Collegium in Collation with Executive’s Frailty

(By S. Sanal Kumar, Advocate, High Court of Kerala)

Essential attributes of State are Government, Territory, Sovereign and Population. Sovereign power, with the evolutions of State, got distributed in Executive, Judiciary and Legislature. Each component acted as countervailing forces against the other to prevent accumulation of Sovereign power in one entity. ‘Separation of Power’ of Montesquieu lends credence to this system with a political philosophy contained in his ‘Spirit of Laws’. We, with rich heritage of this philosophy from the British, engrafted in our Constitution, this remarkable barriers of governance or, more precisely the field of play of three pillars of governance. The ‘basic structure theory’ churned out by the Constitutional Court has given judiciary an insulated status by coining ‘independence of judiciary’ as one of the several attributes of ‘basic structure of Constitution’.

With the doling out of Sovereign Power in three limbs, the election of functionaries to man the respective realm became inevitable. Civilised democracies elect by voting their Legislators to sit in the Legislature. The Legislators, in turn, choose the Executive (Council of Ministers). The Executive, with consultations of Members of Judiciary, selects the Judiciary. In the entire exercise being carried out in this way, the Will of the People is reflected in the crowning process of the three limbs of Sovereign. Consciously this paramountcy of Will of the People is given recognition in the Indian Constitution. Articles 124 and 217 of the Constitution speak about the appointment of Judges of the Supreme Court and High Courts respectively. Supreme Court Judge was conceived to be appointed by the President (Executive Head) in consultation with such Judges of the Supreme Court and of the High Courts as the President may deem necessary. But in the case of appointment of Supreme Court Judge, there must be mandatory consultation with Chief Justice of India. Likewise, in the appointment of Judges of various High Courts, the President shall consult the Chief Justice of India, the Chief Justice of the concerned High Court and the Governor of the State. With the commencement of the Constitution, this Will of the People worked efficaciously through appointment procedure moulded by the Memorandum of Procedure. The Executive, through the Ministry of Home Affairs, often initiated the process of appointment by nomination and elicited the views of the Chief Justice of India in the matter of appointment of Supreme Court Judges. Sometimes the nomination came from the Chief Justice of India, which also gets approbation at the Executive Head. The politicians at the top echelons of Executives on those days, with their impeccable integrity and uncompromising values and ethos on constitutionalism and democracy, never went astray in their commitment to people of India to make independent India a Role Model to emulate for other Nations. Persons with proven efficiency, expertise in law, legal acumen and, above all, with utmost rectitude, were chosen to the constitutional Courts. In turn, these gems on Judiciary contributed immensely to the People of India by giving flesh and blood to the Constitution by their interpretations to various Articles of Constitution. Full reflection of the political philosophy encapsulated in the Preamble to the Constitution found enlarged in its scope and amplitude in every exercise of interpretation. The development of Constitutional Law in India is from the brains of these hand-picked lot of our politicians, who imbibed values and ethos from national movements. The primacy of Executive in the selection process was never frowned up on as the repository of power of appointment, i.e. the Executive Heads, could not go wrong.

‘The Separation of Power’ doctrine started showing signs of malaise, when Prime Minister Indira Gandhi was turning totalitarian. For consolidation of power, Mrs. Gandhi started aggrandizement up on Judiciary. On June 12, 1975 election of Indira Gandhi was set aside by the Allahabad High Court and she could continue as Prime Minister based on stay granted by the Supreme Court with condition that she shall not take part in deliberations in Parliament and vote. In the historic ADM Jabalpore case, Justice H.R. Khanna delivered adissenting judgment holding that there cannot be any suspension of fundamental rights during the Proclamation of Emergency and a writ of Habeas Corpus will lie against illegal detention. This minority judgment was not to the liking of Mrs. Gandhi for which Justice Khanna had to heavily pay for. Though by convention, constitutional courtesy and hitherto followed cordiality of Judiciary and Executive, Justice Khanna who wasthe senior most Judge had to be elevated as Chief Justice of India as per the norms, of seniority, President on the advice of council of Ministers headed by Mrs. Gandhi, appointed Justice M.H. Beg as the Chief Justice of India in January 1977. That was an onslaught on the cordiality and camaraderie of two great organs of State - the Judiciary and Executive. The consultations envisaged in the Constitution became a customary nod of servility. Independence of judiciary was turning to be interdependence and imposed captivity. People of India became sceptical at this Executive hegemony. The electoral rout of Mrs. Gandhi in 1977 and period of two years thereafter, witnessed a damage control exercise on the Constitution by the Janata Government.

When Mrs. Gandhi voted to power in January 1980, the euphoria of Constitutional reforms and restructuring came to an end. Mrs. Gandhi’s majority in the House of People was 2/3rd which was enough to impose upon all for further arrogation of all powers to herself. The power of appointment of Judges came for deliberation directly in S.P. Gupta Case, popularly called the Judge’s Transfer case. India witnessed a resurgent and retaliatory Indira Gandhi in an out-and-out vindictive mood. She invoked Article 356 to dismiss the Janata Party ledState Governments in one lot, which enjoyed majority. The blatant misuse of Article 356 did not augur well for other strong limbs of State. Single Party Rule with Single Person as a totalitarian, with prospects of impeachment, was enough for holding Judiciary under leash. As expected, in S.P. Gupta case, the Supreme Court on 30.12.1981 upheld the primacy of Executive in the matter of appointment of Judges to Constitutional Courts. It was further held that the opinion of Chief Justice of India can be brushed aside for ‘cogent reasons’. Thus the Executive, manned by Single Party Rule, resisted the unspoken desire of the Judiciary to arrogate to itself the power of appointment.

But by late 90’s, scenario changed when India was heading for fractured verdicts and minority governments. Politicians got vulnerable and timid as innumerable scandals involving them erupted. The Jain Hawala case, which originated in 1991, brought under its net top political leaders of the country, cutting across political barriers. Prominent leaders like V.C. Sukla, Shiva Sanker, L.K. Advani, Balram Jhakkar and Madanlal Khurana, all came under the unsavoury allegations of periodical payments by way of bribery. The prosecution proceedings made themsusceptible and imbecile. The minority Government led by P.V. Narasimha Rao was not an imposing intimidation for the Judiciary. The Executive was apparently weak with frailties of corruption charges and it was more preoccupied with mobilisation of its energy towards bringing in economic reforms. The entire political spectrum, including Ruling and Opposition Party leaders, came under teeth of prosecution. Judiciary acted with retrieved might and asserted its supremacy and primacy in the matter of appointment of Judges. The Second Judges Case, Supreme Court Advocates-on-Record Association v. Union of India, was decided in 6.10.93 inthe backdrop of these volatile political situation.

The political spectrum again emaciated by further revelations of corruption. The J.M.M. Bribery case came as thunder bolt to P.V. Narasimha Rao. C.B.I. questioned Narasimha Rao on 4.9.96 and he was charge sheeted. On 16.1.96, the Supreme Court ordered to set up Special Hawala Court to try the hawala offenders. When the entire political pantheon was in the labyrinth of further controversies and corruption charges, the Supreme Court evolved the ‘Collegium System’ of appointment of Judges in In Re Special Reference on 28.10.98. The Judiciary usurped the power of appointment completely to the exclusion of Executive. The political ambience was conducive for the Judiciary as the period was marked by political instability with country going for snap polls, one after the other. A fragmented mandate made the Executive too weak to be trampled up on by Judiciary. The role of the Executive was reduced to a ritualistic giving of stamp of approval.

With the Judiciary assuming role of appointment, the indirect deference to the Will of the People slowly waned. Widespread complaints of nepotism, systematic exclusion, emergence of hereditary rights to appointment and, adding woes, plummeting deterioration in the quality of adjudication were the tangible results of Collegium System. A larger section of the Bar felt alienation in appointment process, where scions from incumbent or retired Judges were found as favoured lot. Judgments which were rendered by Judges who imbibed constitutional and political philosophy of the Nation during pre-collegium era were atop on its perspectives. The post-collegium era is predominantly marked by ‘perception driven judgments’. No legal classics like, A.K. Gopalan Case, Kesavanandan Bharathi Case, Maneka Gandhi Case or Indra Sawhney Case (Mandal case) and the like sprang up in post-collegium era. The remedy proved worse than the disease.

By the beginning of this decade, there emerged unanimity and broad consensus among political parties for contriving a mechanism, where there is greater or equal say for Executive in the matter of appointment of Judges of Constitutional Courts. The system prevailing in developed democracies are pointer to a greater participation of polity and civil society in the appointment of Judges of Constitutional Courts. In the USA, the Judges are appointed under Article III of its Constitution to the Supreme Court, Federal Courts and District Courts by the President with approval of Senate. Apart from impeachment, there is another mechanism for removal of the Judge by issuance of a writ of Scire facias for not maintaining “good behaviour”. In the U.K., from 2006, the appointment of Judges is made by a 15 member Judicial Appointment Commission. In the 15 member Commission, only five Judges are from the higher judiciary.

2 members are from Subordinate Judiciary and Tribunal. The remaining 8 members are from the Civil Society and Government. Australia makes another example for participatory and consultative process in the appointment of Judges where appointments are made by Governor General-in-Council. All these systems ensure transparent appointment process where nominations are made, objections are called for and fool proof comparative assessment of merits is done in full glare of public attention. In India, now, the Constitution 121st Amendment provides for Constitution of N.J.A.C. (National Judicial Appointment Commission) to replace the Collegium System of Appointment. National Judicial Commission Act has come into force on 13.4.2015 with the Notification of Commencement. Now the vires of the Constitution Amendment and the N.J.A.C. Act are under challenge before the Apex Court.

The passing of Constitution Amendment and the N.J.A.C. Act shows the reassertion of Executive of its supremacy. The Bills were passed with a near unanimity. The instantaneous and hassle-free ratification of Constitution Amendment by almost all State Legislatures is indicative of the expression of Will of the People across the country. Unlike other Constitution Amendments, 121st Amendment required ratification by not less than 50% of the State Legislatures under Proviso to Article 368(2) of the Constitution of India. The perceived import of the saidexercise is quintessentially the expression of collective Will of the People of India, who have given unto themselves this Constitution. The People of India, in unison, demand for a change in the system of Appointment of Judges with its greater participation in the Appointment Process. People of India clamour for systemic change in the Appointment process with the desire to keep pace with the more participatory system prevailing in the civilised countries. How far the “basic structure” sword can be brandished by the Supreme Court to cut at the root of the Will of People of India? The emergence of Single Party Rule and iconographic leaders on the political spectrum will spell doom for the Judiciary in setting at naught the NJAC. Apropos to note that ‘basic structure theory’ was evolved in cases for testing vires of Constitution Amendments which were passed with notable divisions. Amendment providing for NJAC is essentially and virtually a re-enactment of the Constituent Assembly sitting again for introducing what was originally lacking in the Constitution. Adoption by Parliament and all State Legislatures by unanimity is in reality assertion by the Will of the People, who have given unto themselves their Constitution. Expression of collective Will of the People is so sacrosanct in a democracy and it cannot be lightly shattered down by coining new legal jargons or philosophies.

\oXn]oT¯nsâ ImcpWyhÀjw

(ByAUzt¡äv H. lmcokv, Imbw-Ipfw)

kaql¯n A¨S¡hpw {Iakam[m\hpw sI«pd¸pw DImIp¶Xn\v \nbaw BhiyamWv. a\pjyÀ¡v kam[m\t¯msS Ignbp¶Xn\mWv \nba§Ä \nÀ½n¡p¶Xv. kmaqlnI PohnX¯nsâ DuSpw ]mhpamWv \nba§Ä. \nba¯n\v ap¶n FÃmhcpw ka³amcmsW¶v ]dbmdpIv. \oXn tXSnbpÅ am\hsâ ssP{Xbm{Xbv¡v a\pjyhwi¯nsâ A{XXs¶ ]g¡apIv. \oXnam³amcmb cmPm¡³amÀ Ncn{X¯n btim[hmeyw cNn¨hcmWv. Ncn{Xw BhÀ¯n¡pt¼mÄ C¯cw Hfna§m¯ HmÀ½IÄ \½sf NnesXms¡ DWÀ¯p¶p. A¯c¯n Gähpw {it²b§fmb \oXn]oT¯nsâ cIv hyXykvX ImcpWyhÀj IY kao]Ime¯v \ap¡v A\p`hnt¡Inh¶p.

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AXnÀ¯nIm¡pw amaeIÄ t]mse Dbc¯n sI«nInS¡p¶ tIkpsI«pIfpsS Iq¼mcw Ipdbv¡p¶Xn\mbn IsI¯nb \ho\ amÀ¤amWv AZme¯pIÄ. X§fptSXÃm¯ ImcW§ÄsImIv tIkpsI«nsâ NcSn\I¯v AIs¸« At\Imbncw a\pjyÀ \ap¡nSbn hkn¡p¶p. AsXm¶gns¨Sp¡m³ AXnsâ ]nSnsbm¶v hnSphn¡m³ Xsâ BbpÊpw BtcmKyhpw k¼¯pw IjvS¸mSpw hn\ntbmKnt¡In hcp¶ lX`mKyÀ  kaql¯n [mcmfapIv. A¯c¯n AIs¸«hsc ]Zhn ad¶v ImcpWy¯nsâ tX³agsNmcnª cIv thdn« \ymbm[n]³amcpsS kvt\tlm³apJamb hnkvXmcamWv XpSsc tImdnbnSp¶Xv. kvt\lapJapÅ Hcp \oXnIY F¶ t]cn ]pd¯ph¶ hSIcbnse Hcp \ymbm[n]³ s]mXpkaql¯n\v Im«nsImSp¯ amXrI \oXn]oT¯nsâ biÊv hÀ²n¸n¡p¶Xmbncp¶p. Xq¡pIbdpw PbnÂin£bpw ]ngbpw am{Xw hn[nsbgpXp¶ Ic§fn \n¶v kvt\l¯nsâbpw ImcpWy¯nsâbpw kzm´\¯nsâbpw Xmcm«v tI«t¸mÄ \oXn]oT§Ä¡v am{Xaà s]mXpa\Ênepw IpfnÀag s]bvXp.

Hcp ]mhs¸« a\pjy³ _m¦n \n¶pw hmbv]sbSp¯v IS¯n ap§n hmbv] XpI Xncn¨S¡m³ \nhr¯nbnÃmsX h¶t¸mÄ P]vXnIbÀ Igp¯n apdpIn izmkw ap«nb B a\pjy\v s\SphoÀ¸nSm³ thIn Xsâ i¼f¯n \n¶pw ]Xn\¿mbncw cq] \ÂIn Hcp IpSpw_s¯  c£s¸Sp¯nb hSIc ap³kn^v tImSXnbnse Achnµv kn. CSbmSn F¶ \ymbm[n]\v ta ImcpWy tIcf¯nsâ kvt\lm{iphÀjw s]menªp. hSIc eoK kÀÆokkv AtXmcnänbpsS B`napJy¯n \S¯nb AZme¯n hfbw Npgen \¼ymÀIp¶pta Ipamcsâ tIknemWv Cu a\pjysâ th]Yp \ngen¨ PohnXw \ymbm[n]³ IIXv. 2008 Ipamc³ Im\d_m¦n ]md¡Shv imJbn \n¶pw hmbv]bmbn FSp¯ Ccp]¯¿mbncw cq] ]enibS¡w ap¸¯¿mbnc¯n Fgp¶qän A¼Xv cq]bmbn hÀ²n¡pIbpw _m¦v Ipamcs\Xnsc tIkv ^b sN¿pIbpw sNbvXp. hn[n ssh]cnXy¯n PohnXt¢iw t\cnSpIbpw A]IS¯nÂs¸«pImb km¼¯nI ]cm[o\Xbpw ImcWw hmbv] XpI Xncn¨S¡m³ Ipamc\v IgnªnÃ. XpSÀ¶v _m¦v P]vXnbS¡w \nba\S]Sn kzoIcn¨p.

XpI Xncn¨S¡m³ IgnbmsX hn§ns¸m«nb Ipamcsâ \nÊlmbhØ a\Ênem¡nb Cu \ymbm[n]³ _m¦v DtZymKسamcpambn kwkmcn¨v tIkv H¯pXoÀ¸m¡n HSpt¡Ip¶ _m¡n XpI Ipamc\pthIn \ymbm[n]³ kz´w t]m¡än \n¶pw \ÂInbmWv amXrI Im«nbXv. Ipamcsâ s\©nse XobW¡m³ Ignsª¶ NmcpXmÀ°y¯n kvt\lkv]Àinbmb \ymbm[n]³ Xm³ sNbvXXv shdpsamcp \nÊmcImcyambn IcpXn ASp¯ tIkpsI«nse NcSv Agn¡pIbmbncp¶p.

GXm\pw Znhk§Ä¡v ap¼v asämcp ImcpWyhÀjhpw \oXn]oT¯n \n¶v \ap¡v A\p`hnt¡In h¶p. AXv IpS¸\IfpsS \mSmb ]me¡mSv \n¶mbncp¶p. cIv ]XnämIv ap¼v \S¶ hml\m]IS¯n Ggp hbÊpÅ aI³ \jvSs¸«  amXm]nXm¡Ä¡v \jvS]cnlmcXpI \ÂIp¶Xnte¡pImb ImeXmakamWv tamt«mÀ BIvknUâv s¢bnwkv ss{S_qW PUvPn  Xsâ i¼f¯n \n¶pw Hcpe£w cq] \ÂIn amXrI Im«nbXv. ]cmXn¡mc\v \oXn\ymb kwhn[m\¯nepÅ hnizmkw \jvSs¸SmXncn¡m\mWv Xm³ amXrI Im«nbsX¶v PUvPn ]dbp¶p.

1993 sabv 10 \v ]pXp¸cnbmc¯v DImb hml\m]IS¯n hm¡n ]d¼n kpµcsâ aI³ acn¨ tIkn \jvS]cnlmcw Bhiys¸«v \ÂInb lÀPn 1996  G{]n 16\v hn[nbmbn. hn[n XpIbn \n¶v Ccp]¯¿mbncw cq] BZyL«¯n lÀPn¡mc\v e`n¨ncp¶p. _m¡nXpIbpw ]enibpw C³jpd³kv I¼\n tImSXnbn sI«nsh¨p. Cu XpI kpµcsâbpw `mcybpsSbpw t]cn \nt£]n¡phm³ tImSXn D¯chnSpIbpw sNbvXp. F¶m tImSXn Poh\¡mÀ XpI kpµc\v ]Icw sImÃwtImSv s\³ta\n kztZinbmb cmaIrjvW³ F¶ Bfnsâ t]cnepÅ A¡uInemWv _m¦n \nt£]n¨Xv. tImSXn Poh\¡mÀ¡v kw`hn¨ ]niImWv A¡uIv \¼À amdn XpI \nt£]n¡m³ ImcWw. ]n¶oSv Hcp hml\m]IS¯n cmaIrjvW³ acWaSbpIbpw sNbvXp.

X§Ä¡v \jvS]cnlmcXpI e`n¨n«nsöv ImWn¨v ]cmXnbpambn kpµc\pw IpSpw_hpw tImSXnsb kao]n¨p. XpSÀ¶v \S¯nb At\zjW¯nemWv XpI cmaIrjvW³ ]n³hen¨Xmbn _m¦ptcJIfn IsI¯nbXv. C¡mcyw NqIn¡m«n taÂtImSXnbn kpµc³ A¸o lÀPn t_m[n¸ns¨¦nepw AXv XÅpIbmbncp¶p. HSphn sslt¡mSXnsb kao]n¨ kpµct\mSv IngvtImSXnbn dnhyplÀPn t_m[n¸n¡m\mWv D¯chpImbXv. Cu tIknsâ hmZw tI« PUvPn at\mlÀ InWn lÀPn¡mcsâ Bhiyw A\phZn¡m\mhnsöv IsI¯nsb¦nepw lÀPn¡mc\v \oXn e`n¡Wsa¦n am\pjnI ]cnKW\ \ÂIWsa¶v IImWv \ymbm[n]sâ ImcpWylkvXw kpµc\pw IpSpw_¯ntebv¡pw \o«nbXv. hn[n¡v D¯cw \ÂIphm³ Bcpansöv t_m[ys¸« PUvPn lÀPn¡mc\v \oXn e`n¡m³ Xsâ kz´w JP\mhv Xpdt¡In h¶p. Ft¶m hn[n¨ \jvS]cnlmcXpI tImSXn Poh\¡mcpsS ssI¸ng aqew A\p`hn¡m³ e`n¡m¯Xv  ImcWw \oXn \ntj[n¡s¸ScpsX¶v IcpXnbmWv \ymbm[n]sâ \S]Sn. \oXnbpsS Bizmkw kpµc\pw IpSpw_¯n\pw {]Xo£n¡m¯ Hc\p`hambn amdn. C\nbpw C¯cw Ddhhäm¯  ImcpWyhÀj¯n\mbn \ap¡v Im¯ncn¡mw.

Compounded Case, Harmless Accused And Witnesses,

but a Headache to Courts

(By K. Sankaran Nampoothiri, Advocate, Harippad)

With the introduction and effective implementation of The Legal Services Authorities Act 1987, in Kerala, it has become the order of the day for all the courts especially lower criminal courts to refer cases which are compoundable to Lok Adalat for its settlement and disposal. Compoundable offences can be settled or compounded either in courts or in Lok Adalats as per Section 320 of Cr. P.C. and Sections 19 clause 5 and 20 of The Legal Services Authorities Act. Wherever be the forum of settlement for disposal, it is inevitable to hear both the parties, i.e. the victim and the accused. Be it before the court under Section 320 of Cr. P.C. or before the Lok Adalats under Section 20 of The Legal Service Authorities Act, the court or the Adalat has to be guided by the principles of justice, equity, fair play and other legal principles, i.e. theexpedition to compromise or settlement of cases should not be at the cost of justice.

But if a case involves offence under Section 379 of IPC, where the value of the property does not exceed Rs.250/-, generally, as per section 320(2) of Cr. P.C. the court can give permission to compromise the case.

But in the following circumstance, the above offence cannot be allowed to be compounded either before the court or before the Lok Adalats.

As per Section 379 of IPC, whoever commits theft shall be punished. But theft as defined under Section 378 of IPC stands as: "whoever, intending to take dishonestly any movable property out of the possession of any person without the person's consent, moves that property in order to such taking is said to commit theft."

So from the above definition, it is clear that if a person dishonestly moves a movable property, irrespective of whether he is the owner or stranger, from the possession of another person who is in possession of it, the offence under section 379 of IPC will attract. In strict sense of the definition of theft as per section 378 of IPC, even if the property is moved by the owner from the possession of another person, to whom the possession was validly given, without his consent the offence will stand i.e., the offence will stand even against the owner of the property.

For compounding the offence in the above circumstance, the court has to resort to section 320(2) of Cr. P.C. But 320 (2) of Cr. P.C. states as: "the offence punishable under the sections of the IPC specified in the first two columns of the table next following may, with the permission of the court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the 3rd column of that table.

As per the first two columns of the above section, theft, where the value of the property does not exceed Rs.250/-, under section 379 of IPC can be compounded. But in the 3rd column of the above mentioned table it is stated that "the owner of the property stolen" can compound the offence.

So in the above mentioned circumstances, if the court permits to compound the offence, the owner of the property, who is accused of the offence, himself can compound it sans the victim i.e. the possessor. The victim of the offence will have no role to play, but he is being made a mute spectator. The accused can compound the offence against himself.

In turn, even if the victim expresses his willingness to compound the offence, as the court has no power to do anything in strict derogation of a crystal clear provision in the 3rd column of the table mentioned in Section 320(2) of Cr. P.C, the court has no other way but to follow the tedious and time consuming task of evidence taking.

The Court can be saved from the above dilemma only by addition ofwords "or possessor" after the word 'owner' in the column 3rd of the table in section 320(2) of Cr. P.C. through an amendment of the code.

UNIFORM CIVIL CODE - STILL A DEAD LETTER?

(By Pramod Krishnan, Advocate, Tellicherry)

At present there is a renewed demand for a Uniform Civil Code since the Chief Justice of India V.N. Khare has made his remarks while passing his judgment in the Christian Bequests case (John Vallamattom v. Union of India, 2003 (3) KLT 66 (SC) = AIR 2003 SC 2902).

First of all what is the root of the Uniform Civil Code? The answer is simple. It emanates from our Constitution. Part IV- Art.36 to 51 contains the Directive Principles of State Policy. Art.44 of the Indian Constitution requires the State to secure for the citizens a uniform civil code through out the territory of India. However it is only a directive principle of state policy, therefore it cannot be enforced in a court of law as in the case of fundamental rights enshrined in Part III of our Constitution. So it is the prerogative of the State to introduce Uniform Civil Code.

India has already a Uniform Civil Code-reputedly one of the best in the world. Codification of civil laws means placing all civil laws affecting the relationships between private citizens on statutory basis. India's codification began in the mid-19th century and continues this day. This includes the Contract Act, 1872, the Transfer of Property Act, 1882, the Evidence Act, 1872, The Civil Procedure Code, 1908, the Companies Act, 1956 etc. The codification of Criminal Law included the Indian Penal Code, 1860 and the Criminal Procedure Code, 1898 (now 1973).

So the controversy is really about uniform personal laws. At present the Hindus, Muslims, Christians etc. in India are governed by their respective personal laws. Whether this has to be codified is the crux of the present controversy.

Even during the debate in the Constituent Assembly there was a wide spread opposition to the incorporation of Art.44 (Art.35 in the Draft Constitution) particularly from the Muslim members of the Assembly (CAD (Constituent Assembly Debates) Book No. 2 Volume III pp. 538,552). Naziruddin Ahmed, Mohd. Ismail Sahib, Pocker Sahib Bahadur and Hussain Sahib etc, made a scathing attack on the idea of having a Uniform Civil Code in India on the grounds that the right to follow personal law is part of the way of life of those people who are following such laws, that is part of their religion and part of their culture, that would lead to a considerable amount of misunderstanding and resentment amongst the various sections of the country and that a country so diverse it is not possible to have uniformity of civil law. However, one of the most illustrious members in the Assembly, K.M. Munshi strongly felt that if the personal law of inheritance, succession etc. is considered as part of the religion, the equality of women can never be achieved (CAD Vol. Ill p. 548).

The Chairman of the Drafting Committee Dr. B.R. Ambedkar stated that in our country there is practically a civil code, uniform in its content and applicable to the whole country. He cited many instances like uniform civil law, transfer of property and Negotiable Instruments Act, which are applicable to one and all. However he conceded that the only province, the civil law has not been able to invade so far is marriage and succession. He also dispelled the arguments of certain Muslim members that die Muslim law is immutable and uniform throughout India. He cited the example of the North-west Frontier province, which was not subject to the Shariat law prior to 1935 and until then followed the Hindu law in the matter of succession etc. (CAD Vol. Ill p. 550). Similarly in the North Malabar region of Kerala, the Marumakkatayam law applied to all, not only to Hindus but also to Muslims. Until 1937, in the rest of India, the various parts, such as the united provinces, the central provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law of Succession.

Some of the learned members however predicted that a stage would come when the civil code would be uniform and stated that the power given to the State to make the civil code uniform is in advance of the time (CAD Vol. VIII p. 542). Dr. Ambedkar also opined that it is perfectly possible that the future Parliament may make a provision by way of making a beginning that the code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage, the application of the code may be purely voluntary (CAD Vol. VII p. 551). The foregoing discussion clearly establishes that the framers of the constitution were aware of the gender injustice and sexual inequality of women and they incorporated Art.44 of the Constitution hoping that it would be introduced in the future at the appropriate time. It is clearly unfortunate that even after 56 years of independence, the State did not find it necessary to make any efforts to honour this constitutional commitment.

Now coming to the question whether Part III of the Constitution (Fundamental right) applies to personal laws, Gajendragadkar J. observed in State of Bombay v. Narasu Appa Mali (AIR 1952 Bombay 84) as follows:- "The Constitution of India itself recognizes the existence of these personal laws in terms when it deals with the topic falling under personal law in item 5 in the concurrent list-List III. This item deals with the topics of marriage and divorce; infants and minors; adoption; will, intestacy and succession; joint family and partition; all matters in respect of which parties injudicial proceedings were immediately before the commencement of this constitution subject to their personal law. Thus it is competent either to the State or the Union Legislature to legislate on topics falling within the purview of the personal law and yet the expression "personal law" is not used in Art. 13, because, in my opinion the framers of the constitution wanted to leave the personal laws outside the ambit of Part III of the Constitution. They must have been aware that these personal laws needed to be reformed in many material particulars and in fact they wanted to abolish these different personal laws and to evolve one common code. Yet they did not wish that the provisions of the personal laws should be challenged by reason of the fundamental rights guaranteed in Part III of the Constitution and so they did not intend to include these personal laws within the definition of the expression "laws in force". So according to the learned Judge personal laws were outside the ambit of Part III of the Constitution.

The judiciary in India has taken note of the injustice done to the women in the matters of many personal laws. It has been voicing its concern through few judgments, indicating the necessity to have uniformity in personal matters of all the citizens. The Supreme Court in its landmark judgment in Mohd. Ahmed Khan v. Shah Bano Begum (A.I.R 1985 SC 945), pertaining to the liability of a Muslim husband to maintain his divorced wife beyond "iddat" period, who is not able to maintain herself, held that Section 125 of the Code of Criminal Procedure which imposes such a obligation on all husbands in secular in character and is applicable to all religions. The Chief Justice Y.V. Chandrachud held:

"It is also a matter of regret that Art.44 of our Constitution has remained a dead letter......There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a Uniform Civil Code for the citizens of the country and unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. "The court has also in para 33 of the above judgment referred to Dr. Tahir Mahamood's book 'Muslim Personal Law' in which the author had made a powerful plea for framing a Uniform Civil Code for all citizens of India. It may be recalled that the Shah Bano 's case paved the way for introducing "The Muslim Women (Protection of Rights on Divorce) Act, 1986.

In Sarala Mudgal v. Union of India (AIR 1995 SC 1531) Kuldip Singh, J. held-" the respective personal laws permitted by the British to govern the matters relating to inheritance, marriages etc. only under the regulations of 1781 framed by Warren Hastings. The legislation - not the religion - being the authority under which personal law was permitted to operate and is continuing to operate, the same may be superceded/supplemented by introducing, a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India. The successive governments till date have been wholly remiss in their duty of implementing the constitutional mandate under Art.44." Therefore the Supreme Court requested the Government of India, through the Prime Minister of the country to have a fresh look at Art.44 of the Constitution of India and "endeavour to secure for the citizens a Uniform civil code through out the territory of India".

The Supreme Court went a step backward in its earlier stand in Lily Thomas v. Union of India (AIR 2000 SC 1650) wherein a Division Bench of the Supreme Court held that the court had not issued any direction for codification of common civil code in Sarla Mudgal v. Union of India. The court referred to judgment in Ahmedabad Women Action Group v. Union of India (AIR 1997 SC 3614) where it was held that the observation made by the Judges in the Sarla Mudgal case pertaining to the desirability of enacting the uniform civil code were made only incidentally.

But the Apex Court has once again clarified its stand on Art.44 in John Vallamattom v. Union of India (2003 (3) KLT 66 (SC) = AIR 2003 SC 2902), wherein the court held that it is a matter of regret that Article 44 of the Constitution has not given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies. A few words in the said decision rendered by Chief Justice V.N. Khare is quoted here "Art.44 provides that the State shall endeavour to secure for the citizens a Uniform Civil Code through out the territory of India. The aforesaid provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society. Art.25 of the Constitution confers freedom of conscience and free profession, practice and propagation of religion. The aforesaid two provisions viz. Arts.25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Arts.25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Arts.25 and 26 is a suspect legislation". The other two Judges of the bench, Justice S.B. Sinha and Justice AR. Lakshmanan also agreed with the Chief Justice.

Right from Champakam Dorairajan decided in 1951 till the latest John Vallamattom's case in 2003 the Supreme Court has been interpreting the Directive Principles in their widest sense so as to make them judicially enforceable. The judiciary has by and large served as an agent of positive change in this regard.

There is a misunderstanding and misconception in the minds of intellectuals and the general members of minority groups particularly the Muslims that the Uniform Civil Code is forcing the Hindu personal law on other religions. It is a wrong notion. The best contents from the personal laws of each religions, viz- Hinduism, Christianity, Islam etc. will have to be taken when a draft Uniform Civil Code is drawn up. Contentious issues like succession, marriage, divorce, custody of children etc. will have to be sorted out after discussion with every community in the country. It will be more easier if the draft is accepted by all religious denominations in India before it is made a law in the Parliament.

Looking back to 1955-56 when the Hindu Code was promulgated in the Parliament, there was wide spread opposition from the Hindu fundamentalists who voiced their strong opposition and tried to scuttle the Bill. Even the then President Dr. Rajendra Prasad disagreed with the Prime Minister Jawaharlal Nehru with the Hindu Code. Nehru displayed great political will in passing the Hindu Code in Parliament. At that time there was polygamy amongst Hindus. There were even retrograde practices like Sati and many other customary practices that were opposed to good conscience, equity and thereby affecting gender justice. Hence the passing of the Hindu Code is a case in point in achieving to a great extent if not fully in advancing gender justice, departing from fundamentalists religious practices.

Of the primary sources of law, the most important and effective source is the legislation i.e., the law made by the legislature generally. Therefore so long as the State does not make the necessary legislation to implement the directive principles, the implementation of which is possible at this juncture due to the all-round development of the country, mere positive interpretation by the judiciary would not be sufficient to enforce them. The directive principles were never meant to remain as such in perpetuity. The mandate of the Constitution is that they must be implemented as and when the time is ripe politically, economically and socially.

It is long overdue for a legislation to be enacted in the Parliament considering the question of gender equality. So Parliament should consider this matter seriously and take necessary steps to implement the directions given by the Supreme Court of India in John Vallamattom's Case by framing a Uniform Civil Code in the country so that gender justice can be achieved.

_________________________________________________________________________

[Para 5 to 7 excerpts from the book Judicial Activisim in India, 1 st Edition by Dr. G.B. Reddy, Gogia Law Agency (Hyderabad).

A SECOND WIFE IS ENTITLED TO MAINTENANCE OR NOT ?

(By Anzil Zachariah, Advocate, Pathanamthitta)

A woman gives herself to the man and takes the family life of the man. The man uses her as such. Thereafter he turns her out and pronounces that marriage is void After divorce or separation she becomes a destitute. The pertinent question here is can the husband be allowed to raise the contention of denial of a valid marriage when the second wife claims maintenance.

The aim of this paper is to analyze the present scenario and exhibit through the case laws the approach of the courts regarding maintenance provision. It is argued, in the course of the paper that a more functional and practical approach, would be a definite improvement to meet the ends of justice for neglected wives.

Ss.125 to 128 of the Code of Criminal Procedure constitute a complete Code in itself. It deals with adjudication as regards the liability to pay monthly allowance to the neglected wife and child. It also includes execution of order and the mode of execution.

S.125 of Code is "a measure of social justice “1. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife2. Neglect to maintain a wife or a child has not been made as an offence under these proceedings3. It's a law...

"...to compel a man to perform the moral obligation which he owes to society in respect of his wife and children, by providing a simple, speedy but limited relief. They seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence4."

A woman has two distinct rights for maintenance. S.125 of Cr. P.C. mentions only maintenance to a legally wedded wife unless she suffers from any of the disabilities indicated in S.25(4) of Cr. P.C. In another capacity, namely as a divorced wife, she is entitled to claim maintenance from the person of whom she was once the wife5.

The woman not having the legal status of a wife is brought within the inclusive definition of the term 'wife'. According to Explanation 'wife' "includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried". It is consistent with the objective. However, the second wife is disentitled from receiving maintenance from her husband as personal laws declare second marriage to be null and void. Marriage between the parties plays an integral part in deciding the question of maintenance. The right of a wife to maintenance is based upon the existence of the marital relations.

The personal laws applicable to the party determine the status of a wife. S.11 of the Hindu Marriage Act declares such a marriage to be illegal in the following terms:-

S.ll. Void marriages - "Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of S.5."

Clause (l)(i) of S.5 lays down, for a lawful marriage, the necessary condition that "neither party has a spouse living at the time of the marriage."

A marriage in contravention of this condition is null and void from its very inception. It is to be ignored as not existing in law. Hence a second wife is not entitled to maintenance under this provision, as she is not a legally wedded wife 6.

The sad reality is that the husbands negative the claim of the neglected wife. The husband argues and depicts her as a kept-mistress on the specious plea that he was already married. The 'Summit Court' of India affirmed those contentions in a number of cases.

First and foremost contention is that the terms- 'wife' or 'widow' in the context of marriage, maintenance etc.. is of restrictive legal character.It implies only legitimate relationships recognized by a legal mode of marriage. It does not include a relationship that is not recognized by law. Therefore the definition of wife cannot be stretched to include an abandoned mistress.

In Khemchand Om Prakash Shanna v. State of Gujarat & Anr7the Supreme Court held that the "during the subsistence of the first marriage, any second marriage is null and void" and High Court erred in granting maintenance in favour of second wife. Here applicant's first wife was alive. There has been no annulment of marriage by a decree of divorce or otherwise.

The Court held in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav8case that marriage of a woman in accordance with Hindu rites with the man having a living spouse is complete nullity in the eye of law and she is not entitled the benefit of S.125 of the Code.

In Santosh (Smt) v. Naresh Pal9 the Supreme Court declared that "unless there is a legal marriage between the parties, order under S.125 Cr. P.C. cannot be passed."

In Vimla (K) v. Veeraswamy (K)10, the husband contended that the second marriage with the applicant-wife was void on the ground that her first marriage was subsisting. The Apex Court stated that-

"The law which disentitles the second wife from receiving maintenance from her husband for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage..."

The term 'wife' in S.125 of the Code should be given a wider and extended meaning. It must include therein not only a lawfully wedded wife but also a woman married or lived together for a considerable time as wife. If a husband had married a woman without disclosing the existence of the first wife the marriage held in between both husband and wife is treated bad as per law. The media reports remind us of husbands marrying more than once for dowry etc. If the goddess of justice closes its eye, the destitute wives are deserted both by their husband as well as law. The maintenance is deprived for no reasons of her and for no wrong on her part. In such cases the marriage could only be treated as valid marriage, as the fact of the subsistence of first marriage had been suppressed11.

Such incidents do happen. The Explanation to sub-s.(3) of S.125 clearly foresees such incidents. The said explanation reads as follows: -

"If a husband has contracted marriage with another woman or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him. "

The dichotomy between "has contracted marriage with another wife" and "keeps mistress" is obvious. The verb 'keep' is used in present tense. In phrase contracting of marriage is concerned, the verb is present perfect- "has contracted". From this it is clear that the marriage might have been contracted at any time. It will refer to the first as well as the second marriage. It cannot be said that the just ground of a husband contracting marriage with another wife is only available to the first wife and not to second wife on the ground that the proviso is not made for the benefit of the second wife. The wife, second or third, must be entitled to grant of maintenance for her survival and sustenance in view of the prima facie finding of fact that the relation between a male and female are that of a husband and wife.

The Orissa High Court laid down that intricacies of the law are not required to be gone into and where the man and woman lived together as husband and wife and treated as such by the community and the man treated the woman as his wife, marriage between them has to be inferred for thelimited purpose of S. 125 of the Code12 Here both parties were scheduled tribes (Kandha community).

In Kumari Bai v. Anandram, the Madhya Pradesh High Court granted maintenance13 where the non-applicant married applicant wife (both Gond tribes) according to Chun custom but not by regular marriage and was kept her as Rakhel (keep). Both were married before too.

It is admitted that the provisions of Hindu Marriage Act do not apply to Scheduled Tribes as per Section 2(2) of the Act. -

"... nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Art.366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs."

The situation is grave in circumstances where maintenance is denied to an illiterate and unemployed woman. Being an illiterate and unemployed wife there exist no means for survival. She is liable to get an award of maintenance from the defaulting husband who played fraud to her. A husband who is healthy and able-bodied is held to have means to support his wife and children14. He escapes from his misdeeds by resorting to the contention that she is only his concubine or keep and not his legally wedded wife.

Secondly, it is argued that that the second marriage, though valid under customary traditions, is against public policy.It is admitted that no custom is valid if it is opposed to morality or public policy. Public policy is always against polyandry and polygamy. Monogamy as a valid marriage system is preferred in all legal systems including India. The intention of the legislation can be discerned from the enactment of S.494 of I.P.C.

Under Shastrik Hindu law polygamy is not strictly prohibited. In various communities under customs it continues. Divorces are common. They are governed by their personal customs. Marriage relationship under those customs in the communities is not sacrosanct.

It is hard to digest that maintenance be denied to a destitute wife to uphold the so-called morality. The society acts as a super cop of the morality against second wife. The 'living law' to abolish polygamy is not used against recalcitrant men folk. The mighty State is not authorised as our Big Brother to control our emotional and economic lives as in Orwell 1984. The present position of law and State only helps an unscrupulous married man. Dr. Werner F. Menski in his essay titled 'Reluctant Legislative Activism15 mocks at this hypocritical self.

"Almost 50 years down the line, we are forced to realise that Indian courts have been administering and regulating Hindu polygamy and its consequences, rather than punishing Hindu polygamists as criminalsfor having several wives. For polygamy continues to exist...in reality it seems, and not just in Kerala, almost all Indian men are getting away with making polygamous arrangements..."

It is also significant to remember that recognition by the society is not a pre-condition for marital status. Marriage is a personal right of the spouses. They are entitled to live together. After marriage they live together. It is open to the knowledge of the community in which they live. They acquire marital status by such living. In the case of Valsamma Paul v. Cochin University16in which the Hon'ble Supreme Court held as follows-

"The immediate question arises whether recognition of the community is a pre-condition ? ...It is common knowledge that with education or advance of economic status, young men and women marry against the wishes of parents and in many a case consent or recognition would scarcely be given by either or both of the parties or parents of both spouses. Recognition by family or community is not a pre-condition for married status."

Moreover, the order of the court granting maintenance acts as a deterrent weapon upon husbands, marrying during their first marriages and throwing poor women to pavements. Men are reminded of their legal and moral obligations. If not, the law stands in favour of the husband who evades the obligation to maintain the wife and children by raising unreasonable argument that she is only a second wife.

Thirdly, it is argued that the Legislature upholds the legitimacy of the paternity of a child born out of a void marriage and not the second wife.A similar protection as legitimizing paternity of a child of void marriage is not extended in respect of the mother of the child.

In Smt. Yamunabai Anantrao Adhav case it is observed that even in a summary proceeding under Section 125 Cr. P.C, the Court is required to find out whether applicant-wife was lawfully wedded wife or not17. The Court considered the point whether a Hindu woman who has married after coming into force of the Hindu Marriage Act, 1955, with a man having a lawfully wedded wife, can maintain an application for maintenance under S.125 Cr. P.C. The Court confirmed that the Legislature decided to bestow the benefit of S.125 Cr. P.C. even on an illegitimate child by expressed words but none are bound to apply to a de facto wife where the marriage is void ab initio.

The existence of a second or third marriage cannot be declared as illegal or immoral in modern times. Legal pronouncements also hint at it. The Allahabad High Court, while upholding the constitutional right of the citizens as enshrined in Arts.19 and 21 of the Constitution of India in the case of Payal Katara v. Superintendent, Nari Niketan, Kalindri Vthar, Agra & Ors.18held that the petitioner, a lady of about 21 years of age being a major, has right to go anywhere and that anyone- man and woman even without getting married can live together if they wish. If such a right is recognized then maintenance can also be claimed.

The Legislature has to consider the present day circumstances in amending the law. The Code of Criminal Procedure (Amendment) Act, 2001 and the Indian Divorce (Amendment) Act, 2001 are positive signs of legislative activism. Matrimonial laws still need a fresh look. It is obvious from spiraling divorce rates in family courts. The parties now readily choose to opt out of the marriage if they are unhappy. John Milton's essay laughs at matrimonial laws even long time back for interference in personal, emotional lives. The essay19 published in 1643 deplore matrimonial laws that imprisoned the unhappily married in 'a drooping and disconsolate household captivity, without refuge or redemption'. Every law is permitted and designed to sub serve the ends of justice. It always aims at rendering the substantial justice. The litigants look for justice and not injustice. The manner and mode of implementation of this provision makes our courts graveyards for the exploited ones and playgrounds for the offenders.

The court must consider the palpable injustice being suffered by the womenfolk though no fault on their side. It is desirable to remove the hardship by extending the benefit of theprovisions of the section to a dejected and driven away woman who is a second wife so long as she did not remarry and live in adultery.

The Apex Court in a case observed that "the provision under S.I 25 is not to be utilised for defeating the rights conferred by the legislature to the destitute women, children or parents who are victims of social environment20. Here the husband's contention was there's no valid marriage as essential rites were not performed.

In another case- Ramesh Chander Kaushal v. Mrs. Veena Kaushal & Ors.21, the court held that "social justice is not constitutional claptrap but fighting faith that enlivens legislative texts with militant meaning." The scope of S.125 Cr. PC has been exhaustively dealt with Krishna Iyer, J. in the case at paragraph 9 of the judgment thus: -

"This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Art.] 5(3) reinforced by Art.39. We have no doubt those sections of statutes calling for consideration by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out the interpretation but of two alternatives which advances the cause -the cause of the derelicts."

Cultural perceptions of women have led to distorted attitudes about them. The religious orthodox and social patriarchs always undermine them. She and her family are vulnerable to socio-economic pressures. The Supreme Court acknowledged it in Mohd Ahmed Khan v. Shah Bano Begum22"undoubtedly the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so, for reason good, bad or indifferent, indeed for no reasons at all". In Re Amino23Justice D.R. Dhanuka said, "It is impossible to ignore the patent discrimination resulting from some of the provisions of personal laws sought to be enforced in our courts."

It is time to think whether a destitute second wife is entitled to maintenance under the principles of equity, justice and good conscience. The Act provides that certain persons mentioned therein are entitled-to maintenance. There is nothing in the said Act, which provides other person from claiming maintenance and being awarded on principles of justice, equity and good reason. Granting of maintenance allowance is always aimed at preserving the existence of an individual who is not in a position to support her. In Obula Konda Reddy v. Peda Venkata Lakshmana24it was held that S. 18 would include a wife whose marriage is solemnized though the marriage is void. This judgment was widely criticized.

The Court is not a silent spectator. It must sympathetically and imaginatively discover the true purpose and object of the provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences25. It is the duty of the courts to grant and provide benefit of this benevolent law to the destitute of the present day. In Carew and Company v. Union of India26, the Supreme Court declared,

"If the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then, not the court but the legislature is to blame for enacting a damp squib statute."

In short, the law looks at 21st century with the punitive system of 19th century to create a very suppressive and conservative sexual morality. The legislature and legal forces has to respond to changes. They wrongly assume its role as a super cop of the morality. A woman has to be treated with dignity, as she does not play a subsidiary role in the life of a man. She cannot be expected to live like a church mouse in the days of yore. A wife is an epitome of the cementing factor in the domestic life and embodiment of sacrificing synthesis in social fabric. She is a symbol of virtue, an emblem of Olympian calmness and an embodiment of Himalayan poise. This being the position of a wife, it is undesirable to conceive that she must live in distress because she is only a second wife. A complete transformation is required in our jurisprudential thought where the agenda of the judiciary and legislature should be to strengthen civil society and protect legal and human rights.

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Foot Note:

1. U.L. Bhat J. in Balanv. Valsamma, 1986 K.L.T. 1378. (F.B.).

2. Vimala (K) v. Veeraswamy (K), (1991) 2 SCC 375.

3. Ramfool Mina v. Smt. Jagrati, 2001 Cr. L.J. 920.

4. Bhagwan Dutt v. Smt. Kamala Devi, AIR 1975 SC 83 (para. 11).

5. Rohtash Singh v. Ramendri, 2000 Cr.L.J. 1498 (SC).

6. Vimala (K) v. Veeraswamy (K), (1991) 2 SCC 375.

7. (2000)3 SCC 753.

8. 1988 (l) RCR (Crl.)322:l988 (2) SCR 809.

9. (1998) 8 SCC 477:1999 AIR SCW 4700.

10. 1991 (2) SCC 375.

11. Mallika and Anr. v. Kulandai, 2000 Crl. J. 142.

12. Anupama Pradium v. Sultan Pradhan, 1991 Crl. J. 3216 (Orissa) para. 9.

13. Kumari Bai v. Anandram, 1998 CrL. J. 4100. Sreedharan v. Pushpa Bai, 1978 K.LT. 26.

14. Durga Singh Lodhi v. Prembhai, 1990 Cr. L.J. 2065 M.P.H.C.

15. 2004(1) KLT 35.

16. 1996 (1) KLT 169 (SC) = AIR 1996 SC 1011

17. 1988(l) RCR (Crl.)322:1988 (2) SCR 809.

18. http://pib.nic.in/archievs/Ireing/Iyr 220/mar 2002/04032002.

19. Doctrine & Discipline of Divorce.s

20. Dwarika Prasad Satpathy v. Bidyut Prava Dixit, 2000 Cr. L.J. 1.

21. AIR 1978 SC 1807:1979 Cr.L.J.3.

22. AIR 1985 SC 945.

23. AIR 1992 Bom.214.

24. AIR 1976 AP 43.

25. Motor Owners' Insurance Company Limited v. Jadavji Keshavji Modi and Ors. (1981) 4 SCC 660(paras.l4, 15 and l6).

26. 1975 (2) SCC 791.