relationship, unless the custom or usage or rules of the church governing each of them permits of a marriage between the two."

The attempt to prevent marriages within the prohibited degrees of consanguinity is made ineffective as even a small group can claim exemption by making rules to bye-pass the prohibition.

The provisions for appointment of Marriage Registrars and registration of marriages do not take into account the ground realities. For example Clause 10 provides:-

"Magistrate when to be Marriage Registrar:-When there is only one Marriage Registrar in a district, and such Registrar is absent from such district, or ill, or when his office is temporarily vacant, the Magistrate of the district shall act as, and be, Marriage Registrar thereof during such absence, illness or temporary vacancy."

When the District Magistrate is to solemnize a marriage under the provisions of Clause 10, it is most likely that the marriage may not be solemnized in accordance with the convenience of the parties to the marriage, as the District Magistrate is already burdened with other responsibilities under numerous other enactments. Further, there are no provisions in the Bill for taking custody of or maintenance of Marriage Register by the District Magistrate and this would further create practical difficulties in making entry of a marriage in the Marriage Register. In fact the elaborate provisions made in Clauses 7 to 23 can be condensed by providing that persons authorized under clause 5 to solemnize a marriage be authorized to issue a Certificate of Marriage which should be registered in a Marriage Register to be kept by the Registrar appointed under the Registration Act 1908 and such Registrar can be conferred with the powers of a Registrar under the law on marriage. A provision for mandatory registration of all Christian marriages before a Civil Authority would only be in the best interest of the community for all the purposes of law in modern times. Thus, the different procedures provided under Clauses 15, 16 and 17 in matters relating to issue of certificate of notice of intended marriages, objections to certificates and applications to District Court and the binding nature of the orders of the District Court can all be brought within the simplified procedure. The different procedures provided under the bill, to be adopted by different denominations of Christians make the Bill voluminous and it looks like a Church Union Agreement rather than a piece of legislation. Here clarity and precision have become the casualties.

Further, in this Bill, Clause 4(ii) enacts that a marriage may be solemnized under the Act if "at the time of marriage, neither party is of unsound mind".And any marriage solemnized in contravention of this condition is declared to be a nullity under Clause 28. At the same time Clause 29(3) makes a marriage only viodable if "either party was a lunatic or idiot at the time of marriage".Thus the distinction between "void" and "voidable" is lost sight of in the Bill and the confusion becomes more confounded on further analysis. It is almost impossible to prove that a party to the marriage was of unsound mind or lunatic at the time of marriage. If the party was of unsound mind and remained to be of unsound mind in a case of incurable mental illness, the presumption of incapacity to contract is not recognized even in this Bill. This difficulty has been experienced in the working of the earlier enactments on the subject and the present Bill has not improved the situation in any way.

The provisions made under Clause 29(2) for declaration of nullity of marriage on the ground of non-consummation is again bereft of clarity especially in the background where the English Courts have held that even the use of a condom amounts to non-consummation of marriage. Hence a proper definition of the term is essential as otherwise the Courts will be left with no option but to go to English precedents on this issue.

Again the provisions incorporated in Clause 29(4) for recognition of the decree of nullity of marriage given according to the rules and regulations of the Church is ineffective as a decree of nullity is again required from the Civil Court under Clause 29 itself. The provisions and procedure followed under the Portuguese Civil Code in Goa could be followed in this matter.

Yet another provision for declaration of nullity of marriage as given in Clause 29(5) is that consent for the marriage was obtained by "fraud".And the term "fraud"has been eluding a clear definition throughout the last more than a century and the Courts went on holding that even concealment of pregnancy contracted through someone other than the man who contracts the marriage would also not amount to fraud. At any rate there has been no consistency in these matters. Hence an appropriate definition of the term "fraud"is essential, and it is to be deliberated upon and decided whether the provisions incorporated in the Marriage Laws (Amendment) Act, 1976 should be applied to Christians as otherwise the inclusion of that ground for declaration of nullity of marriage is of no practical use.

The further provision in Clause 37(b), that the petitioner should be "residing "in India at the time of presentation of petition, would lead to procedural difficulties in modern times. In many a cases the petitioner may have his domicile in India but may be residing outside India. Therefore, it is desirable and expedient to provide that the petitioner should have his/her domicile in India or be residing in India at the time of presentation of the petition.

The provisions made in Clause 44 for maintenance pendente litefor the applicant alone is conceptually wrong and legally unsustainable. The benefit must be given to the respondent in the proceedings also as otherwise it would lead to miscarriage of justice.

Further under Clause 2(h) "divorce "is defined as the termination of civil effects of marriage, and the term "nullity" is left undefined, whereby a nullity granted by the church is to be recognized by the civil court under Clause 29(4) whereas no corresponding duty is imposed on the Church whereby the present situation of conflict with the civil court is still left open.

And the provisions contained under Clause 74 dealing with repeal of enactments have not specifically covered the law in force in North East India and the Cochin Christian Civil Marriage Act, 1920. In short, the Bill requires re-examination and re­drafting to suit the present stage of development of the society.

It is discriminatory to subject the Christians in India to a law that does not conform to the social mores of their times, on the ground that other communities have not yet been in a position to accommodate themselves to the constitutional goal. What is necessary at tins stage is a more secular law in tune with the times and in accord with the constitutional mandate.