S.303 of Indian Penal Code - Publishing the Same in the

Statute is not Contempt

(By John S. Ralph, Advocate, Cochin)

I have read the article"A DEAD SECTION IN THE PENAL CODE STILL LIVES ON" published in the Journal section of KLT at Page 36 of 2002 (1) KLT. But it seems that the view expressed in the said article that the book publishers are still printing S.303 in the Indian Penal Code without obeying the dictum (and in contempt) of the Apex Court in Mithu v. State (AIR 1983 SC 474) is not correct. The Supreme Court can declare any law to be unconstitutional and strike it out. But the effect would be that it will not come into operation even if the same continues to be in the statute. The State or the Union or any person aggrieved or affected by the dictum can challenge the same before a larger Constitutional Bench and get it overruled. Then the law will again come into operation. The effect of the dictum above mentioned is that it is in force since it is not challenged before a larger Bench.

A similar example we will find in the Indian Divorce Act. In Mary Sonia Zacharia v. Union of India reported in 1995 (1) KLT 644 (FB) the Hon'ble High Court of Kerala held that in S.10 of the Indian Divorce Act the grounds available for the petitioner wife will stand independently of the word "adultery coupled with". And the effect was that a wife can present a petition for divorce on cruelty simpliciter. But it cannot go out of the statute book on two counts. First of all the law declared or interpreted by the High Court of a State would not be binding on other States since it is a Central Statute and it is needless to say its binding nature on the Supreme Court. The legislature later on decided to make amendments on the Divorce Act and now it has come into operation and the same will be followed by the courts subject to the approval of the constitutionality of any section in the amended statute. Till then the section was printed and published as it stood before the dictum of the court. In the same case which was reported in 1995 (1) KLT 130, Justice K.T. Thomas (as he then was) issued a direction to the Parliament to make necessary amendments in the Indian Divorce Act within six months from the date of the order. But it remained in the Parliament for more than a decade to make amendments in the statute. It further shows that the court cannot ask the Legislature to legislate on a particular subject.

The decision whether a particular section of law has to be continued in the statute book or otherwise has to be taken by the Legislature in its law making wisdom. The Court can declare the constitutionality of any law but cannot take it out of the statute. So the Court may be correct in declaring S.303 of the Indian Penal Code as unconstitutional but publishing the same in the statute book is not contempt and is also justified for the reasons above mentioned.

Divorced Muslim Woman's Rights

(By S.A. Karim, Advocate, Thiruvanandapuram)

The Muslim Women (Protection of Rights on Divorce) Act, 1986, speaks about the rights of Muslim divorced woman. (Hereafter refers the Protection Act.) S.3 of the Act reads-

(I) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to -

(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;

(b) where she herself maintains the children born to her before or after divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;

(c) an amount equal to the sum of mahr or dowry agreed to be paid to her at the time of her marriage or any time thereafter according to Muslim law; and

(d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relative of the husband or his friends.

Accordingly, the divorced woman is entitled to reasonable maintenance, maintenance to the children below two years, mahr, and all her properties. Muslim scholars say the Protection Act is in confirmity with Shariat, the Muslim personal law. The wording of the Section is singular and seems to be an one time act in one's life. In other words, it is a rarest of rare case. But the fact is otherwise.

The Protection Act is controlled by Shariat, the Muslim personal law. In our country Mulla's Principles of Mohammedan Law is one of the authorities of Muslim Personal law. (Hereafter refers Mohammedan Law). S.255 of the Mohammedan Law speaks about marriage.

It reads a Mohammedan may have as many as four wives at the same time but not more. If he marries a fifth wife, when he has already four, the marriage is not void but merely irregular.

S.308 of the personal law speaks about divorce by talak.

Any Mohammedan of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any reason.

Though the personal law says this way, Muslim scholars say marriage is monogamy and bigamy is exception. In the same breath the scholars repeat divorce is the most hated thing in Islam. If scholars are true, test book writers like Mulla have committed henious crime on Muslim community. However, a section still takes shelter under the provisions of marriage and divorce of the personal law. It means marriage and divorce continue more than once by the same person. Where there is divorce, there is Protection Act. So the right of a Muslim woman cannot be limited to an one time affair in life. Every time a woman is divorced, she is entitled to invoke the provisions of Protection Act.

Daughters' Maintenance

(By S.A. Karim, Advocate, Thiruvananthapuram)

In peaceful and happy circumstance personal laws of either Hindu, Muslim or Christian do not speak about the maintenance of wife, children and parents. In troubled and broken families the question of maintenance arise. There comes the application of respective personal law. S.26 of the Hindu Marriage Act, 1955 deals with custody, maintenance and education of minor children. Likewise, S.20(2) of the Hindu Adoption and Maintenance Act, 1956 speaks about maintenance of illegitimate and legitimate minor children. Maintenance provision is absent in Christian Laws. As per S.3 of the Indian Majority Act, 1875, a minor attains majority on the eighteenth birthday. So the obligation of maintenance to one's children terminates on the eighteenth birth day.

Shariat is the personal law of Muslims. Mulla's Principles of Mohammedan Law is one of the authorities on the subject. In it's eighteenth edition, S.370 relates to maintenance of children and grand children.

S. 370 reads –

(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (S.352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.

(2) If the father is poor and incapable of earning by his own labour, the mother, if she is in easy circumstance, is bound to maintain her children as the father would be.

(3) If the father is poor and infirm and the mother is also poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstance.

Hindu personal laws terminate the obligation of maintenance of the children on attaining majority. Shariat continues the obligation of maintenance of daughters till marriage. S.125 of the Criminal Procedure Code, 1973, hereinafter refers the Code, says about the order for maintenance of wives, children and parents. It is more or less similar to that of S.20 of the Hindu Adoption and Maintenance Act. While personal laws come under Civil Courts, S.125 of the Code, comes to the Criminal Courts. This is the notable difference.

The relevant portion of S. 125 reads –

(1)If any person having sufficient means neglects or refuses to maintain -

(b) his legitimate or illegitimate minor child, whether married or not unable to maintain itself, the Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife, or such child, father or mother at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time directs.

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

S.125 of the Code intends to prevent vagrancy and to provide basic necessities to the wife, children, and parents. It equally desires to protect the morality of the society. In our country society imposes very many restrictions on teen aged girls. It controls their free mixing and earn their livelihood, like boys of the same age. In such a situation, maintenance on teen aged girls is stopped on attaining majority. It is nothing but cruelty of law. So the maintenance provision of the Code needs some provision to get maintenance to daughters either she is married or capable of maintaining herself.

Chief Justice M.S. Menon - As I knew him

(By V. Bhaskaran Nambiar, Former Judge, High Court of Kerala, Former Advocate General, Kerala)

Early in the month of December, 1959, when Justice Ansari came, on transfer from Andhra Pradesh to take charge, initially as a Puisne Judge and soon to be called upon to preside over the destinies of the High Court of Kerala, it did cause a few flutters around, as it was likely to affect the then senior most Kerala Judge Sri. M.S. Menon. Chief Justice Ansari carried with him a rich heritage of culture and elegance and erelong, his appointment as Chief Justice gave way to acceptance and recognition in no uncertain manner. The eloquent tribute made by Justice M.S. Menon (as His Lordship then was) on the retirement of Chief Justice Ansari on the 29th September 1961, is worth repetition. He said:-

"I disliked - initially - your coming. I dislike - intensely - your going. And between those two attitudes, one of reluctant acceptance and the other may I say, my Lord, of abiding affection, lies the grand measure of your great success.

It has been said of Rufus Isacs, whom we later knew as Lord Reading, that he never challenged; that he just charmed his way through life and opposition. I never realised the beauty of that process until I saw you in action."

M.S. Menon was a great Judge, a constitutional expert, a voracious reader and a brilliant conversationalist with an extraordinary command of language. His judgments were concise and crisp and each judgment would contain at least one punch line. His classic statement of the role of headmaster in one of his illuminating judgments reads thus:-

“The post of the head master is of pivotal importance in the life of a school. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The right to choose the headmaster is perhaps the most important facet of the right to administer a school”. This passage is quoted in several decisions of several courts including those of the Supreme Court.

Regarding Co-operative Societies, he held thus:- "Co-operative Societies are creatures of Statute, controlled by their constitution and concerned with their contracts."

He was a genius as "Genius finds its own road and carries its own lamp". Great geniuses have the shortest biographies" In M.S. Menon's case he gave the shortest judgments.

I knew him personally since my visits to "Aranyka", his abode in the hills of Munnar where he rested, after he retired from the Bench. Every visit was memorable. It was scintillating conversation. "A single conversation across the table with a wise man is worth a month's study of books". "Good talk is like good scenery - continuous, yet constantly varying and full of the charm of novelty and suspense". All of us, who met him, cherished the time, however short, we spent with him. He was up-to-date with the latest information about all his friends, even though he was far away from Cochin. He heard that one of our friends was being tipped for the Lt. Governorship of Andaman islands. Quipped Mr. Menon, 'He should have gone there long ago (Formerly, prisoners sentenced to life imprisonment were deported to Andaman islands under British Rule).

In the same strain he was referring to a contempt petition filed against a prominent personality. He said 'Insanity' was his excellent defence.

He stated 'never in the history of mankind did one man grow four years older in one year's time (referring to the correction of the date of birth of a Judge and the bio-data of the Judge in two consequent annual issues of the All India calendar.)

I saw Justice M.S. Menon for the first time in Court in 1958 when I shifted my practice to the High Court and joined the office of Shri. V.P.G. Nambiar who himself became the Chief Justice of the High Court later. It was a treat to watch Justice Menon on the Bench especially when you are not the counsel appearing in any case.

Let me narrate a small incident. A company lawyer was arguing a question of limitation. I was sitting in one of the backbenches carefully following the arguments. I knew there was a decision on the identical question - but not under the company law - which was not being placed bfore the Court. Fortunately, the particular law journal was on the table in front. I took the journal, flagged the page, slowly paced my steps to the front row and handed it to the counsel. Justice Menon was watching. The counsel opened the book and read the wrong head-note. Justice Menon thundered. "Some lawyer, sitting in the corner of this court, not knowing anything about the case, thrusts some book into your hands and you read it. Is this the way you argue before a Division Bench? The lawyer immediately closed the book and cast it aside. It was for me, some small insult; but I was young and was not disheartened; I again went up, took back the journal and showed the lawyer the correct head-note. The lawyer started reading this head note, which was exactly on point. Justice Menon yelled. "Some lawyer, sitting in the corner of this court, follows your argument, gets the correct decision and brings the book to you. Even then, you do not know where to read. Is this the way you argue before a Division Bench? He gave me a nod of approval.

We exchanged some letters. Certain memorable passages ran thus:-

"The isolation of the old is a very real thing and one has to be 77 to really appreciate such kindness and consideration".

"The solace of my sunset years, however, will not be the recollection of the days gone by, but the prospect of reading the daily column that the Manorama now devotes to the High Court of Kerala. That column as you know is far more popular than the adventurers of Kunju Kurup or the recipes of Mrs. Mathew. I admired, however, the quotation from Long fellow:-

"Lies of great men all remind us

We can make our lies sublime,

And, departing, leave behind us

Footprints on the sands of time"

I wrote on 19.8.95 thus:-

"Pollock, the great Champion of Common Law rights never referred to any common law right of a writ in the nature of quo warranto. I realise where greatness stands, when learning counts. I understood that quest for knowledge seems to be a question mark of life. Once a dwarf always a dwarf. A giant is a giant still."

He replied:-

"You write extremely well. And I am sure you developed your reading habit many, many years ago. The trouble with many of our friends is that they start reading only after the footlights are on and the curtain has gone up."

"According to the Chief Justice as reported in the Manorama, Hindus pray before they take their bath and the water closet in the bathroom is a hindrance to contemplation. Apparently the CJ is not aware of the fact that Martin Luther evolved all the canons of the reformation while sitting on his commode and that it has been said that the Reformation is really due to one man's constipation."

"I would like to die as TCN did, without pain or dependence; and proclaiming to all concerned that the difference between life and death is only a gasp of breath."

"The picture of the High Court in this year's card looks not dazzling but dizzy. The figure in a black coat with its steady gait, however, provides a welcome relief. I suppose it represents the Chief Justice. If the reports I get are correct, he seems to be doing better than all his predecessors including the one I have known for the past 79 years and over."

The CJ's card is very attractive. I wanted to go in for a similar card when I was in service. Justice Joseph prevented me from implementing my desire on the ground that the Kathakali artiste in the full glory of his professional regalia might be misunderstood as a comic representation of one of my brothers on the Bench.

Sophocles said, "Nobody loves life like an old man". I am certain that he was wrong.

In retrospect my only achievement seems to be an achievement in longevity.

Maurice Chevalier, the French Comedian, was asked when he was very old, 'How do you feel ? His answer was - and mine will be - not bad, considering the alternative.

11.11.1989

My dear Justice Bhaskaran Nambiar

Just a line to offer you my congratulations on the successful completion of a grand term of office as a Judge of the High Court of Kerala. There-is nothing more desirable in life than the approval of the men whose approval you approve. And that you have in an abundant measure now and forever.

From Raj to Rajiv and then to a Raja is the story of our times. Rajiv who used to walk with a battalion in front of him now tramps with just an Italian behind him. And Pratap, who now parades on a tiger signing for a song for Singh, will soon provide a meal for his mount. What does it matter? India that is Bharat, a playmate of Assyria and Babylon will go marching on, and on...

14.3.1990

Another Budget is now round the comer. You may declaim with gusto the following rhyme on revenue by an American politician as you listen to the speech of the Finance Minister on the 19th of this month.

"Taxed on the coffin, taxed on the crib,

On the old man's shroud, the young babe's bib,

To fatten the bigot and pamper the knave,

We are taxed from the cradle plumb into the grave"

6.3.1991

I shall be 84 years of age in June next. And an advanced age like that as you know is a terminal illness for which a man knows no cure.

25.6.1991

At 86 plus, don't come to see the empty cage after the bird has flown/don't hasten to the silent beach after the boat has gone.

My days at the Bar and on the Bench now look to me like the days in another man's life. A few friends like you still remain and this is a great consolation. There is a new beatitude for them: "Blessed are they who make it known/that I am loved, respected and not alone. And blessed are they who ease the days of my journey home, in loving ways".                                                                                                            17.12.1993

Robert Frost was right when he said that Infancy and old age are twins in Time.

M.S. Menon passed away on the 27th of November. He has caught the 'boat' and left the shores. A judicial stalwart and a respected soul is no more with us. Munnar, the beautiful hill station in Kerala, has lost its literary attraction.

Justice V.R. Krishna Iyer

A Law- Human Rights Sage and a Complete Man*

(By T.P. Kelu Nambiar, Senior Advocate)

I feel lofty and flushed with pride to have had the distinction of being one of the felicitators at this festive function. My head bows and body bends before the wizard of law and discerning, strident social activist.

Sri. Krishna Iyer belongs to the whole of India and all communities and parties. He is a man who has discovered the ‘theory of everything’. He has an enviable reputation for forthright criticism and statements. His statements are a big draw for the common man. Sri. V.R. Krishna Iyer is the best ‘insurance’ of every Indian, for he knows India better than any other. In this extraordinary age (of nuke warfare, aircraft-borne suicide squads and biological weaponry), there is no doubt that we need a ‘counter’ like Sri. V.R. Krishna Iyer. He is the prophet of the space age. While a Judge, he was the most popular and outstanding among his peers. He was a Judge with brilliant beginning. That the Bar matters, he, as a Judge, did not forget. He never considered the Bar as a bystander of the judiciary or the sad sack of the judicature. He never considered advocates as less than fully human. This said, I cannot but point out that as a Judge, he never exhibited arrogant, unilateriam, and did not function in a commanding mode. He never functioned as a 'justice police'. On appointment as Judge, he never thought primarily of, only, status, powers and superiority, but of duties and functions. He was a Judge who had great resource and invention. He never crossed the Line of Control demarcated for Judges in their behavior on the Bench and off the Bench. He advocated a detailed rule-book governing the conduct of Judges. He has declared that the court is no casino.

In his legal practice, he was a spin doctor among lawyers; and Sri. V.R. Krishna Iyer and success seemed to be made for each other. He was referred to as the Terrific VRK. He was the flag-ship of the legal profession. For him, legal profession was an adventure. He cannot be proud of his own calendar and culture. He is a profound portrait of a full man.

Communication has always been one of Sri. Krishna Iyer's best known strengths. He has been the fixture of the media in Cochin for the last so many years. His reactions successfully make head-lines and crowd the air-waves, when he used to be guizzed on varying topics. He spared no punches in hitting out at the erring leaders.

It is said that Sri. Krishna Iyer did not wake up in the same place where he had gone to sleep. Such was the frequency of his travels around the country and the world.

The Foreword on the jacket of his latest book "Off the Bench" says:

"Mr. Krishna Iyer is, to borrow a Supreme Court idiom, one of those "rarest of rare" individuals who combines activism with restraint, politics with dignity, scholarship with humanism and service with humility". This verily is the portrait of Sri. Krishna Iyer. Sri. Krishna Iyer has upheld uncompromising principles and virtues, with sincerity, determination, sobriety and calmness. Sri. Krishna Iyer speaks and writes from the depths of his personal experience. In his ‘Prefatory Thoughts’ to his book "Off the Bench", Sri. Krishna Iyer himself has explained the common thread for his writings, in a couplet:

"Can I see another's woe

And not be in sorrow too",

It always feels good to wipe a tear. Sri. Krishna Iyer verily is a law-human rights sage. In him, we see a comprehensive commitment to social justice. Sri. Krishna Iyer has spoken and written about the public and the private; the individual and the collective; the orthodox and the liberal; the prince and the plebian; the status quo and the prochange.

Sri Krishna Iyer is a pathfinder of an intractable style of writing. When he writes, words sway into labyrinthine maze, with heavy and pleasing alliteration and swaying rhythms, with elaborate words, words of learned length, hard brilliance and thundering sound, keeping perfect correspondence between meaning and its expression in language. When he orates, orotund words come cascading forth; and the three channels of language - prose, poetry and drama - conflate.

Sri. Krishna Iyer is the World Bank of knowledge, who holds his till of learning in trust for the public. He did not lose wisdom in knowledge. Let me say loud and clear, Sri. V.R, Krishna Iyer is a complete man.

Let us salute the achievements of this colossus. I stop, for it is not possible to conclude the achievements of Sri. Krishna Iyer. I should not make an elusive search for another V.R. Krishna Iyer - like. The search ends with Sri. V.R. Krishna Iyer.

The expression 'thank you', is too little payment for so great a debt I owe to the providers of this greatest and finest opportunity of my life.

Thank you all.

________________________________________________________________________

*Felicitation Address delivered by T.P. Kelu Nambiar, Senior Advocate, at E.M.S. Memorial Town Hall, Ernakulam on Friday, the 16th November, 2001 at the Civic Reception to Justice V.R. Krishna Iyer.