To Hang or Not to Hang?

(By Shri M.R. Hariharan Nair, Former Judge, High Court of Kerala)

Hectic debates on the above question preceded the execution of Dhananjoy Chatterjee a few weeks back. Even after the President rejected his mercy petition, the Supreme Court had to look into the question once again and it confirmed the punishment. Dhananjoy had been convicted for committing the offence of rape and murder of a school girl. A heinous offence indeed! But then two questions would still emerge. Is capital sentence found justifiable by the society of the 21st century? Assuming it does, should it be by the primitive, if not brutal, method of hanging by the neck?

No doubt the victim, his relatives and the society at large should get justice. Capital sentence takes in an element of retribution. Perhaps it is intended more to ensure that the convict will no more be able to do harm to the society. But then, are there not other ways of ensuring it? Why not he suffer imprisonment for life in the literal sense? The recommendation of Justice Malimath Commission that "in respect of offences for which death is a punishment, the sentence of imprisonment for life without commutation or remission be prescribed as an alternative sentence" and that "suitable amendments shall be made to make it clear that when such punishment is imposed, the Government will be precluded from commuting or remitting the sentence" are relevant in this context. Articles 72 and 161 of the Constitution which provide for remission of sentences can perhaps be left as they are because even capital sentence already comes within the scope of the said provisions which enable the President and Governors respectively to commute and remit sentences. If that is not sufficient, even further amendments to the said Articles to take away imprisonment for life without commutation or remission out of their purview can be thought of.

My memory goes back to one of my routine monthly jail visits, made in the Ninentees to one of the Central Prisons of the State in my then capacity as Sessions Judge of the District. An indelible memory which still haunts me and perhaps will continue to disturb me for the rest of my life. It was this way. After meeting the prisoners housed in all the blocks of the prison, I was returning to the office room of the Superintendent to record my observations and to verify the statutory Prison Registers. A loud call then stopped me. Somebody was calling out: "Sir, please do not leave without meeting me too". That was from one of the 2 or 3 rooms in a small building where prisoners under solitary confinement and condemned prisoners were to be housed. ('Condemned", here, means condemned to face execution shortly). The Prison Authorities who were accompanying me informed me that the cry was from the solitary inmate there; one nick named by the Press as 'Ripper'. I approached him. He fell at my feet and with tears rolling down his cheeks and still wheeping like a child, he implored repeatedly "Sir, I have been convicted. I am prepared to continue here until my last breath; I assure you that; but for heaven's sake, ask them not to kill me. Please leave my life to myself. The Officers beside me told me that his Mercy Petition to the President had already been dismissed by then and that he was awaiting the decision on yet another similar petition already presented by his mother. He implored me to take some step on my part to get the capital sentence commuted to imprisonment for life, what, perhaps Justice Malimath later on called imprisonment for life without commutation or remission. But what could a Sessions Judge do in the matter except to passify him and to advise him to apply for commutation once again? Later Press Reports revealed that he was certified as having been hanged until death within a month or so after the said incident.

The Ripper taught me one thing; that life is the dearest possession an ordinary person aspires to maintain and that he would surrender anything in exchange therefore. A psycho killer who anticipated his death in a few days was no exception. A question certainly arises. If man cannot create life, why not he atleast ensure that he does not take away the life of another? Should any one be killed by the State as an act of retribution?

Now the second aspect. India appears to be one of the very few countries which resorts to the primitive method of hanging a convict to death. If he is bound to suffer death, why not he be allowed to take it without pain and too much of agony? The electric chair has given way to the syringe in many countries. What is injected is not the poison at the first instance. He is first put to sleep and then anaesthetised through injections. Only when he is out of all his senses the lethal shot is given. Perhaps a procedure for ensuring death in the most peaceful manner that even the propounders of Euthanesia would ask for it. This way the convict can be allowed to leave the world without the slightest feeling of pain. According to me such a reform which can be brought in without any financial commitment and with just a humane approach and appropriate amendments to the Constitution, Penal Code, Criminal Procedure '"'ode and the Prison Rules should have been adopted in India long back. Should we wait for International Covenants and Treaties to bring this up? Certainly not. The earlier the changes are brought, the better it is for all concerned.

Justice Malimaih Commission has not touched upon the above aspect, though as item 105 of Recommendation No:14 it suggested prescribing new forms of punishments wherever appropriate, It should be possible for the Government to give sufficient consideration to this aspect of L-aw Reforms as well along with the prospective criminal law reforms. The Resolutions passed by legal bodies and legal fora (Bar Associations and Bar Councils included) will certainly go a long way in accelerating the consideration of the required changes.

Is it Time to Appoint Judicial Clerks in the High Courts?

By M.R. Hariharan Nair, Former Judge, High Court of Kerala)

According to me, the answer to the above poser is an emphatic yes. Why so? The system of certifying particular judgments for reporting leads to a possibility of some judgments appearing only in particular journals and even uncertified judgments appearing in some others. There does not appear to be any system in vogue of keeping all judgments pronounced by different benches of the High Court duly indexed and circulated and as such Judges are not enabled to make a error-proof search for precedents. The problem gets aggravated because one and the same cause of action can lead to different proceedings in different benches for the same Court though for the same relief. Examples are aplenty. The subject matter of a CRP can very well take the shape of a Writ Petition under Art. 227 and can fetch a relief which perhaps the Revisional Court might have refused. An injunction which should normally be granted by the Civil Court are sometimes issued by the Writ Court acting under Art. 226. Under the Criminal Law also the position is no different.

The fact that our High Court is still not able to place all its judgments, reportable and not reportable in its Web Site disables proper searches being made for precedents by Judges and lawyers. What is the result? Per in curium decisions emerge. An illustration can be shown by making reference to two recent decisions of the Apex Court, taking diagonally opposite views and the later decision having been rendered per in curium.

The decisions under reference are Mohanan v. Prabha G. Nair & Anr. (1 (2004) CPJ 21 (SC)) decided on 4-2-2004 and Dr. Suresh Gupta's case (Appeal (Crl.) 778/2004) 2004 (3) KLT 14 (SC) decided by the Supreme Court on 4-8-2004.

The latter decision was rendered without any reference to the earlier decision given by the same Court in Mohanan v. Prabha. In that case a woman in the seventh month of pregnancy underwent medical intervention and delivered a dead child on the next day and she passed away three days later. The husband alleged in his police complaint that though he repeatedly asked for permission to remove his wife to a Medical College Hospital, the doctor had advised against the shift and that the death was the result of negligence coming under S.304A of the IPC.

The High Court which dealt with the Doctor's petition under S. 482 Cr. P.C. held that the mere fact that a patient dies in a hospital does not lead to the presumption that the death occurred due to the doctor's negligence and that to hold a doctor criminally responsible for a patient's death, it must be established that there was negligence or incompetence on the doctor's part which went beyond civil liability. Criminal liability, according to the learned Single Judge, would arise only if the doctor did something in disregard of the patient's life and safety. Stating so, the High Court quashed the charges.

The Supreme Court, however, set aside the said HC decision. It held that the doctor's negligence could be ascertained only by scanning all material and expert evidence that might be adduced during trial and that the High Court was not justified in quashing the complaint at the threshold invoking the special power under S.482 of the Criminal Procedure Code as that would do away with a full-fledged criminal trial necessary for fixing criminal liability.

Let us now see the facts of the later case. Dr. Suresh Gupta, a plastic surgeon, operated on his patient for removing a nasal deformity. Allegedly, he made an incorrect incision as a result of which blood seeped into the patient's respiratory passage leading to his immediate collapse and death. A case was filed against the doctor under S.304A of the Indian Penal Code.

Rejecting Dr. Gupta's plea for discharge without trial, the magistrate concerned found that the cause of death was "blockage of respiratory passage by aspirated blood consequent upon surgically incised margin of nasal septum"; that blockage and aspiration of blood from the wound were not likely to arise if a cuffed endo tracheal tube of proper size had been introduced before the operation and kept intact, and that the negligence in not taking this precaution justified further trial proceedings for the offence under S.304A of the I.P.C.

The Supreme Court did not agree to this. It held that in order to fix criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high that it can be described as gross negligence or recklessness and not merely lack of necessary care, attention and skill; and that a careless act of a medical person can be termed 'criminal' only if it exhibits gross lack of competence or inaction and wanton indifference to his or her patient's safety, resulting from gross ignorance or gross negligence. Mere inadvertence, error of judgment or some degree of want of adequate care and caution might create civil liability; but not criminal liability.

Holding so the doctor was acquitted by the Apex Court without trial and in limine.

The conclusions and observations in the two cases appear to be mutually irreconcilable. If the quashing of the charge by the High Court with the observation that to hold a doctor criminally responsible for a patient's death, it must be established that there was negligence or incompetence on the doctor's part which went beyond civil liability and that Criminal liability would arise only if the doctor did something in disregard of the patient's life and safety and the consequent quashing of charge by the High Court was not in order in Mohanan's case, how could the reasons given for quashing charges in Dr. Suresh Gupta's case be correct? Obviously the two findings and conclusions cannot sail together. If the decision in Mohanan's case were cited before the later bench which decided Dr Suresh Gupta's case, the ultimate decision, in all likelihood, would have been different. Obviously, there was no such reference during arguments and that led to a conflicting decision by a bench of equal strength. (According to Press Reports the matter has subsequently been placed before a larger bench and it is pending).

Perhaps the degree of danger is more in cases where in addition to suppression of binding precedents there arises citation of over ruled decisions which have no force of law and they are relied on for giving the verdict. One such instance was deprecated by the Supreme Court in strong terms on 12th August 2004 in Criminal Appeal Nos. 870-872 of 2004 (State of Orissa v. Nalinikanta Muduli (2004 (3) KLT (SC) (SN) 30 = 2004 SCCL.Com.704). In para 6 of the said decision it was emphatically stated by the S.C. as follows.

"It is strange that a decision which has been overruled by this Court nearly quarter of a century back was cited by the Bar and the court did not take note of this position and disposed of the matter placing reliance on the said overruled decision...........It is a veryunfortunate situation that learned counsel for the accused who is supposed to know the decision did not bring this aspect to the notice of the learned Single Judge. Members of the Bar are officers of the Court. They have a bounden duty to assist the Court and not mislead it. Citing judgment of a Court which has been overruled by a larger Bench of the same High Court or this Court without disclosing the fact that it has been overruled is a matter ofserious concern............... We can only express our anguish at the falling standards ofprofessional conducts. Impugned judgment of the High Court is set aside...".

Well, what have these observations and apprehensions to do with Judl. Clerks? And what role can they play in such matters? The first and foremost thing is that maladies as above can be avoided through the services of the Judl. Clerks who act as attorney-assistants. In the United States and Canada they have been in position for quite some time. Judges of the Federal, State and Supreme Courts there utilize their services. They have knowledge in law and are meticulous in their work. Clerkships there are usually offered to graduates of outstanding merit and good writing skills coming from well reputed law schools or to law students undergoing the 3rd year of their study. Their normal tenure would be only two years or less. Often, they might have proved their merit as editors of their law schools' journals and the like and possess an analytical and research focused mind. Their duties include conducting library research, drafting other materials helpful for appreciating oral arguments made in court and in assisting judges in the writing of judgments by presenting up-to-date case law.

What are the advantages here? As far as the clerk is concerned, experience derived through such work adds substantially to their skill and knowledge and thus benefit them in their future career as lawyers. It would expose the clerk to the actual process of judicial thinking on the specific problems arising in the case and provide him with an opportunity to discuss substantial legal issues with the Judge to whom he is attached.

Scope for the development of the judicial clerkship programme in India is substantial Indian Judges of all levels also need quality assistance in the discharge of their duties and responsibilities. All the same it can be introduced in stages starting from the apex level downwards, perhaps right up to the level of Tribunals having state wide jurisdiction. Bright students in Law Colleges would certainly vie with each other for securing clerkships as it would provide them with an excellent opportunity to gain first hand exposure to Court procedure and enable them to catch up with up to date case law. At the High Court level it would also provide them with exposure to working experience in constitutional law, administrative law, service matters and issuance of Writs of different types. Those intending to practice Tax law can likewise take up clerkships at the ITATs. and assist the tribunal members by doing research on questions of law, digesting, and even drafting. At the Supreme Court and High Court levels, such clerks can be of tremendous assistance to judges in preparing summary of facts, conducting general research, looking for and updating relevant authorities, reading briefs and in streamlining the record of facts and arguments. Desirably, judges and members of Tribunals can have interactive sessions with the prospective clerks before selection. It would provide the Judges with a unique opportunity for contributing to improvement of quality of the Bar by enhancing the quality of legal education. The benefit will thus be mutual. Above all, assistance of such clerks will certainly reduce the situations and lapses as mentioned at the beginning of this article and add to the quality of judgments that would emerge from the Courts of the land.

Press Reports would indicate that Justice Kirpal, as the then CJI, had favoured the idea of introducing judicial clerks in India also. So why not give it a try after discussions in the Conferences concerned? The earlier we start judicial clerkships in India, the better it would befor all concerned.

Talaq & Supreme Court Decision on Shamim Ara Case

(By Sheena Shukkur, Advocate, Hosdurg)

The decision rendered by Division Bench of the Hon'ble Supreme Court in Shamim Ara v. State of U.P. (2002 (3) KLT 537 (SC)) would call for serious discussions on the socio-economic aspect of the Muslim woman community. The Supreme Court in this case upheld the compassionate meaning of Talaq, when it said that, a mere plea taken in a written statement of a divorce having been pronounced earlier cannot by itself be treated as effectuating talaq.

In this case, Shamim Ara was married to Abrar Ahamed during 1968 & 4 sons were born out of the wedlock. During 1974, Shamim Ara, the appellant filed an application under S. 125 Cr. P.C. for maintenance from her husband, the respondent No. 2, complaining of desertion and cruelty. The Family Court at Allahabad refused to grant any maintenance on the ground that the respondent already divorced her and hence not entitled to any maintenance. The history of the case goes to show that the respondent No.2 made a mentioning in his written statement that he had pronounced Talaq on appellant earlier and there remains no liability for maintaining the appellant, since the parties ceases to be spouses. This was re-instated by him when at the witness box he deposed that he divorced the appellant in the presence of 4-5 witnesses (2002 (3) KLT 537 (SC) at P. 538).

The issue considered by the Supreme Court here is whether a Muslim husband's plea of this sort be made reason for "the wives suffer this tyranny" (Muhammed Haneefa v. Pathumma Beevi, 1972 KLT 512 at P. 514) of being divorced unreasonably at the will and wish of husband, and make her lead the life of a divorcee for unsubstantiated cause (Supra n.1 at p. 544. para.16). The Hon'ble Court made reference to the authorities of Muslim law like Mulla (Mulla 's Principles on Mohammedan Law (nineteenth edn.), 1990 at p. 259 Para. 310) andThahirMahmood (Dr. Tahir Mahmood, "The Muslim Law of India" second edn. at p. 114), on the power of the Muslim husband to divorce his wife, and commented negatively in this decision, on their liberal view of talaq to end the marital relationships between the Muslim spouses at the instance of the husband.

The Supreme Court thus decided that a plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband.

It is of vital importance, at this juncture to look into the socio-economic impact of this decision, precisely. A Muslim wife who inclines to move the court for maintenance under S.125 Cr.P.C. will be definitely deserted by her husband, and may be subjected to cruelty also, and that she is badly in need of economic maintenance. To her petition does the husband, in order to escape from the burden of maintaining his wife, takes an irresponsible bend and make excuses, including plea of no means, no job to maintain wife etc. And again as last resort, the husband is taking plea of divorce or talaq pronounced earlier with the sole intention of defeating the maintenance claim under S. 125 Cr.P.C. The Muslim husband inclines to escape from the liability to maintain his wife, and from the court of law and for that he even "walk out of the wedlock at his whim" (A. Yusuf v. Souramma, AIR 1971 Ker. 261). This means that he does not at all wanted to maintain his legally wedded wife and that in order to escape from the liability of maintaining his wife, he even disposes of the marriage by claiming pronouncement of talaq earlier. In this situation, if the claim of divorce is not permitted will the husband maintain his wife & lead a marital life with her? And as to the appellant, she loses the status of wife, the moment she came to knowledge of the husband's claim of divorce pronounced earlier.

Talaq, as commonly known, may be oral or in writing (Supra n. 4) and many other authorities (Supra n. 4 & Paras Divan. Muslim Law in Modern India (Eighth edition), reprint 2001 at p. 71) viewed it as much easier. Men are given liberty to divorce their wives unilaterally, without assigning any reason (Ibid). A Mohammedan of sound mind who has attained puberty may divorce his wife whenever he desires, without assigning any causes (Supra n. 4 at p. 258). Mulla again stated that "if a man says to his wife that she had been divorced yesterday or earlier, it leads to divorce between them, even if there be no proof of a divorce on the previous day or earlier (Id at p. 259)". There are even forms of talaq where with a single pronouncement

like "I divorce thee irrevocably (Id at p. 261 para.31 l(3)(ii))" the divorce is made irrevocable. A series of examples of this sort is quoted by the Hon'ble Apex Court in this case text itself (Supra, n. 1 at p. 540).

The impression of all these, I think is that as Thahir Mahmood has rightly observed that a Muslim husband can divorce his wife by unilateral action and without the intervention of the court (Supra n.5 at pp. 113-119)

To speak out in general, these types of talaq or the existing forms of divorce under personal law is the exercising of despotic power by the husband who has an unfettered right (A.M. Battacharjee, Matrimonial laws and the Constitution, 1996 edn. at p. 55) to "walkout of the wedlock at his whim" (Supra n. 6 at p. 266). This may be the reason why a learned Judge, Khalid, J. has characterised such despotic power as 'monstrosity' (Supra n.2) and that one of the authorities of personal law Mulla's own statement that these forms of talaq are "good in law though bad in theology (Supra n. 4 para.311 at p. 261)". This observation has reached up to state that in Khlemnissa v. State of U.P. (Writ Petition No. 57 of 1993. This case not yet reported quoted from Infra n. 8 at p. 73), Thihari, J., held triple divorce as unconstitutional and are contrary to Arts. 14,15 & 21 of Constitution and hence void.

The situation being this and if consideration is as to the marital status of wife alone, the judicial interpretations of, pronouncement of talaq, ought to be one more similar to the decision on hand, prior to this decision itself. Where as, the picture on hand is different, in the light of some of the decisions which are vital in the Judicial history of Muslim personal law. The Privy Council observed in Munshee Buzl - Ul Raheem v. Luteefut Oon-Nisa ((1861) 8 MIA 397 courtesy to n. 15) - a divorce by talaq is the mere arbitrary act of the husband who may repudiate his wife at his own pleasure, with or without any cause. Again in Moonset Buzloor Rahimv. Shumsunneesa Begum ((1867) 11 MIA551 (610) Courtesy ton. 15)-it was observed that the matrimonial law of the Mohammedans, favors the stronger sex where the husband can dissolve the tie at his will.

A husband married under Muslim law can unilaterally 'walk out of the wedlock at his whim' (Supra n. 6) by a talaq by the husband which has been recognized as operative mode of divorce (Bai Thahira v. All Hussain, AIR 1979 SC 362). The wives who petitioned for maintenance from the husband under S.125 of Cr.P.C. were referred to us "Talaked (Fuzlumbi v. Khader Vali, AIR 1980 SC 1730)" wives. Again during 1981, Supreme Court observed (Zohara Khatoon v. Mohammed Ibrabim, AIR 1981 SC 1243) that under Muslim law the commonest form of divorce is unilateral declaration of pronouncement of divorce of the wife by husband. This was reiterated in 1985, when Supreme Court appears to have accepted this mode of unilateral divorce as a legally operative process of dissolution of Muslim marriage again (MohammedAhamed Khan v. Shahbanu Begum, AIR 1985 SC 945).

It is crucial to think on these decisions, that with due criticisms, (Supra ns. 2, 6,17), why the Apex Court had again favoured the unilateral power of the husband to divorce his wife? ".....in the absence of serious reasons, no man can justify divorce, either in the eye of law or the religion (Supra n.1, at p. 542)". The Holy Qur'an, the most scared and the essential source of Muslim persona! law, has many more to say on divorce or talaq, especially on the formalities of talaq and its pronouncements, some of which has been quoted in the text (Ibid).

But in another context The Holy Qur'an reveals that

                                                            When ye divorce

                                                            Women, and they fulfill

                                                            The term of their (iddah)

                                                            Either take them back

                                                            On equitable terms

                                                            Or set them free

                                                            On equitable terms,

                                                            But do not take them back

                                                            To inure (them)(or) to take

                                                            Undue advantage.

(Qur'an II. 231)

It is clear from the above that, where the intention of a husband to divorce his wife is claimed and the husband does not want to take her back, he should not be made take her back, either to injure her or to take undue advantages. What more is expected from a husband, against whom a petition under S. 125 Cr.P.C. is preferred by the wife, which lead him claim divorce, and has taken back the wife for only to please the court of law, than to injure her. This may be the ideal of V.R. Krishna Iyer, J. too when his Lordship repeatedly uses the word "incompatibility (Infra n.6)" to mean if a marriage is broken down beyond the possibility of repair, it is better to put it as under. In this case, the divorce claimed by the husband through the written statement itself is breakdown of marriage, and it will be putting more harm into the wife than protecting her, if she is not allowed to claim a divorced wife's status.

In another situation Qur'an observes -to separate with kindness and take them back or set them free on equitable terms and on divorce

"it is not lawful for you (men) to take back

Any of your gifts (forms your wives)".

Qur'an II: 229

this means that, any gift given to the wife, by the husband, should not be taken back, by the husband on separation.

These principles were laid down in the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Muslim women would get much more under the Act than under S. 125 Cr.RC.

The Act provides under sub-s. (1) of S.3.

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 her divorce, a reasonable, and fair provision and maintenance to be made 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 dower agreed to be paid to her at the time of her marriage or at 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 relatives of the husband or his friends.

This is provided only for a divorced woman.

A Muslim woman, loses the status of a wife, the moment, her husband declare his intention to divorce her, is the fact. And it is not fair for her to continue as wife merely for the purpose of obtaining benefits under S.125 Cr.P.C. Or isn't it questioning the dignity of a Muslim woman, if she is retained as a wife solely for the purpose of maintenance under Cr.P.C.

In this case how can we assure that, the appellant will be looked after by the respondent No. 2, and will show be maintained, in compliance of the decision. Again is there any scope in thinking that, if not maintained by the respondent again, she will once more prefer a Petition under Cr.P.C. These are all things beyond the imagination of a Muslim woman.

A divorced woman again is protected by and under S.4 which says that, notwithstanding anything contained in S.3, a divorced woman is entitled to file an application for maintenance from her relatives of Wakf Board, if she is not in a position to maintain herself if she has not been able to obtain any fair and reasonable maintenance from husband, S.4 contemplates a situation where the divorced woman is not in a position to maintain herself after receiving maintenance in lump sum from her husband or provision which was found to be reasonable and fair at the time of divorce, but is no longer sufficient to maintain her. In such a case she is entitled to file an application for maintenance and get it from her relatives, such as her children or her parents. If they are not in a position to pay it, then she may claim if from the Wakf Board.

Muslim law demands that a divorced Muslim woman should not go unsheltered and unprotected. And that all the benefits given under the Act, are only for divorced Muslim women.

Regarding the view of the Hon'ble Court on the pronouncement talaq, it is not necessary that the talaq should be pronounced as has been given in the form as in Chamber's. The. intention of separation is given primary importance to that of pronouncement of divorce. This is evident from the different views of authorities and the earlier cited judicial decisions.

Now with due respect, I may extend my sincere fear that, as the eminent jurist Benjamin Cardozo has observed –

There are gaps to be filled, there are doubts and ambiguities to be cleared up.........there are hardships and wrongs to be mitigated, if not avoided.

or interpretation will not give correct legal effect.

As the Hon'ble Court has observed in Bai Thahira (Supra n. 23) - "Law is dynamic and its meaning cannot be pedantic but purposeful". The purpose here ought to be the protection and maintenance of the Muslim women in true sense and not only in legal sense. As realist observes, law should be interpreted to consider the situation of a "bad man" (Oliver Wendell Holmes), the man who is anxious to secure his own selfish feelings.

Hence I feel, that the honourable Supreme Court ought to have provided her with the benefits of Muslim Women's Protection Act, instead of granting 125 Cr.P.C.

Protection To a Divorced Muslim Woman

(By Sheena Shukkur, Advocate, Hosdurg)

S.125 of Criminal Procedure Code, 1973, entitles the Muslim lady to claim maintenance against the husband, on the ground of the husband's neglect or refusal to maintain her. The Muslim husband often defeats this claim of maintenance by a Muslim wife by pronouncing the Talak on her.

The rights of a thus divorced Muslim woman is provided under S. 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 - ('The Act' herein after)

S.3(1) of the Act reads as

(1) 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 her 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 Mahar or dower agreed to be paid to her at the time of her marriage or at 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 relatives of the husband or his friends.

If the divorced Muslim woman is not in a position to maintain herself and if she has not been able to obtain the fair and reasonable and other provisions as provided under S.3 of the Act, from her former husband, she has a claim over her own relatives and if not over the Wakf Board for her maintenance as provided under S.4 of the Act.

An initial peep into the intention of this protection clause of the Act, necessitates a quick look over the history of the birth of this Act.

In Mohammed Ahamed Khan v. Shah Bano Begum (AIR 1985 SC 945) the decision of the Supreme Court favoured the Muslim divorced woman, by enhancing her rights to a large extent under S.125 Cr.P.C. The Hon'ble Supreme Court reiterated the obligations of the husband, towards his divorced wife in this case, which in turn agitated the Muslim Personal Law Board. The concept was that, a divorced Muslim woman and her former husband are two distinct individuals and that there arise no obligation of maintenance towards a divorced woman. And thus the decision of Shah Bano caused agitation by the Muslim Personal Law Board. This paved way for the birth of a new legislation, or the Act, by a healthy compromise among the feelings of personal law and general law.

Under S.3 and the other procedures, the husband who has divorced the Muslim wife is liable both in the person and property to meet the order passed by a Magistrate. S. 3(4) further says that, if the husband fails to comply an order under the same, a warrant may be issued and incompliance again means, Magistrate may sentence such person for imprisonment for a term of up to one year. So a person against whom such a sentence is ordered by the Magistrate, under the Act, and if he inclines to undergo the punishment of imprisonment, the duty of the judiciary may be completed, but what about the intention and object of the legislation; or in other words how is the divorced Muslim woman protected and maintained?

Of course S.4(1) entitles a divorced Muslim woman who is not remarried, to obtain an order against her own relatives for maintenance, and if the relatives has no means to maintain her, for a direction under S.4(2) against the State Wakf Board for maintenance.

The intention of the legislation is thus crystal clear from the Act that a divorced Muslim woman should not be left unprotected.

But the question is, how far a divorced lady is protected by and under S.4 practically. If the object and aim of the Act is to protect the lady financially also, for her maintenance, why is not there any liability imposed upon the relatives of the divorced husband. Because the liability on a dissolution of marriage under S.3 of the Act initiates form the very existence of that marriage earlier, isn't there a liability on the part of the husbands relatives to provide her with the essentials under S.3, since they are also to inherit the property of husband? There are many instances were, immediately on becoming a respondent under proceedings of S.125 Cr.P.C, the husband transfer the ownership of his property to his father or other relatives, and pronounce talak, to escape from and defeat the cause and purpose of the Act.

So if the intention of the law is to protect the divorced Muslim woman in the sense and purity enhanced by Koran and the Principles of Sunnah, the essential sources of Muslim law, the Order of Payment Clauses under S.4 of the Act may also include, a provision so as to make a direction by the Magistrate against at least the koranic heirs of the former husband to recover and meet the essentials of S.3 of the Act, by the divorced woman within the period of iddat.

The Kerala Loading and Unloading (Regulation of Wages and Restriction of Unlawful Practices) Act, 2002 Whether A Perfunctory Piece of Legislation?

(By S.H. Panchapakesan, Judicial First Class Magistrate, Ernakulam)

The principle embodied in the legal maxim - "Nemo debet locupletrari aliena jactura " (No one ought to be enriched by another's disaster) is always considered to be worthy and significant in a civilized society. But, unfortunately, the men of the present age do not have any consideration towards their fellow beings based on such principles. One of such classic examples could be found in the field of loading - unloading and transportation of goods, both for domestic and non-domestic purposes. All of us are aware of the 'unlawful practices' prevailing in the said field. In most of the cases, the practices, which are termed as "unlawful", come from the part of the workers.

Now, some solution to the problem has come, as the State Legislature has brought out a special Law for regulating the wages and restricting the unlawful practices in connection with loading-unloading and transportation of goods within the State. The Act titled - The Kerala Loading and Unloading (Regulation of Wages and Restriction of Unlawful Practices) Act, 2002 (Act 10 of 2002) (for short 'the Act') has been published in the Kerala *Gazette Extraordinary No.1277 dated 2nd September, 2002. The Act will come into force on such date ** as the Government may by notification in the official gazette appoint. As the short title itself indicates, the Act aims at regulating wages and also to restrict the unlawful practices prevailing in the field of loading and unloading activities. The provisions of the Act are applicable to any loading and unloading work or activity or process which is connected with or ancillary to domestic purpose, as well as non-domestic purpose. In addition to the regulation of wages to be given to workers, the Act through the penal provisions contained therein, (in Chapter V of the Act) also aims at protecting the employers from the unlawful practices, which the loading - unloading workers may adopt in that connection. In short, with the introduction of the penal provisions therein, the Act aims at making drastic changes in the above said field.

But, when we go through Chapter V of the Act (which deals with penalties and procedure), it appears that the provisions therein (i.e., Ss.12 to 16) may not always come to aid the needy, in view of the legal bar contained in sub-s. (2) of S.18 thereof.

An analysis of S.18 of the Act would reveal this aspect. S. 18 of the Act reads as follows:

"18. Certain offences to be cognizable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 the offences punishable under Ss. 12,13 and 14 of this Act shall be deemed to be a cognizable offence within the meaning of that Code.

2002, vide Notification G.O. (Ms.) No. 74/2002/LBR. dated 1st November 2002, published as S.R.O. No. 898/2002 in the Kerala Gazette Extra ordinary No.1582 dated 1.11.2002.

(2) No court shall take cognizance of the offences referred to in sub-s,(1) except upon a Police report as provided in the Code of Criminal Procedure, 1973."

On an examination of the above section, it appears that there may be seldom chance that the protection given to the employers (in the event of commission of any unlawful activity) as provided under Ss.12 to 16 of the Act may come to the help of the victims of such practices in time. Because as disclosed by sub-s.(2) of S.18 of the Act, a Court can take cognizance of an offence punishable under the Act, only if the Police files a report on such facts. But, when we consider the intricate nature of the issues involved in the loading-unloading activities, it appears that such a restriction itself may defeat the very purpose of the enactment, especially when the Act has excluded the other two popular methods of taking cognizance provided under S.190 of the Code of Criminal Procedure, 1973 (for short "the Code"). As per sub-s.(1) of S.190 of the Code, cognizance may be taken in the following three ways, videlicet,

a) upon receiving a complaint of facts which constitute such offence;

b) upon a police report of such facts;

c) upon information received from any person other than a Police Officer, or upon his own knowledge, that such offence has been committed.

But in the case of the Act now under discussion, sub-s.(2) of S.18 of the Act specifically bars the taking of cognizance of offences under the Act as per the two procedures specified in Cls.(a) and (c) of sub-s. (1) of S.190 of the Code.

As only one form of taking cognizance (i.e., only on Police report) is specified in sub-s.(2) of S.18 of the Act, naturally the maxim - "Expressio unius est exclusio alterius (The mention of one is the exclusion of another) would apply and in the result, the other two popular methods of taking cognizance, provided under Cl. (a) and (c) of sub-s. (1) of S.190 of the Code cannot be done.

Here the cardinal aspect to be noted is that as per CI. (c) of sub-s. (1) of S.190 of the Code, upon his own knowledge that any offence has been committed, a Magistrate is competent to take cognizance in respect of that offence. But, as per sub-s. (2) of S.18 of the Act, even a Magistrate (who by virtue of his office is considered to be a Court) having his own knowledge of the commission of any offence under the Act is legally precluded from taking cognizance of the same. At least such an infirmity cast upon a Magistrate under the said provision in the Act could have been avoided to ensure justice to the victimized employers.

This being the position, in the event of the commission of any offence punishable under the Act, the only one avenue open to an aggrieved person is to approach the Police for remedy. In such circumstances, as we all know, the Police who are certainly under the clutches of political executive may not be able to render justice to the deserving victims, owing to their control by the political higher-ups. If due to political pressure, the Police are reluctant to file a report on the commission of any offence punishable under the Act, which they are authorised to file as provided under sub-s.(2) of S.18 of the Act, (even after resorting to all the administrative remedies) no doubt, the poor victimized employers will be put to flagrant violation of justice. Occurrence of such bitter instances cannot be ruled out, as the Police force is yet to be made impartial. In short, the poor victims who may be put to the atrocities of the nature mentioned in the Act, may have to pray for the mercy of the Police. It might be after foreseeing such remote chances, the framers of the Code of Criminal Procedure, 1973 in their wisdom has included the three methods mentioned in sub-s. (1) of S.190 of the Code, by which a Magistrate can take cognizance of an offence.

Moreover, the unfettered power conferred on the Police under sub-s.(2) of S.18 of the Act may result in some unhealthy practices in the field. This could be explained with the help of the following illustration:

'A' an employer, usually engages 'CRANE', who are workers of his own choice to perform loading-unloading operations for him. One day while 'A' was out of station (or in the absence of 'A'), 'IRON BOYS', another group of workers, who have access to the Political executive, make a false complaint to the Police to the effect that the 'CRANE' have committed one of the offences punishable under Ss.12, 13 or 14 of the Act. 'IRON BOYS' having access to the Political execulive, succeeds and the Police registers a case (even without hearing 'A') against 'CRANE'. As the offences are cognizable, the Police arrest the 'CRANE' who were actually employed by 'A'.

From the above illustration, it could be seen that even though an employer is at liberty to engage persons of his own choice for the loading-unloading operations, (as provided under S.4 of the Act) as the right to prefer complaint has not been limited to the employer or a person duly authorised by him, the workers or such other persons having access to the political executive may with the help of the Police, utilise that opportunity to wreak vengeance on the employer or the workers engaged by that employer. So, the right to prefer complaint ought to have been limited to the employer or a person duly authorised by him. (The restriction/ limitation as to the persons who may file a complaint for the offence punishable under S.498A of the Indian Penal Code, 1860 may be an example).

As stated earlier, the Act under discussion has been enacted with a view to safeguarding the interest of employers in the matter of loading-unloading and transportation of goods. It has been introduced with a view to (as per the Statement of Objects and Reasons) curbing the undesirable practices which have arisen in the loading and unloading sector. The basic objective of the legislation is to lay down the type of activities, the eligibility of the worker, the rights of the employers, wages, penalties and procedure for initiating criminal prosecution. It prohibits extortionary, intimidatory and other unlawful practices connected with loading-unloading and transportation of goods and articles both in the domestic and non-domestic sectors. As such, it may be stated that the Act has been brought out with a view to building up a sound environment which would help the industry to flourish and also to create a peaceful atmosphere in the loading-unloading and transportation of goods in the domestic field.

But the earlier said restriction contained in sub-s.(2) of S.18 of the Act, which bars the taking of cognizance of any offence under the Act, otherwise than on Police Report and which confers unfettered power on the Police seems to be curtailing the social significance of the said special enactment.

In short, such a restriction would amount to curtailing of the citizens' valuable right to have access to justice. All such legal infirmities could be avoided by way of incorporating the other two methods also (i.e., Cls. (a) and (c) of sub-s. (1) of S.190 of the Cr.P.C.) by which a Magistrate can take cognizance of an offence.

Hope that attention of the concerned would reflect upon these cardinal aspects and a solution will ensue soon.

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*See 2002 (3) KLT Kerala Statutes 22-30.

* *The Act came into force in the whole of the State of Kerala w.e.f.5th November,