Will A "Quiz" From the Judge Muffle, Cripple or Stifle Advocacy?

 

(By K. Srinivasan Nair, Advocate)

 

This question has naturally arisen on reading the article in full, written by Sri. T.P. Kelu Nambiar, Senior Advocate, Ernakulam, titled "Advocacy muffled, crippled and stifled" in 2003(1) KLT, Journal 34.

 

The concern expressed by the author regarding the tenacious attitude of a Judge in precluding the argument of an advocate by putting a question that might be irrelevant or has absolutely no bearing on the points in issue, is quite befitting and understandable. It is true that there has been discernible change in the mindset of certain judicial officers, reflecting incompatibility of temperament for various reasons, that are strictly extraneous in ensuring a proper appreciation of the points of law or facts and circumstances involved. Some times, an inclination to arrive at a verdict of guilt is often seen on the part of judicial officers, forgetting the salutary governing principles that are to be scrupulously followed till the end. The "quiz" referred to by him would appear embarrassing when the Presiding Officer expresses unwillingness to budge even an inch from the pre-determined stand he took on a subjective analysis of the matter. The advocate concerned will then feel it awkward and irksome for reasons more man one.

 

But it does not appear to me as a circumstance that has the effect of muffling, crippling or stifling advocacy, from the point of view of an experienced lawyer. I feel it is up to the lawyer to advance appealing argument to get over the frozen thinking of the Judge, on some point or other, and take him round to the point canvassed by his skill, tact, erudition and experience. If he succeeds in his attempt to bring home the unfounded and untenable nature of the proposition to the Judge, it immediately clears a break through, offering unbridled prospects to pursue his line of reasoning. An exercise of this sort can also impress the other brethren of the bar and convince the Judge of the unwarranted obsession he was subjected to on an improper application of his mind.

 

When the advocate gets an opportunity to unfold his case, focusing on aspects that negative the scope of a stifling block or a potential circumspection on account of the quiz posed by the Judge, will it not advance the interest of advocacy than crippling it altogether as contended by my learned brother?

 

I fully agree that advocacy should never be allowed to remain a concept. It should have its efficacy tested in practice. An advocate, in the right sense of the term, should build up his case foreseeing all possible attacks, centering on a wide range of challenges and with the will, skill and determination to get over them by his persuasive and suave way of presentation. Quite often, the prevalent "resistant" judicial pronouncements would have to be countered on distinguishing the attendant facts and circumstances. In this background he should not fight shy or keep back from answering all sorts of doubts, queries or "quiz", projected or posed by his adversaries or the Presiding Officer. His inborn talent and ability is judged by the manner in which he could fairly circumvent the surmounting steaming and storming propositions put forward from all other concerned quarters. In the fitness of things, it is normally unwise to anticipate absolute reticence from the officer designated to adjudicate on the matter placed before him. In my view the presence of an officer who has already seized of the contentious issues would do more good than the one who may ultimately grope in the dark as to the main issue of conflicts even after the argument. It is always desirable to have a Judge who has applied his mind to the points of law and facts and circumstances in advance, before hearing your contentions. He should be one who is amenable to reason and commonsense to transform his conviction according to the dictates of law and principles governing implementation of justice, canvassed by both sides. A mute Judge will only augment the sense of uncertainty and suspense than the one who thinks aloud of his doubts, compulsions, limitations, restrictions and the like. A Judge who openly expresses his difficulties, difference in the manner of approach and appreciation of evidence should not be labeled as a "quiz master" muffling, crippling or stifling advocacy. If the point of view expressed by the Judge is, per se, faulty and erroneous, it gives a golden opportunity to the advocate to refute, in open court, his conviction and pursue his line of reasoning to influence the former in his favor. In such a contingency the esteem and respect the advocate holds is only further fortified.

 

The difficulty conceived by the author as the result of a quiz arises only when the Judge is utterly unmindful of the sensible argument raised by the advocate and doggedly persists in his untenable stand. But here also the advocate who meets the proposition of the Judge so effectively from all quarters gets the acclaim of all, including that of the Judge, augmenting and upholding the real spirit of advocacy. The unfolding of such an unwarranted practice by a Judge of putting an irrelevant quiz, can be more a precautionary desire intended to ensure better mode of performance in the administration of justice, than a situation stultifying the spirit of advocacy.

 

Here, I would respectfully prefer to disagree with the observation of M.C. Chagla, extensively quoted by my learned brother to generalize the "tragic" impact of a scrutiny by the Judge, of the materials in advance, before argument. The views expressed by M.C. Chagla will show that he was prepared to accept the exception of certain Judges with a "very strong mind to change an opinion once formed" in order to waive a one-sided opinion already formed on a perusal of the records in the case. In my view it is all the more desirable that the Judge should take the initiative of going through all materials and ascertain the scope and import of the conflicting contentions available in the case. Naturally he may have doubts regarding the acceptability or application of various propositions, prima facie attracted, before arriving at a final decision safeguarding the requirements of law and interests of justice. One cannot forget what Lord Hailsham reminded in his Memoirs "A Sparrow's Flight"; wrote the Bar was always his first love, because the lawyers' profession is reciprocally adversarial profession". So the attempt of the Judge to find out what is more appropriate should be viewed as a just and straightforward gesture to arrive at the inevitable. Any effort to discourage him from going through the records in advance does not appear acceptable.

 

As rightly quoted by my learned brother "advocates at the Bar as well as the Judge upon the Bench, are equally ministers in that temple". It is the consensus of the two that should be reflected in the final outcome. The views of the advocate, therefore, assume utmost significance. All Judges are not alike. There may be experienced hands with considerable expertise and acumen as against those striving to study the case at hand and wanting to clear their doubts before passing a final verdict. Unless one is stubborn, choosy and one-sided, incapable of changing an opinion once formed on erroneous and irrelevant considerations, the practice of putting question is only to be encouraged to the benefit of all and a proper dispensation of justice. We can console that the number of such stiff stuff are very few and far between. The case is similar as regards the advocates as well. One cannot apply the same yardstick to the performance of all. Sometimes it would be imperative for the Judge to put a quiz in the beginning itself to curb the long winding and repetitive oral vibrations of an advocate for the sake of brevity and wit. So it may not be wise to label the quiz as a general taboo damaging the spirit of advocacy. Further such quiz, in my view, is seen rarely employed, particularly in respect of lawyers with lesser fundamental requisites.

 

Ego is often the trouble shooter. It can mar the finest of cooperation. Only a discriminate fusion of fairness, propriety and sanity can enure to the maintenance of the existing goodwill. But I know words will often fail to generate the meaning intended to be conveyed.

 

It is admitted, that a deviant Judge, in the eyes of Sri. Nambiar, reflects the tendency to curtail the argument of the advocate; but such a situation should be converted as a means to expose the ill conceived notions of the Judge than silently succumb to his perverse obsessions.

 

Advocacy is an art. It has to be sharpened and glorified.

 

Long live advocacy!!!

 

LEGITIMATE EXPECTATION: A CRITICAL ANALYSIS

 

(By Prasanth V.G., IV Year LL.B., W.B. National University of Judicial Sciences,

Kolkata)

 

The term natural justice has often been used interchangeably with natural law or jus naturale that means certain rules of conduct supposed to be so just that they are binding upon all mankind1 and fundamentally implicit in every decision making, whether judicial, quasi-judicial or Administrative2. They are fundamental so as to be implicit in the concept of ordered liberty3

 

The doctrine of 'Legitimate Expectation' takes its seat in the field of Administrative Law more or less as an extension of the established principles of natural justice and non-arbitrariness. The similarity between the principles of natural justice and the doctrine of Legitimate Expectations is that both demand fair play in action.

 

The evolution of 'Legitimate Expectation'

 

The doctrine has its genesis itself in the field of Administrative Law4. Legitimate Expectation is the latest recruit to a long list of concepts like natural justice, reasonableness, fiduciary duty of local authorities etc. fashioned by the Courts for the review of Administrative action5. Its evolution is due to the reason similar to that of the evolution of Promissory Estoppel. The Supreme Court says in Amrit Banaspati Co. Ltd. v. State of Punjab6 that the basic purpose of Promissory Estoppel is to promote justice founded on fairness and relieve a promisee of any injustice perpetrated due to promisor's going back on a promise. This can be construed even as the reason for the evolution of this concept in the field of law.

 

According to the Supreme Court unfairness in the form of unreasonableness is akin to violation of Natural Justice and it was in this context that the doctrine of legitimate expectation was evolved7. This was to ensure regularity, predictability and certainty in the Government's dealing with the public8.

 

However it is not possible to comprehend at a glance the innumerable situations where the authority in power would deal with the public in official capacities thereby evoking legitimate expectation. Therefore the Supreme Court has rightly stated: "Legitimate Expectations owe their existence to different kind of circumstances and it is not possible to give an exhaustive listin the context of vast and fast expansion of the governmental activities. By and large they arise in cases of promotions which are in the normal course expected though not guaranteed by way of statutory right, in cases of contracts, distribution of largess by the Government and in somewhat similar situations9". This being the case it can also be said that the principle is not yet fully evolved10. With the various new kinds of interactions of the concerned authorities with the public the shaping of the concept of Legitimate Expectation is also bound to take new styles and versions.

 

How to define 'Legitimate Expectation' ?

 

Legitimate has been clearly defined by the Supreme Court of India in quite a few cases. First of all expectation has to be reasonable11. But it is not a mere anticipation and is distinguished even from an otherwise genuine expectation12. Expectation of a legally justifiable and protactable nature alone comes for discussion here. It is therefore not a mere desire or hope13. In the words of the Supreme Court: "However earnest and sincere we wish, a desire or a hope may be and however confidently one may look to them to be fulfilled they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope leading to a moral obligation cannot amount to a legitimate expectation14".

 

- It is noticeable that in one of the cases while negating the claim of legitimate expectation the Supreme Court used the term "False Hope15" suggesting that a mere hope or desire might even turn out to be a 'false hope' in front of law, if it cannot qualify the ingredients of Legitimate Expectation.

 

Legitimate Expectation clearly distinguishes itself from a mere expectation. Apart from 'reasonability' that is stated earlier, Legitimate Expectation shall be founded on the sanction of Law or custom or an established procedure followed in regular practice16. If the authority in power later alters this law, custom or procedure thereby affecting the benefits legitimately expected by a person or a body who relied on the earlier representation17 then the court would intervene through a judicial review18 of the exercise of such administrative power by the authority. This expectation cherished by the claimant would alone be the criterion to decide in his favour.

 

In 1993 the Supreme Court observed that the doctrine applies in Public Law and not in Private Law19. But the Supreme Court exhibited a clear variation of this attitude when it attempted to define Legitimate Expectation in 199820. It was in the latter case defined to operate even in the field of Private Law. Resultantly the earlier view21 that legitimate expectation cannot amount to claim or demand on the ground of right also has undergone reversal22.

 

Therefore according to the highest court of Law in India the present ambit of Legitimate Expectation is as follows:

 

"The doctrine of Legitimate Expectation can be invoked if the decision which is challenged in the court has some person aggrieved either-

 

(a) by altering rights or obligations of that person which are enforceable by or against him in private law, or

 

(b) by depriving him of some benefit or advantage which either

 

(1) he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given opportunity to communicate, or

 

(2) he has received assurance from the decision maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that it should not be withdrawn23".

 

'Legitimate Expectation' and 'Promissory Estoppel'.

 

There are seemingly lots of similarities between the two. Also in a given case the application of both the principles would be possible giving ultimately identical results. But the differences are also mentionable. They are:

 

1. Promissory Estoppel is primarily estopping a person or an authority from a given promise24. This is therefore negative in nature whereas Legitimate Expectation is essentially positive in nature.

 

2. In the case of Promissory Estoppel there has to be a clear and unequivocal promise or representation made by one party to the other by word or conduct25. In the case of Legitimate Expectation even though reliance on a representation by word or conduct is a requirement26 it is most often not based on unequivocal promise.

 

3. The representation or promise in Promissory Estoppel is with the knowledge or intention to create a legal relationship27 whereas there is nothing like that in Legitimate Expectation.

 

4. Another main difference is the resulting suffering being a non-necessity in invoking Promissory Estoppel. It is surprising to note that the Apex Court of India has spoken in different voices in this matter. In 1987 the Supreme Court stated that it is not necessary that there should be a resultant detriment so as to invoke Promissory Estoppel28. However in 1998 the Court said that there has to be resultant detriment to the claimant in the case of Legitimate Expectation "in the same way as claims based on Promissory Estoppel29". Therefore it can be said that in the matter of Promissory Estoppel it is not settled that whether there has to be a detriment whereas in the matter of Legitimate Expectation it is clear that the claimant should have suffered a detriment due to the authority acting contrary to the expectation legitimately evoked in the mind of the claimant.

 

Is 'Legitimate Expectation' a distinct right in itself?

 

The Supreme Court has stated that the Natural justice is not an end in itself; rather it is a means to an end30. The case was the same with Legitimate Expectation also. Earlier it did not give a right in the absolute sense. Rather it assured the claimant of certain fairness in the administrative action. To explain this further, the Expectation that is Legitimate could not be guaranteed or fulfilled; rather it could only be protected31. That is to say that this was not equal to a conventional "right" in the legal sense of the term. It was less than a right32. The word "protection" only meant that when the decision-making authority violated a person's legitimate expectation, the judiciary could intervene to ensure that the decision maker shows sufficient justifications on his part.

 

Therefore the protection of Legitimate Expectation amounted only to ensuring the circumstances in which that expectation may be denied or restricted. This is the reason why the Legitimate Expectation could only be protected and not be guaranteed or fulfilled. The protection under the doctrine of 'Legitimate Expectation' therefore amounted only to the following three-layer procedural protection:

 

1. The procedural part of it related first to representation that a hearing or other appropriate procedure will be afforded before decision is made33.

 

2. Secondly the procedural part of Legitimate Expectation was also to be scrutinized whether any malafide or any abuse of power has taken seat34.

 

3. Thirdly procedural fairness through non-arbitrariness had to be ensured35. The Supreme Court has stated the exact link between Legitimate Expectation and procedural non-arbitrariness in the following words: "Failure to consider and give due weight to it (Legitimate Expectation) may render the decision arbitrary, and this is how the requirement of due consideration of a Legitimate Expectation forms the part of the principle of non arbitrariness, a necessary concomitant of the rule of law36. Accordingly it was ruled that the application of Legitimate Expectation in the selection of appointees to the Supreme Court would make the appointments non arbitrary37.

 

However it is now accepted that the doctrine isn't merely a procedural right alone and that it has an independent existence as a distinct substantive right. Therefore the earlier view that 'Legitimate Expectation' is not a right in itself no more holds good.

 

Though the doctrine of Legitimate Expectation is essentially procedural in character and assures fair play in administrative action, it may, in a given situation be enforced as a substantive right38. To quote the Supreme Court: "The substantive part of the principle is that if the representation is made that a benefit of a substantive nature will be granted or if the person is already in receipt of the benefit that it will be continued and not be substantially varied, then the same would be enforced39".

 

This is essentially to review the very content and substance of the administrative action and no? merely the procedural fairness in its implementation. "The legitimate substantive expectation... permits' the court to find out if the change in policy which is the cause fordefeating the Legitimate Expectation is irrational or perverse or one which no reasonable person could have made40".

 

Therefore the doctrine of 'Legitimate Expectation' has undergone a total change from that of a mere procedural safeguard to that of a distinctly identifiable substantive right in itself.

 

Conclusion

 

In the words of the Supreme Court: "The protection of such Legitimate Expectation does not require the fulfillment of the expectation where an overriding public interest requires otherwise. In other words where a person's Legitimate Expectation is not fulfilled by taking a particular decision then decision maker should justify the denial of such expectation by showing some overriding public interest. Therefore even if substantive protection is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted41". It is also be remembered that the judicial presumption is always in favour of the constitutionality of administrative actions. Additionally there have been several occasions where the judiciary has shown restraint in interfering with 'policy matters'. Therefore it may be stated that the judicial support to 'Legitimate Expectation' is similar to the judicial reasoning that the rules of natural justice can operate only in the areas not covered by any law validly made as they can only supplement the law and not supplant it42.

 

However even the public policy "must confirm, grow and tailored to serve the public interest and respond to the demands of an evolving society43". Therefore if a substantial challenge can be offered against the policy matter (into which judiciary would not normally intervene) by way of raising a strong doubt against the existence of any overriding public interest, then the process of judicial review can ensure the executive compliance with the doctrine of Legitimate Expectation.

___________________________________________________________________

Foot Note:

1. Union of India v. Tulasiram Patel AIR 1985 SC 1416.

 

2. Swadeshi Cotton Mills v. Union of India AIR 1981 SC 818.

 

3. Ibid.

 

4. National Buildings Construction Corporation v. S. Raghunathan (1998)7 SCC 66; 1998 SCC (L&S) 1770: AIR 1998 SC 2771.

 

5. Union of India v. Hindustan Development Corporation (1993) 3 SCC 499.

 

6. AIR 1992 SC 1075.

 

7. Supra 4.

 

8. Punjab Communications Ltd. v. Union of India, (AIR 1999 SC 1801).

 

9. Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499.

 

10. Punjab Communications Ltd. Union of India, AIR (l999) SC 1801.

 

11. Madras City Wine Merchants Association v. State of Tamil Nadu, (1994) 5 SCC 509.

 

12. Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499.

 

13. Ibid.

 

14. Ibid.

 

15. National Buildings Corporation v. Raghunathan, (1998) 7 SCC 66:1998 SCC (L & S) 1770: AIR 1998 SC 2771.

 

16. Supra 14.

 

17. Supra 15.

 

18. Supra 16.

 

19. Ibid.

 

20. Supra 11.

 

21. Supra 18.

 

22. Supra 20.

 

23. Ibid.

 

24. D.C.M. Ltd. v. Union of India, (1996)5 SCC 468; Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 369; AIR 1995 SC; Kasinka Trading v. Union of India, (1995) 1 SCC 274: AIR 1995 SC 874; Union of India, (1987) 1 SCC 551; Mohd. Fida Karim v. State of Bihar, AIR 1992 SC 1191; Shrijee Sales Corporation v. Union of India, (1997) 3 SCC 398; Amrit Banaspati &Co. Ltd. v. State of Punjab, AIR 1992 SC 1075; I.T.C. Bhadrachalam Paperboards v. MundalRevenue Officer, (1996) 6 SCC 634.

 

25. Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 360; AIR 1996 SC 806.

 

26. Supra 23.

 

27. Supra 25.

 

28. The Supreme Court says in D.C.M. v. Union of India AIR 1987 SC 2414: "The altering of the position by the party is the only indispensable requirement of the doctrine. It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel."

 

29. Supra 26.

 

30. Swadeshi Cotton Mills v. Union of India AIR 1981 SC 818.

 

31. Ibid.

 

32. Ibid.

 

33. Supra 35.

 

34. P.T.R. Export (Madras) (P) Ltd. v. Union of India, (1996) 5 SCC 268.

 

35. Ghazidahad Development Authority v, Delhi Auto & General Finance (P) Ltd., (1994) 4 SCC 42:AIR1994 SC 2263.

 

36. Food Corporation of India v. Kamadhenu Cattle Feed Industries, (1963) 1 SCC 71; AIR 1993 SC 1601.

 

37. Supreme Court Advocates on Record Association v. Union of India, (1973) 4 SCC 441: AIR 1994SC268.

 

38. Supra 36. See also MP. Oil Extraction v. State of M.P., (1997) 7 SCC 592,

 

39. Supra 37,

 

40. Ibid.

 

41. Supra5. See also Navjyothi Co-op. Group Housing Society v. Union ofIndia, (1992)3 SCC 477; Madras City Wine Merchants Association v. State of Tamil Nadu, (1994) 5 SCC 509; Jamant-E-Islamiv. Union of India, (1995) 1 SCC 428.

 

42. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818.

 

43. Ibid.

 

GRATUITY AXED

 

(By M. Rajasekharan Nayar, Advocate, Ernakulam)

 

A 3 Judge Bench of Supreme Court as early as 1960 ruled, the functions of the State can be classified as 'sovereign or inalienable functions of the State' and Commercial. Those sovereign functions are confined to legislative power, administration of law and judicial power, it is also held that "If a service rendered by an industrial or private person could be an industry, it would equally be an industry in the hands of the corporation".

 

In such circumstances the decision of Supreme Court in Ahemdabad Primary School Teachers Association case (2004 (1) KLT 470 (SC)) is not good law, in view of the said decision being rendered by the Division Bench of two judges and is contrary to the decision rendered by 3 Judges headed by Chief Justice Gajendragadkar, which decision was approved by a bench of 7 judges in Bangalore Water Supply and Sewerage Board case. Nagpur case was on similar facts, it is with regard to a school run by the Nagpur Municipal Corporation, in Nagpur Municipal Corporation Is case, the Supreme Court held that, certain activities of the Corporation will come within the definition of industry but there may be other activities, ruling it out of the definition of industry and the working formulae adopted, is whether it is primarily and predominantly concerned with industrial activity or incidentally connected therewith.

 

Taking into account the various features, the court separately considered the various departments run by the Corporation and it was held that the Education department look after primary education, that is compulsory primary education within the limits of the Corporation. "This service of the Corporation, can equally be done by private persons". Hence the employees of this Department come under the "definitions of employees under the Act, is certainly entitled to benefits of the Act". The Act referred therein, is the Industrial Disputes Act.

 

The word employee is defined in various labour legislations. The Supreme Court in the Ahemdabad Primary School Teachers Association case referred to the definition of employees in minimum wages Act, Provident Fund Act, Bonus Act along with Gratuity Act. and said that the definition in the Gratuity Act is narrower, does not take in teachers for payment of gratuity. The court lightly brushed aside, the amendments made to the definition of employee, in the Gratuity Act, by Amendment Acts 25 of 1984 and 34 of 1994.

 

The Act, as originally passed, specifically excluded persons employed in the managerial and administrative capacity or a person who holds post under the State Government and Central Government and also those covered by Air Force Act, Army Act and Navy Act. The explanation which was originally in the Act, was deleted. The explanation originally incorporated, covered only persons drawing a salary upto Rs.1000/- per month and once that limit is exceeded, the maximum wage that is to be calculated for payment of gratuity, thereafter is only Rs.1000-. Thus it could be seen that even if a person, who comes within the main definition of employee, will be excluded by virtue of die explanation, that he is drawing a salary of more than Rs.1000/-, per month. Similarly in the Employees State Insurance Act, also contain a provision which excludes the employee drawing more than a particular limit prescribed by Central Government, by notification in the Gazette.

 

Thus the decision in, Ahmedabad Primary School Teachers Association case not only does not lay down good law but acted on the basis of irrelevant and extraneous consideration. The amendment to definition of employee in the Gratuity Act, by Act 25 of 1984 and Act 34 of 1994 really enlarges the definition, Originally those holding managerial and administrative capacity were excluded, so also those holding civil post under the State Government and Central Government. But by the amendments they will be excluded, only if they are in receipt of gratuity under any Act or by Rules. The Judges who decided this case has stated, that the teachers under the Corporation, are governed by statutory regulation known as gratuity regulation of the Municipal Corporation of the city of Ahemdabad, framed by the Corporation under S.465(i)(h) of the Bombay Municipal Corporation Act, 1949. In such circumstances, the other points need not have been gone into. The decision mentioned therein is not applicable to the facts.

 

Thus it could be seen that the decision in the Ahemdabad Primary School Teachers Association case is wrongly decided for the following reasons:

 

a) Even as per the definition of employees, as it stands now, the teachers are excluded in view of the fact that they come within the later part of definition ie., receipt of gratuity statutorily fixed by the Corporation.

 

b) The decision is contrary to the decision rendered by a larger bench in AIR 1960 SC 675 which was approved by a Constitution Bench of 7 Judges in Bangalore Water Supply and Sewerage Board case.

 

With the emergence of self financing colleges, which became a reality after Supreme Court judgment in Unnikrishnan's case, education from day school to professional and super speciality courses had become an industry. This fact has also been not taken note of by Judges in Ahemdabad Primary School Teachers Association case.

 

A word about Justice Gajendragadkar. He was one of very few Judges of Supreme Court who understood the heart and soul of Labour Law and to a large extent helped in the development of Labour Law, in the right direction. The Judges who followed him, in an attempt to steal a march over him, either prevaricated or strangulated the law, which resulted in utter confusion.

 

LAW OF MAINTENANCE - HINDU MINOR

 

(By Raghu Pradeep Nair, Advocate, High Court of Kerala)

 

Introduction

 

It is most unfortunate and disturbing to note that the Family Courts constituted under the Family Courts Act, 1984, are delaying payment of maintenance to minor children. Children are the future productive human resource of our country and their proper growth in a healthy family atmosphere is of critical importance to our nation's progress in every field. Today's child is tomorrow's valuable human asset in the form of a leader, businessman, doctor, engineer, scientist, jurist, etc. Therefore, a child's social, psychological, nutritional, educational, and economic needs and healthy growth is a primary responsibility of the State. A good childhood for a child is a great investment, which any nation makes for itself and the world at large and has no parallels.

 

Constitution

 

The Constitution of India. Part IV, lays down the Directive Principles of State Policy. Thereunder, Art. 39 provides that "The State shall, in particular, direct its policy towards securing - (f) that children are given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment". It is a social and constitutional obligation of every parent to give a good and quarrel free family atmosphere to their children for their wholesome growth. If they fail in doing so a duty is naturally cast upon the State and the Family Courts to step in and protect the interest of the minor citizens by appropriate legal measures and make the parents (natural guardian) accountable towards the welfare of the children. The actions of the parents should be measured on the scale of the impact it has on the childhood of the child and its future growth. The right to live of minor children under Art.21 of the Constitution of India includes a right to a reasonable maintenance for their physical and mental growth from their parents. A right to a reasonable maintenance is a child's fundamental right under the Constitution. When a natural guardian withdraws himself from maintaining his minor child, a great blow is inflicted to the child's dignity and its future is rendered uncertain. After bringing forth an offspring into the world a guardian is naturally expected by the society to maintain it with whatever means he has. If he fails to do so then the Welfare State should have the will and the machinery to compel him to do so promptly. One of the main reasons noticed for an increase in family disputes between married couples who have children is the absence of any law in the country to make the disputing parents, particularly the husband (who is the natural guardian of the Hindu minor under S. 6 of The Hindu Minority and Guardianship Act. 1956). strictly accountable for the maintenance of minor children from day one when a family dispute is set in motion in the Family Court. Hence, to realize the goal of Art. 39(f) of the Constitution the Legislature needs to provide more teeth to the existing Matrimonial Laws.

 

Amendments

 

Recently, under The Marriage Laws (Amendment) Act, 2001 (Act 49 of 2001), S. 26 of the Hindu Marriage Act, 1955, was amended. The amendment to S. 26 provides that the application with respect to maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent. On the criminal side The Code of Criminal Procedure (Amendment) Act, 2001 (No.50 of 2001) amended S.125 to provide that the court can order interim maintenance (monthly allowance) within 60 days. Although these are good legislative initiatives far over due, yet, a lot more has to be done to protect the interest of minor children who find themselves involuntarily trapped between the clash of their parents.

 

Guardian

 

According to S.4 of The Hindu Minority and Guardianship Act, 1956, sub-clause (b) "guardian" means a person having the care of the person of a minor or his property or of both his person and property, and includes - (i) a natural guardian, (ii)...etc. The words "person of a ' minor" has not been defined or explained in Section 4 of the Act. However, the care of the person of a minor embraces and includes not only physical care but also monetary care necessary for a minor's physical, mental, material and educational growth. Under the Hindu Law this responsibility to maintain the minor children is cast upon the father who is the natural guardian of the person and property of a minor Hindu child under S.6 of the Hindu Minority and Guardianship Act, 1956.

 

Children Laws

 

Although there are Children Laws in the country, they have nothing to offer to Children who may be found in a situation of need, social mal-adjustment, psychological trauma and neglect during Family Court disputes between their parents. The Family Courts have sidelined the Children Welfare Boards under the Children Laws, but at the same time are not able to protect the interest of minor children of disputing parents and provide timely relief in their claim for maintenance. A child who is not maintained by the natural guardian is a "neglected child" under the Children Laws and the Children Law Authorities ought to have some role to play in Matrimonial Cases in the Family Courts to see to it that Children are provided with immediate maintenance from the natural guardian through the intervention of the Court.

 

Family Court Procedures

 

The Family Courts seem to be preoccupied hearing the contentions of the disputing parents and counseling them. This is primarily because our present day Matrimonial Laws are parent oriented. When a Petition is made for maintenance to wife and children under the Hindu Adoption and Maintenance Act of 1956, the Family Courts are usually seen measuring Ss. 18 and 20 with the same yardstick, mixing up the two Sections and arriving at a messy delay in giving maintenance to the minor children. The Family Courts seem to miss out the point that a Hindu minor child under S. 20 of The Hindu Adoption and Maintenance Act, 1956, never forfeits his claim to maintenance under any circumstances, unlike a Hindu wife who could forfeit her claim to maintenance if the conditions laid down under S. 18(2) of the said Act are not fulfilled. Therefore, any delay in providing maintenance to the minor children under S.20 by the Family Court is unjustified because in the case of minor children the Court has only to ascertain the financial status of the natural guardian and pass an appropriate Order of maintenance immediately. The Family Courts need not needlessly wait to ascertain the eligibility for maintenance of the wife under S.18(2) of The Hindu Adoption and Maintenance Act, 1956 or experiment with the chance for settlement between the parents under S.9 of the Family Courts Act, 1984, before passing an Order for maintenance in favour of minor children. But, unfortunately the Family Courts are not doing this and concentrating on the dispute between the parents, thereby sidelining the maintenance claim of the child. In this context I would like to invite attention to Family Courts Act, 1984, Chapter IV, Procedure, Section 9, which provides for the duty of Family Court to make efforts for settlement of suit or proceedings. S.9 has contributed much towards the delay in payment of maintenance to the minor children. Under S. 9 it is provided that endeavor shall be made by the Family Court in the first instance to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceedings. Moreover, if there is any chance for settlement between the parties the proceedings may be adjourned for such period as the Family Court may think fit to enable attempts to be made to effect such settlement. In the light of Section 9 adjournments have become a rule in Family Courts and minor children are left back home without any maintenance Order being pronounced by the Court for years. Maintenance to minor children should always precede any effort towards settlement by the Family Court under S. 9 because a Family dispute is not a product of the child's making or fault. The delay caused by the Family Courts in providing timely maintenance to minor children for meeting their genuine day-to-day needs is a punishment to them on top of the psychological trauma that they are experiencing due to the irresponsible attitude of their disputing parents.

 

The procedure under S. 9 holds good for the issueless couples and not for couples who have minor children. As these two situations are totally different, their treatment under the procedural law should also be naturally different for all practical purposes. Therefore, in the case of parents in dispute who have minor children, the Family Court should in the first instance bother and concern itself about the welfare and management of the needs of the children and only after having made provisions for their maintenance, education, etc., from the natural guardian should the Family Court proceed further with its efforts to settle the matter under Section 9 of the Family Courts Act, 1984. The present practice being adopted by the Family courts is to club together and drag along the maintenance claims for minor children with that of the parent petitioner (in majority of cases the Mother) for years in the light of its discretionary powers conferred under Section 9 of the Family Courts Act, 1984, without making any Orders regarding maintenance to the minor child. This practice is totally against the welfare of the children and must be stopped immediately.

 

Further, since there is no mandatory provision in the Family Courts Act & Rules to monitor the welfare of the children during lis pendence, hardly any effort is made by the Family Courts to ascertain periodically or even once in a year the living conditions of the children back home, their maintenance, health, psychological status, education, etc., when actually this should be a rule in all cases where minor children are involved in Family disputes. In a case, personally known to this Author, where no maintenance has been ordered for nearly two years now to two minor children, a Family Court has not even once bothered to enquire as to how these children are living back home without any maintenance all these months. The very same Family Court has kept attached the property and frozen the bank accounts of the defendant father (natural guardian) for the said period, but still has failed to give any maintenance to the children. The Family Court could have easily obtained a bank statement and released the maintenance amount to the children from the bank deposits frozen by it. Such cases are against the very spirit of Child Welfare and the Constitutional objectives.

 

Remedial Measures:

 

The Family Courts Act, 1984, needs to be amended to take care of the following:

 

a) The claims for maintenance of the parent petitioner and the minor child should not be clubbed together and must be split-up and dealt with separately by the Family Courts with the assistance of the State Child Welfare Board. This will ensure that a minor child starts getting its legally entitled maintenance quickly from the natural guardian irrespective of the procedural status of the case between the parents.

 

b) The Family Courts should be empowered to entrust the maintenance case of the child to the State Child Welfare Board. The maintenance amount to the child should be channelised through the Board. For this purpose every Family Court should have a pleader from the State Child Welfare Board to represent the child in its maintenance claim.

 

c) The Counselling procedure laid down under the Family Courts (Kerala) Rules, 1989 needs to be made more children friendly and family neutral instead of being parent focused. There should be periodical visits by the Counsellor to the children at their home and counseling sessions should be conducted for children by a Counsellor who has specialized in child psychology and child welfare to ascertain and understand their social, economic and mental needs and recommend reliefs to the Family Courts on their behalf. These facilities should be extended to the children right from the first instance of the suit or proceedings. Where the children are school going the Counsellor should visit the school and ascertain from the teachers about the academic performance of the child and its fee and other requirements and report to the Court for any appropriate Orders. These provisions should be made compulsory.

 

d) The assistance of the State Child Welfare Board under the Children Laws should be made available to the Family Courts wherever required because the authorities under the Children Laws are better equipped to understand the needs of children.

 

e) Maintenance from the natural guardian to minor children should be ordered within 60 days from the date of the first hearing of the suit or proceedings in the Family court after making inquiries into the circumstances of the natural guardian with the assistance of the State Child Welfare Board. Section 9 of the Family Courts Act, 1984, should be amended in such a way that it does not stand as a hindrance to maintenance to minor children.

 

Conclusion

 

The State has a responsibility for the welfare of these neglected minor children and the Family Courts should exercise their parent patriae jurisdiction judiciously, sharing in the sovereign power of the State.

 

RE - MARRIAGE IN SHARI'AT IS NOT CRUEL

 

(By K.A. Abdul Jawad, Advocate, Kochi)

 

This write up is an outcome of a constraint of thoughts when I read the article "Re-marriage in Sharia is cruel' written by S.A. Karim, Advocate, Thiruvananthapuram appeared in the journal section of KLT of 6th October (2003 (3) KLT Journal 18). It persuade me to say with all due respect that the author has committed a mistake in understanding the provision in its true spirit.

 

The concept of marriage in Islam had been misunderstood for a long time. It was conceived as a mere civil contract, which in fact is a wrong. If it is, it must have been performed or solemnized under the Indian Contract Act. But the holy verses of the scripture with the strict adherence of the tradition of the prophet conveys that, it is a sacred divine covenant with the prime object of preservation of morality in Society. Fyzee had given sufficient evidence to show that, it is a sacrament pointing out the contents of compulsory Sermon, which follows the Nikah. Sulaiman, C.J. in Anis Begum v Muhammad Istafa (1933 (55) All. 743) has also expressed a similar opinion. Preservation of morality being the prime object, it is commanded, even though disliked by the Lord Almighty, that Nobody should be compelled to be tied up in a distressed wedlock lest parties may break the law and the morality. Hence permitted divorce subject to strict conditions as a last resort.

 

Marriage and Divorce not to be a puppet or a plaything in the hands of either party. It must not exercise under thoughtless or sudden provocation. That is the reason, a procedure is prescribed for obtaining divorce. As per Shariat, the pronouncement of divorce must be during the period of tuhy (period of purity between two menstrual courses) to avoid temperament or other psychological problems on the part of women. Parties must wait three menstrual courses (three months) along with the pronouncement of three successive talaq without having sexual contacts in order to let the divorce take effect. An intermediate sexual intercourse or an express or implied revocation of divorce before the completion of the period make the divorce ineffective and resume the marriage relation in its original form. However once the prescribed period is completed with three valid talaq, the divorce become unrevocable. Thus the parties get sufficient time to have a re-think and an opportunity to tide over sudden provocation and temperament before the pronouncement each talaq.

 

Intentional ending of marriage is not that easy thing to have re-options any number of time in accordance with the whims and fancies of the parties. That is the rationale behind imposing such a stringent condition of marriage with another person along with the resultant consummation and a regular divorce. The purpose is not to prevent re-marriage between couples, but to prevent unnecessary and thoughtless severance of holy union by imposing a punishment on the husband. When we refer to history, we must know that this was introduced during prophet's time not to victimize women, but as a deliverance of them. The Primitive Arabs used divorce as a weapon against women to deny their conjugal fights and revoke it as and when they wish to prevent their freedom of another marriage. It is in this context one must analyze this provision. Thus this provision makes the parties think twice before they part with.

 

Law is generally for the society. We cannot change it to suit one or two individual instances. Take the same example of the case in my friend's hand, which is referred to in his article. If a socially and educationally well placed couple, one of them is a lawyer too, who is presumed to be aware of this provision, severed the holy bond for silly reasons ignoring the child. Is the law to be changed for them? Can anybody assure that they will not repeat this unfortunate event in future also? Think whether it is the flow of the law or of the parties. What to be amended the law or the conduct?