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?

DEATH PENALTY

(By A. Krishnadas, Advocate, Calicut)

The debate on the mode of execution of death sentences was initiated by a survey conducted by the Law Commission of India. The survey, whose findings were presented at a seminar in New Delhi, says majority people interviewed want a lethal injection to replace death by hanging.

According to Law commission1 death penalty has been a mode of punishment since time immemorial. The arguments for and against have not changed much over the years. Crime as well as the mode of punishment correlates to the culture and form of civilization from which they emerge. With the march of civilization, the modes of death punishment have witnessed significant humanized changes. However, in India not much has been debated on the issue of mode of execution of death sentence.

S.354(5) of the Cr. P.C. says, "When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead." Hanging involves intense physical pain and suffering, it is really so brutal.

In Deena v. Union of India2 the apex court held that the execution of death should satisfy the following criteria: It should be as quick and simple as possible, the act of execution should produce immediate unconsciousness passing quickly into death, it should be decent, it should not involve mutilation.

Stressing the need for changing our practice, many felt that with technological advances in the fields of science, technology and medicine, a method that is certain, humane, quick and decent should be adopted.

The Commission in its Report observed3 "We find that there is a considerable body of opinion which would like hanging to be replaced by something more humane and more painless..."

But the 'Reformist’4 stress that a debate on how to execute a death sentence is out of place when more and more countries in the world are doing away with capital punishment. Those sentenced to death in India are more often than not poor people with little a'ccess to a proper defense. In India, it is the poor who are mostly sentenced to death.

The use of lethal injection has its roots in Nazi Germany, which used the process to put thousands of people to death. The minority of countries around the globe that have retained the death penalty increasingly are following the U.S. example and switching to lethal injection. These countries include Guatemala, the Philippines, and the United Arab Emirates. China, which leads the world in executions, recently announced its intention to follow the U.S. model and switch to lethal injection.5

According to Law Commission, Death by lethal injection involves the continuous intravenous injection of a lethal quantity of three different drugs. The prisoner is secured on a gurney with lined ankle and wrist restraints. A cardiac monitor and a stethoscope are attached, and two saline intravenous lines are started, one in each arm. The inmate is then covered with a sheet. The saline intravenous lines are turned off, and Sodium Thiopental is injected, causing the inmate to fall into a deep sleep. The second chemical agent, Pancuronium Bromide, a muscle relaxer, follows. This causes the inmate to stop breathing due to paralyses of the diaphragm and lungs. Finally, Potassium Chloride is injected, stopping the heart.

As less painful, quick and that there should be least mutilation of the body, the death by lethal injection fulfils all the three requirements in Deena's Case. But our prime consideration wants to be the social and moral aspects of the death penalty rather than the mode of punishment.

__________________________________________________________________________________

Foot Note:

1. In it's Consultation Paper on Mode of Execution of Death Sentence and Incidental Matters.

2. (1983)4SCC645.

3. Topic 58(c) paragraph 1149.

4. According to them purpose of punishment is reformation.

5. From Report of National Coalition to Abolish the Death Penalty, Washington.

Is The Decision in Vidhyadharan V. State of Kerala Reported in

2004 (1) KLT 105 (Sc) Correct ?

(By A.K. Radhakrishnan, Under Secretary, Advocate General's Office)

It is now settled law that Sessions Court constituted as a special Court to try the offences under "Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot take cognizance of the offences under the Act without the case being committed to that Court by Magistrate Court [See 2000 (1) KLT 609 (SC) = 2000 (2) SC 504 and 2004 (1) KLT 105 (SC) = JT 2003 (9) SC 89]. So, the special court gets jurisdiction to try the offences under the Act only after the case has been committed to it. It cannot straight away take cognizance of the offences under the Act. It is under legal obligation to see whether the case has been committed by Magistrate and only on finding that the same has been done, the court should proceed to take cognizance.

Now, the question is whether the violation of the provisions of S.193 of the Code of Criminal Procedure, 1973 can result in the Appellate Court reversing the conviction and sentence imposed on an accused by the court below. It appears that two Benches of equal strength of the Supreme Court have taken contradictory stand on this. A Division Bench of the Apex Court [K.T. Thomas (J) & K.G. Balakrishnan (J)] in the decision reported in 2001 (7) SCC 679 - State of Madhya Pradesh v. Bhooraji & Ors. considered the above question and held that merely on account of procedural lapse, the trial and the subsequent conviction and sentence imposed on an accused cannot be erased unless prejudice is caused to the accused or there was failure of justice on account of the irregularity. Another Bench consisting of Doraiswamy Raju (J) and Arijit Pasayat (J) in a very recent decision reported in 2004(1) KLT 105 (SC) = JT 2003 (9) SC 89 - Vidhyadharan v. State of Kerala - has taken the opposite stand as appears from the conclusion of its judgment dated 14.11.2003. It straight away set aside the conviction and sentence imposed on the appellant by the Sessions Court under S.3(1) (xi) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 on the ground that the Sessions Court could not have convicted the appellant as it had taken cognizance and tried the case without committal to it by the Magistrate in accordance with the provisions of S. 193 of the Code of Criminal Procedure.

Ss.193 and 465 of the Code of Criminal Procedure are the relevant provisions, in this context. S.193 reads thus "cognizance of offences by Courts of Session - Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code".

On a reading of the section it can be seen that Sessions Court is barred from taking cognizance of an offence as a court of original jurisdiction unless the case is committed to it by the empowered Magistrate. It is under legal obligation to see whether the case has been committed by the Magistrate and only on finding that the same has been done, the court can proceed to take cognizance of the case. The two exception are 1) when otherwise expressly provided by this Code and 2) when any other law expressly provides a different procedure. It goes without saying that the code hasn't expressly provided any other mode for taking cognizance of the offences under the SC and ST (Prevention of Atrocities) Act. It is also not in dispute that the above Act doesn't contain any special procedure for taking cognizance of the offences under it. That means Sessions Court will have to follow the procedure in S. 193 of the Code before taking cognizance of the offences under the SC and ST (Prevention of Atrocities) Act. It has to be stated that taking cognizance of an offence without committal by Magistrate is only a procedural irregularity. In fact it is a technical error. It cannot be otherwise as normally no prejudice is caused to the accused on account of this failure or omission. In this context it is relevant to note that the committal court performs only preliminary formalities like serving copies of documents relating to the case etc. etc. What would be the effect of such procedural irregularity (violation of the provisions of S. 193 of the code) is the point to be considered.

Now let us have a look at the other relevant Section i.e., S.465 of the Code of Criminal Procedure. S.465 reads thus "Finding or sentence when reversible by reason of error, omission or irregularity - (1) subject to the provisions herein before contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a Court of Appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether objection could and should have been raised at an earlier stage in the proceedings".

On analysing the above provision, it is clear that superior Courts shall not quash the proceedings of the Courts below merely on the ground that lower Courts committed error, omission or irregularities while conducting trial. The above provision is for securing justice by preventing the invalidation of a trial on the ground of breach of technicalities causing no prejudice to the accused. The appellate Court is not empowered to reverse or alter the sentence or order passed by a court of competent jurisdiction for procedural irregularities or illegalities unless it has actually occasioned a failure of justice. The Superior Court should not interfere unless a grave illegality is committed by lower Court. In fact only in glaring cases of injustice resulting from violation of some fundamental principle of law by trial Court that the appellate Court is empowered to set aside the order of lower Court. The word "infact" in S .465 of the Code emphasises the duty of Court to go into the merits before interfering on the ground of error of court below. It is true that the provision of S.465 of the Code is not for curing material defects and absolute illegalities. It is also not for curing substantive errors of law. But, in the instant case it is only a technical error. It cannot in any way be stated that trial by sessions Court without committal from Magistrate is one that violates fundamental principles of law. It has also to be remembered that the provision of S.465 of the Code is mandatory.

It cannot be said that taking cognisance of an offence by Sessions Court (Special Court) under SC and ST (Prevention of Atrocities) Act without committal by Magistrate will vitiate the proceedings. The question whether trial is vitiated in any particular case depends on the degree of error and upon whether prejudice has been or is likely to have been caused to the accused. It cannot also be stated that any prejudice is caused to the accused on account of this failure. He was not deprived of some opportunity to make proper defence of the prosecution due to this irregularity. We cannot also say that due to this procedural infirmity there has been any miscarriage of justice. In fact, it is only a technical error.

As held by the Hon'ble Supreme Court in State of Madhya Pradesh v. Bhooraji & Ors. (2001 (7) SCC 479), the Sessions Court (Special Court) does not lose its competency to try the offence under the SC and ST (Prevention of Atrocities) Act when it conducts trial without the case being committed to it by Magistrate. The competency will remain unaffected by such procedural lapses. The Bench also rightly held that conditions precedent for taking cognizance is not the standard to determine whether the court concerned is "a Court of competent jurisdiction". Relying on the above said decision of the Apex Court, a Single Judge of our High Court (G. Sasidharan, (J.)) in the decision reported in 2004 (1) KLT 122 held that for the mere reason that Sessions Court took cognizance of the offence under the SC and ST (Prevention of Atrocities) Act without there being any commitment of the case in so far as there is nothing to show that any failure of justice was occasioned to the accused, cannot be taken as a ground for setting aside the order of conviction and sentence.

From what is stated above it can be safely concluded that on account of procedural lapses, taking cognizance, trial and subsequent conviction and sentence imposed on an accused cannot be erased unless prejudice is caused to the accused. It is for the accused to show that prejudice has been caused to him on account of such procedural irregularity. The judgment of the lower Court could not be set aside unless it was shown by the accused (appellant) that there has been failure of justice. More than that, the accused should have raised objection to such irregular proceedings at an earlier stage in the proceedings. He cannot be allowed to say that the lower Court followed irregular proceedings when in fact he was personally present and participated in the entire proceedings.

The appellate Court will have to consider all these points before it decides to interfere with the judgement of the court below on the ground of irregular proceedings by the court below.

Now, let us have a look at the decision in Crl.ANo.278/97 reported in 2004(1) KLT 105 (SC) = JT 2003 (9) SC 89 (Vidhyadharan v. State of Kerala). It was submitted before the Bench of two Judges that the conviction of appellant under S.3(l)(xi) of the SC and ST (Prevention of Atrocities) Act, 1995 is clearly unsustainable for the reason that the Sessions Judge had no jurisdiction to try the offence. Concurring with the decision reported in 2000 (2) SCC 504=2000 (1) KLT 609 (SC), the Bench held that Special Court under the above Act is essentially a Court of Sessions and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code of Criminal Procedure. It held that a complaint or charge sheet cannot straight away be laid down before the Special Court under the SC and ST (Prevention of Atrocities) Act. It further held that Sessions Court could not have convicted the appellant for the offence under S.3( 1 )(xi) of the Act and consequently set aside the conviction and sentence imposed on the appellant under the above section.

In the judgment there is no finding to the effect that non-compliance with the provisions of S. 193 of the code is not an error, omission or irregularity. It hasn't also found that its violation is not a technical error or a procedural irregularity. The judgment also doesn't reveal that the appellant made any grievance in the court below that the omission to follow the correct procedure by the Sessions Court caused prejudice to him. There is also no clear finding that the violation resulted in miscarriage of justice.

On a reading of the above judgment we could see that the Bench hadn't considered the provisions of S.465 of the Code of Criminal Procedure before setting aside the conviction and sentence imposed on the appellant under S.3(1)(xi) of the Act. If it had done so, I feel, it would not have set aside the conviction and sentence imposed on the appellant for the offence under the SC and ST (Prevention of Atrocities) Act. It seems that the decision reported in 2001 (7) SCC 679 = AIR 2001 SC 3372 was not brought to its notice. If the Bench had considered the provision of S.465 of the Code of Criminal Procedure and also gone through the discussion in the decision rendered in state of Madhya Pradesh v. Bhooraji and others by another Bench of the same strength of the Apex Court, certainly the conclusion in respect of the offence under S.3(1)(xi) of the SC and ST (Prevention of Atrocities) Act would have been contrary to the one now it has taken. In this context it may be noted that the Bench hadn't considered the effect of following a wrong procedure for taking cognizance. On the contrary, on finding that there was violation of S.193 of the Code, it straight away set aside the conviction and sentence imposed on the appellant under S.3(l)(xi)of the SC and ST (Prevention of Atrocities) Act, 1989. This doesn't appear to be correct, in the light of what has been stated in the foregoing paragraphs.

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LATE SIVASANKARA PANICKER - A TRIBUTE

(By  V.R. Venkatakrishnan, Advocate, Ernakulam)

In the passing away of this rare man, the bar has lost an excellent friend and the public, a generous benefactor.

It has been my privilege to know, fairly closely, late Sri. C.K. Sivasankara Panicker for the last nearly more than 40 years and I still remember the warmth with which he greeted us when we shifted from Madras to the Kerala High Court. He was a person who endeared himself to an incredible extent to all with whom he came across and I should say he was one of the few gentlemen who fulfilled the qualities mentioned by Cardinal Newman: "The true gentleman carefully avoids whatever may cause a jar or a jolt in the minds of those with whom he is cast; all clashing of opinion, or collision of feeling, all restraint, or suspicious, or gloom, or resentment; his great concern being to make every one at their ease and at home. He has his eyes on all his company; he is tender towards the bashful, gentle towards the distant, and merciful towards the absurd; he can recollect to whom he is speaking, he guards against unreasonable allusions, or topics which may irritate; he is seldom prominent in conversation and never wearisome". Without fear of contradiction, the late Sivasankara Panicker answered In a large measure the characteristics mentioned by Cardinal Newman.

As a man, he was the pink of courtesy and as a lawyer, he was gentle but firm and he never hurt the opposite side on any occasion. I have watched him with admiration at the coolness he displayed when the opposite side made a remark or made out a point, he never retorted, in the same coin. We have appeared together and I have appeared against him and he was a gentleman to his finger tips, par excellent. It was my privilege to have been his close friend for the last so many years; he was an elder brother to me, both inside the court and outside.

As Carlyle said "Industry is another form of genius" and late Panicker was a standing example of this illustrious quality of work and perseverance. He rose to the top by sheer dint of work and preparation; he was very fair to the opponent when he argued a matter, and often times, when I lost a brief, he used to console me by saying "forget about it; you have done your best."

More than his forensic skill and persuasive capacity, what arrested anybody's attention was his humility and it was without a parallel; he was humble to a fault; to my knowledge he has never offended anyone in the bar and he has been a generous friend and a benevolent benefactor. It is hard to displace such a gentle man with easy affabality and winning manners. It is difficult to forget this great Soul and his Noble Soul is bound to rest in peace.