Art of Advocacy -- A Vanishing Talent

(By S. Gopakumaran Nair, Advocate, Ernakulam)

The art of advocacy is losing its charm and is vanishing gradually. Lawyering has become a mechanical process. The court room dramas are increasingly becoming rare and rare. To be a successful lawyer in the changing times, one may not require the skill of oratory or forensic talent. The change is not because there is dearth of talent in the new generation; but because of dearth of time and patience to groom the talents in the court rooms. Litigation is fastly losing its prestige and romance and court rooms are becoming monotonous and dull.

Litigation in the past was a costly hobby and a pastime activity, quite often to boost up ones own ego and to retain the family prestige. In a land based agrarian society, dominated by rich and resourceful land lords, there was money and leisure for indulging in litigation and it was more or less a fight among equals, motivated by prestige and ego on many an occasion than by necessity or for existence.

But, in the present day, people go to Courts for safeguarding their valuable rights and for their existence, not for alighting their ego. But, sadly, it is when the purpose of litigation became so vital and critical that huge arrears of dockets have piled up, that Courts are suffocating with the backlog of cases and are unable to render speedy justice. This may, in the not too distant future, lead to a situation where people lose faith in Judiciary, not because the lack of integrity or dishonesty of the people manning the same, but because its institutional malfunctioning and consequent denial of speedy and effective justice.

The pressing load on the justice delivery system and the consequential lack of time to deal with cases leisurely with equal emphasis to facts and law, have resulted in a stage where even the superior Courts have become Courts of facts and not of law. Very seldom we see case law and commentaries being cited even in the High Court, especially in the realm of administrative law. The desks in the Court rooms are piled up with case bundles which have even started over flowing to the court verandas. Very few books or law reports are found arranged on the desks. Even if it is found, the invariable presumption is that it is either a loosing case or the advocate concerned is an unreasonable lawyer.

Clients and advocates are standing in the long queue waiting for their turn. In some Courts, the arrears may accumulate disproportionately because of the way of functioning of the presiding officer concerned. Even those officers who are able to cope up with the pressure of work by their systematic and disciplined style of functioning are finding it difficult to touch on the heaps of arrears already accumulated. Others who do not know how to manage their Courts are making their own contribution of the hay stack.

In the final run, although the cases are heard, it takes months together for the verdict to come. In many cases, the points are not noted down nor any hearing notes submitted. In such cases where judgments are rendered after long and undue delay, the arguments become a hollow formality and a farce, where the presentation of the case by an advocate becomes an exercise in futility. Today, probably the most frustrated and cursed citizen in our country is the litigant, barring those lucky who get an interim order in their favour at the admission stage. On the contrary, the most overburdened and exhausted public servant is the judge.

Inspite of all these maladies in the justice delivery system, it is alas that cases are always on increase and the inflow is far greater than the outflow through the judicial ventricle. It is often felt that this is not due to the virtue of our judicial system -- partly it may be so — but mostly because of the corruption, favouritism and other mal-practices in the public administration, leading to all sorts of arbitrary and illegal orders. An all interfering State have spread its tentacle- into almost every moment of the citizen's life under the guise of welfare activities. Although many of these fields are about to be divested and surrendered to the powerful private business, by this time writ jurisdiction has been stretched to the extent that anything and everything having a public nature though carried out by a private agency could be brought under its purview.

Therefore, inspite of their bitter experiences, the people are left with no other alternative but to invoke the extraordinary jurisdiction under Art. 226 of the Constitution. Thus there is not much for the Judiciary to claim about, than the executive to be blamed. Because of the unforeseen and many a times unjustified interference of the higher Judiciary in public administration, the Executive many attempt to create all stumbling blocks in the smooth progress and development of the Judiciary or are showing an indifference towards their demands for development. Thus the cart is at the starting point though the bullocks are being changed every now and then.

The one institution the above frustration has affected most is the Bar. Litigants are individuals whose heartburns may vanish sooner or later. Judges may come and go with their fixed tenure whether they dispose of cases or not. But, the organized profession of advocates, which has produced great orators and debators of par excellence in the past generation, is standing on a cross road of history and social development, losing the opportunities to develop their faculties in the rat race for justice, compelled by the laws delay and mounting arrears. If things go at this rate, one may doubt whether the Profession can create in future any legendary figures and proudly claim their heritage as we have many now.

Solutions are many. Most important is creation of additional courts and appointment of sufficient number of Judges — competent and meritorious. Not only subordinate Judges, High Court Judges should also undergo compulsory orientation training, Judges must be taught the art and style of Court management, time management, the method of cutting short after a reasonable opportunity without hurting the counsel, building judicial confidence and judicial restraint, avoiding lose and intemperate talk from the Bench and above all, the art of dictating brief, crisp and short judgments with the essential facts, reasoning and law, if necessary. Quite often, it is seen that even in unopposed bail applications or in not seriously opposed matters, detailed orders are passed narrating the entire facts of the case. This lack of clarity in mind should be erased by training.

The narration of facts, clarity, reasoning and length of judgments should depend upon the categorization of cases as unopposed, opposed, not seriously opposed and possible of being taken up in appeal. Another drawback seen quite often is indecisiveness. The Judge concerned is unable to fix up his mind either this way or that way and his judicial mind will be swinging like a pendulum. This is equally harmful. One must be able to decide, either way, whether it is right or wrong, to the best of his ability and conscience and leave it there. Therefore, equipping the Judge is more important than equipping the Court, for, a good justice can manage the show somewhat well even with an ill equipped Court. But a confused Judge can only preside over the confusion and congestion howsoever equipped the Court may be. The only way of getting up of this dilemma is to do homework, keeping the mind open to listen the counsel without predilections or prejudices. Once the quality of the Bench is improved that will certainly result in the enhancement of the quality of the Bar and the art of advocacy can make an effective come back as the most powerful art of defending the life, liberty and property of the citizens.

RETROSPECT

We bid adieu, the year 2004, to welcome the New Year, 2005. The New Year, 2005, bells and the bell rings with wishes of glory and happiness to all, loudly echoing sounds of peace, progress and prosperity throughout the world. To all our subscribers the Bar and the Bench, advertisers, friends and business dealers, we express our heart felt greetings and good wishes for a happy and prosperous New Year 2005, when we are entering our 56th year of Publication.

From 1949, when our Founder Editor, Late Shri M.C. Mathew started this Journal uptill now, long 55 years, have gone by and it is 17 years now, since M.C. Mathew left this world for heavenly abode. We pay our humble homage to him, and record our deep sense of gratitude and reverence to this noble soul.

In 1988 we installed a Desk Top Publishing System, (the First Law Journal to do it) which appreciably changed the old printing method and the quality and contents have changed much. Computerization helped us to improve our work, thereby ensuring even further accuracy and reliability in Data Entry, Mailing and Accounting.

On February 25th 2004, Hon'ble Mr. Justice M. Ramachandran inaugurated our website www.keralalawtimes.com (the First Law Journal in Kerala to do it) which site has been visited by legal luminaries throughout the World. Due to daily updating of this website, all information and details about Supreme Court, Kerala High Court, Lower Judiciary in Kerala, various Courts and Tribunals, Law Ministry, Law Colleges and the latest Judgments to be published in KLT are given. The legal fraternity throughout India and from foreign countries were kind enough to visit our website, and their valuable suggestions and advices, helped us to make it more self reliant and act as a guide.

Now as a New Year Gift we are presenting to the legal fraternity the Back Volumes of Kerala Law Times from 1949 to 2004 (55 years) in CD. ROM Form. Due to the scarcity of KLT Back Volumes the new generation lawyers, Law Offices and Courts were unable to get a complete set of KLT back volumes, and the present rate quoted for it was reaching astronomical figures.

In this age of technological up gradations occurring every day, with the use of a personal computer and this CD. ROM you are acquiring full back volumes of KLT from 1949 to 2004. Thus you save a lot on office space, Book shelves, Book Binding charges and regular dusting, clearing and normal deterioration of books after long gap of years. Easy access to any case reported in KLT, 'we repeat KLT' is now a click of the mouse away.

Beware of false claims of KLT C.D.. ROM.

Pirated versions of Back volumes of every Journal, is available in the market claiming that cases included are from 1949, but they just copy cases from AIR, SCC, KLT, KLJ, ILR, KTR other Journals and internet sites after slightly changing Headnotes. They do it without getting legal sanction from Journals published from Kerala and without paying any royalty. An imaginary citation like 1949..................1 is given at the top of the judgment. But the buyers of this pirated CD. ROM's do feel cheated, when they find no backup of Books, and Back Volumes, of such citations. KLT has no connection with these groups. We are aware Lawyers and Judges are being approached saying that such and such CD. ROM is CD. ROM of KLT Back volumes.

Please note that we are just presenting 'KLT Back Volumes' in CD. ROM Form. No cases from any other Journal is added. As a backup to this C.D.ROM every lawyers office, every Courts, Government Departments, Law Colleges and Foreign Law Universities have KLT, since 1949. Future annual upgradation will be supplied on regular basis. We are also presenting KLT online subscription services. Access to KLT online can be done now from any where in the World. Await for further details.

Like the Christian ideology which celebrates only the death anniversaries of Saints the more important event in the life of a man is his death, not birth, is his exit, not his entrance, for a man will be judged both by his fellowmen and by his maker not by what he was born with, but by how he had used it, not by what he had promised, but by what he had performed, not by what he had wished, but by how he had lived. KLT has been following this Christian ideology. We dedicate all the achievements KLT has achieved since 1949 to the almighty, for the kind benevolence and blessings.

Back Volumes, Internet-website, C.D. Roms and Online.--what next -- Hope for the best from KLT. Let us march forward with a pious wish and hope, to be translated into a reality that this world will be a better place to live, governed by the rule of law protected by the majesty of law. We fervently hope that by the grace of God and with the support of the Bench and the Bar, KLT will be able to continue its dedicated service in TUNE WITH TIME AND TOUCH WITH TOMORROW.

THE TSUNAMI AND THE LAW

(By Advocate P.B. Sahasranaman)

The theme of the World Environment Day for 2004 is "Wanted! Seas and Oceans -- Dead or Alive?" It stresses the need for the protection of sea and oceans.

Smt. Indira Gandhi, the then Prime Minister of India (1981), had written a letter to all the Coastal States to impose a ban for construction activities within 500 meters of High Tide Line. The intention was to prevent all kinds of unnatural development. Industrial pollution and dumping of waste shall be totally prohibited in this environmentally sensitive area, according to her. Thereafter working groups were established so as to prepare environmental guidelines for the development of beaches and coastal areas and the environmental guidelines, which has ultimately lead to the legislation of Coastal Regulation Zone notification (CRZ).

The implementation of CRZ has been difficult even though the Supreme Court directed its strict implementation. But every attempt was made to defeat the very purpose of the legislation obviously due to lack of place. Resorts, commercial constructions, large scale reclamations were made by people. Though the notification restrains the land reclamation, a (1996 (1) KLT 718) verdict of the Court, says that only such land reclamation as would disturb the natural course of sea water should fall within the area of prohibition? The Court also found fault with the petitioner who had not produced any material to show that the proposed land to be reclaimed would fall within the natural course of sea water. Of course, this proposition has been doubted by another Court and referred to a larger Bench. The Court permitted reclamation so as to benefit the islanders to construct bridges.

CRZ restrains the construction of buildings in the landward side of the existing road/ structures. A (1997 (2) KLJ 153) pathway, was declared as a road for the purpose of making constructions in violation of CRZ.

When the mining activity was challenged the (O.P. No. 2507 of 1997, dated 20th July, 1998) KHC has held as it is a rare mineral not available outside the CRZ area there is no violation. At the same time the Court directed the authorities to take steps to conduct a comprehensive environmental impact assessment of the area by a national institute of repute. Even though the judgment was pronounced on 20th July, 1998, the study is yet to be conducted.

How much reclamation we have done after the enactment? Is it more than the land which we have lost, by the catastrophic event that took place on 26th Dec. 2004. How many persons have been benefited by the constructions made in violation of the CRZ? Does it more than the lakhs of people who died?

Lack of proper implementation of the Coastal Regulation Zone is the result of this calamitous disaster. Impose heavy fines on the violators of the Coastal Protection laws and use the money to help the poor who have suffered due to the entry of disastrous waves. Provide justice to the nature. Otherwise the nature will take its own contempt measures in the form of Tsunami and other forms of disasters. Remember that the Gods own country has to be protected by the Gods own people. "Parasurama" has used his axe to create Kerala and not to destroy it. No Court can stay the further proceeding of the Tsunami. Remember the old saying that if you are cruel to the nature the nature will be cruel to you.

THE CHILDREN'S ACT

(By Sathyasree Priya E., Advocate, Cochin)

Sneha, a tender child of 8 years is waiting at the doorstep of her grandfather's house for her mother's arrival from the Court. She could not attend school from the date of re-opening as she had not paid her fees. It was not her fault at all. She had done well in her exams and scored a first class in all subjects. Yet she cannot enter the school premises, as she has not paid her fees. Her condition is pitiable as she is an unfortunate victim of long battles fought between her mother and father in Courts! Her mother got her custody as the father was not willing to look after her nor to pay up her maintenance costs! And her father had wilfully neglected to look after her! Sneha, who has to spend her time studying at school is now in her grandfather's house not knowing when she will be joining her friends at school or whether she'll be joining them at all!! It is really sad to state that there are thousands of such little Sneha's in our country not knowing what is in Store for them. The irony here is that our Constitution has been recently amended so as to guarantee right to education to all children below the age of 14!

In fact there are enough laws which provide rights to children including the right to be maintained. Of what use are these rights if there is no proper and speedier redressal mechanism when these rights are infringed?!

Marriage is not a mere joke and it incurs heavy responsibilities on the partners entering into holy matrimony, the most fundamental of it being providing maintenance for the children1 and the wife. This is such a fundamental duty that non compliance of it shall be treated as a criminal offence2! Unfortunately over millions of people in our country are unaware of even this basic duty or tend to neglect it and the result is that there are millions of neglected children suffering silently for no fault of theirs! This is nothing but punishment enforced on children and is worse as the sentences are forced on the defenceless little children who end up fending for themselves!

There can be no doubt that the primary responsibility of looking after the children is on that of the parents. The personal laws too emphasize this! The law goes one step further even to protect children born out of wedlock! The primary responsibility of taking care of such children born out of wedlock is that on the mother and the so called illegitimate children also have a right to claim maintenance from their putative father!! Thus there seem to be no dearth of laws to protect children. The question that often arises for consideration is what if the parents fail in their primary responsibility?

The International Convention on the Rights of the Child3 clearly lays down that upon failure of the parents in discharging their primary responsibility, there is a secondary responsibility upon the State to look after the welfare of both the "neglected children" as well as "delinquent children". India is a signatory to this convention and almost all the member countries of the UN are signatories to this convention4. No other convention in the UN has received such an overwhelming response!!. This clearly means that all the right thinking people in the world are concerned about the welfare of their children who are the keys to a better tomorrow! Even prior to becoming a party to this convention we in our Country have passed various Central as well as State enactments pertaining to children viz., The Children Act, The Juvenile Justice (Care and Protection of Children) Act, The Child Labour (Protection and Regulation) Act, etc. etc. Our Constitution has been recently amended to include right to education as a fundamental right5.

Unfortunately none of the laws seem to deal stringently with the shirkers of the primary responsibility viz., the parents of the child. This article has been written from the point of view of a neglected child.

For example, law prescribes that a parent or any other person whomsoever, having the actual charge of, or control over a child, assaults, abandons, exposes or wilfully neglects the child or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such child unnecessary mental and physical suffering, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both6. But there is a rider to this provision! Such a complaint shall be filed only with the previous sanction of the Government or an officer authorised by them in this behalf!

This makes it virtually impossible to prosecute a parent who defaults and hence this provision is hardly made use of. It is very doubtful whether there has been a single prosecution under this section so far though such a situation has been visualised by the drafters of this particular legislation! The children who are the hapless victims of child abuse and neglect are not directly permitted to approach the Court either personally or through a next friend nor even through a child welfare organisation7.

A close look at The Kerala Children Act, 1972 will reveal that though it is a good piece of welfare legislation enacted for the purpose of providing care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children in this State there are yet anomalies to be rectified urgently which have to brought to the notice of the legislators!

Generally, individuals under the age of 18 are treated as minors or children. According to the 'Children's Act' a child means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years.

Different enactment tend to define the same "child" differently. This anomaly has to be struck down and generally a child, may it be of any gender, until it becomes an adult i.e. attains the age of majority has to be treated as a child and is to be given all rights and privileges alike. This apart, the Act has special provisions to deal with 'neglected children'8 as well as 'delinquent children'9 separately.

The Children's Act gives power to a police officer or any other person authorised by the Government in this behalf to spot a neglected child and take charge of the child and bring him/ her before the Children's Court. Practically, this procedure is a complicated one. On the contrary, if this right is also given to a neighbour or the next kith and kin of the child or a child welfare organisation to move the Children's Court, much agony of the children could be prevented.

Unfortunately there are no such Children's Court seen to be established under the Act effectively. This inaction on the part of the Government has been severely criticised by Justice Potti in Sunilkumar v. State10.

Even after two decades of the passing of this judgment the much needed changes have not yet come through. The condition of both neglected as well as delinquent children is pitiable and in a thorough mess and there is none to voice their concern!

Pursuant to the enactment of the Children's Act, rules have been framed in detail for taking care of children in a very good manner of specific mention is R.72 which discusses in detail about the contribution that ought to be made by the parents or other persons in the welfare of the child11. If this rule is updated (regarding the amount of contribution— to suit the source of income of parents) and imported in maintenance proceedings before the Family Court it would bring great relief to children like 'Snehas' who suffer because of broken marriages for no fault of theirs. If this enactment (after correction of the few anomalies) and rules are followed true to its letter and spirit the State of Kerala will have no vagrancy, no neglected children. The delinquents, if at all any, will be taken good care of so that our State will become an ideal state, a role model, only to be followed by the various other States, and even other Countries as well !

__________________________________________________________________________________________________________________________________

Foot Note:

1. (a) S.20 Hindu Adoptions and Maintenance Act, 1956

(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

(b) S370 Mohamedan Law

 (1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain her daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during this infancy does not reliance the father from the obligation of maintaining them.

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

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

 (c) As far as Christians are concerned their liability is governed by the ruling in Mathew Varghese v. Rosamma Varghese, 2003 (3) KLT 6 (FB) Christian Law - A Christian father is under an obligation to maintain his minor son. The obligation of a father springs from his status as a guardian. The right to custody carries a duty to take care. The right to deal with the person and property places the parent under an obligation to protect the child against any kind of want. The right of the child is basic. It has been customarily recognized. The guardian is under a duty to guard the child. The child has a right to be maintained.

(d) Regarding custody of the child, the following decision can be looked into Chethana Ramatheertha VKumar v. Jagirdar (Karnt.)(DB), 2003 (2) KLT 139 (SN), Hindu Marriage Act, 1955, S.26 read with S.13 of the Hindu Minority and Guardianship Act, 1956 -- Custody of children — Question of custody of child is not to be viewed from angle of 'which parent has a better right' but from approach as to 'company of which two parents is better suited for integrated development of personality of child and as to whether child receives necessary inputs if in company of a particular parent, for a healthy growth and development of personality of the child'.

2. S.125 'The Code of Criminal Procedure, 1973'.

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

 (a) his wife, unable to maintain himself.

(b) his legitimate or illegitimate minor child whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury, unable to maintain itself, or

3. Art. 18 of the UN Convention on the rights of child specifically states that

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as he may be legal guardian, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

4. The UN Convention on the Rights of the Child was adopted and opened for signature, ratification and accession by the General Assembly on 20th November 1989 and entered into force on 2nd September 1990. There are 191 State Parties to the Convention.

5. (a) Article 21-A: The State shall provide free and compulsory education to all children of the age of 6-14 years in such manner of the State may, by law, determine (Constitution 86^th Amendment Act, 2002).

(b) 5 l-A(k) (86th amendment Fundamental Duties -86th Amendment)

(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.

Substitution for new Art.45:The State shall endeavour to provide early childhood care and education for all children until they complete age of 6.

6. S. 41 Kerala Children Act, 1972.

7. S.12 Kerala Children Act, 1972.

(1) If any police officer or any other person authorised by the Government in the behalf by general or special order, is of opinion that a person is apparently a neglected child, such police officer or other person may take charge of that person for bringing him before the Children's Court.

(2)..................................................................................................................................

(3) Every child taken charge of under sub-s.(l) shall be brought before the Children's Court within a periofl of twenty four hours of taking such charge excluding the time necessary for the journey from the place where the child had been taken charge of, to the Children's Court.

(4) Every child taken charge of under sub-s.(l) shall, unless he is kept with his parent or guardian, be sent to an observation home (but not to a police station or Jail) until he can be brought before a Children's Court.

8. S.2(k) 'neglected child' means a child who

(i) is found begging

(ii) is found without having any home or settled place of abode or any ostensible means of subsistence or is found destitute, whether he is an orphan or not

(iii) has a parent or guardian who is unfit to execute or does not exercise proper care and control over the child; or

(iv) lives in a brothel or with a prostitute or frequently goes to any place used

9. (a) S.2(j) 'delinquent child' means a child who has been found to have committed an offence.

(b) under the Juvenile Justice (Care and Protection of Children) Act 2000 (which was recently amended and brought into force on 1.4.2001) a delinquent child is defined as a child in 'conflict with law'. The Act further includes within its ambit provisions to deal with children in need of care and protection. Accordingly a child who has parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child (or) a child who does not have a parent and no one is willing to take care of or whose parents have abandoned him or who is missing and run away child and whose parents cannot be found after reasonable inquiry is brought under the purview of the Act. A child welfare committee is to be constituted under the purview of S.29 of the Act to exercise the functions under the statute. The scope of this Act has been examined in Parvathy v. The Superintendent Corpn. Relief Centre, as reported in 2002 (1) KIT 523.

10. 1982 KLT 915 - para 7 "The duty towards children enjoined by the provisions of the constitution, some of which have been translated into the obligations under the Act envisage continuity in the constitution of Children's Courts and it would be extremely unfair to ignore this obligation by failing to notify the Children's Courts on the expiry of the term of the existing members. The Children's Court have to be constituted immediately".

11. "R.72 Children Rules -- The competent authority making an order for the detention of a child in a Home or Special School may direct the parent or other person liable to maintain the child and having the means, to pay in advance to the Court in each month such sum of money not exceeding Rs.100 per month in such manner as the competent authority may think fit towards the maintenance of such child. If the parent or such other person fails to remit the amount in each month the defaulted amount shall be recoverable under the Revenue Recovery Act as if it is an arrear of revenue and the Court can order for the discharge.

Role of The Kerala Judiciary Towards The Empowerment of Women

(By Sathyashree Priya E. Advocate, Cochin)

Power means 'the ability to do anything physical, mental, spiritual & legal".

Further definition of the term 'Power' — Strength, energy, right to command, authority,rule, influence, control, potentially a wielder of authority, strong influence, or rule..........andso on and so forth.

The empower means to clothe with all such things quoted supra.

Empowerment of women means "to give women such power of authority, rule, influence, command, etc. etc.". Nature has gifted women with all such gifts in abundance. Probability in the long run of human race these would have been slowly and gradually snatched away from them. The reason behind this could be many. But the result is that women were looked down upon as a piece of chattel to be owned and possessed with no personality, with no voice, without much say, either in the household affairs or in the affairs of the State. This was the position of a woman in the beginning of 20th Century (though in the Vedic and pre-Vedic times the scenario was totally different!)

Women were not allowed to own, possess, buy or sell properties, were deprived of individual means of livelihood, (even if permitted to earn) were deprived of equal wages for the equal nature of work, were cut off from the political process, denied of education; they did not even have a right of choice in their own matrimony.

Recognising the unequal status of our women folk, the framers of our Constitution have introduced certain enabling provisions so as to uplift them and enable them to achieve equality on par with her counterparts. Various enactments have been enacted by both the Centre as well as State Government for the empowerment of women and for the purpose of their equal participation in all walks of life. There are certain provisions in our statutes which take into consideration the status of women in our society. For example, the Code of Civil Procedure protects a woman from arrest or detention in execution of a money decree. This provision was challenged as unconstitutional. But it's constitutionality was upheld in Cyril Britto v. Union of India and others as reported in AIR 2003 Ker. 259. The role of the judiciary towards empowering women could be to identify their rights and upheld the same and also in interpreting the rights in a beneficial manner wherever possible.

Marumakkathayam -- A Special Mention

Though the State of Kerala is very small in territorial extent, we do not find elsewhere in India, as in this State, such a miscellaneous collection of communities with such a variety of customs and usages in their family relations especially relating to women. This peculiar feature of Kerala presents complicated problems in the application of personal laws in the administration of Justice. This is perhaps the only State in India where the Marumakkathayam or the 'matrilineal system of descent' was practiced. The matrilineal line of descent is the essence of the Marumakkathayam and the Aliyasantana systems. Descendants of the family line is through one of common ancestress. The marriage of a girl never operates as severance of her membership from the family of her birth.

But the properties were administered usually by the eldest 'male' member of the family and the female members did not possess a right of alienation. Even in the matrilineal system this was the position of law! In patriarchal system as well, which is generally practiced elsewhere, women were not allowed to possess or alienate property except the 'stridhana' offered to her or promised to be offered to her at the time of marriage. Thus resulted in lowering of the status of women in the society as she was not financially empowered!!

Gender Justice

One of the methods of empowering women is through Gender Justice. The Courts in Kerala are quite alert to those rights. Unfortunately the number of cases filed in the realm of Gender Justice is abysmally low. However, there are quite a few landmark judgments, which try to uphold the rights of the women, which are discussed below. Gender Justice includes Social Justice, Political Justice and Economic Justice as well.

Rights of Women

There are various rights available for the empowerment of women through various legislations. Some of the major rights recognized under law are

(1) Right to life

(2) Right to equality

(3) Right to education

(4) Right to equal pay for equal work

(5) Right to Maternity Benefits

(6) Right against sexual harassment at work places

(7) Right against exploitation

(8) Right to property

(9) Right to maintenance

(10) Right to participate in the political process etc. etc.

Women and Property Rights:

No doubt, the right of women recognized under Hindu Women's Right to Property Act. 1937'. to own and alienate property created a revolution in the status of women and was considered as a big leap towards empowerment of women. It was declared by Justice Balakrishnan in Kamalakshi v. Pankajakshan as reported in ILR 1991 (3) Ker. 500 that a widow has statutory right to get a share equal to that of the share due to the son. The right to property is governed through various personal laws. The Hindu's are governed by Hindu Succession Act and as far as Christians are concerned Indian Succession Act is applicable to them.

Prior to S. 14(1) and (2) of the Hindu Succession Act women had only a limited estate in properties. However in Rohini & Ors. v. Janaki & Ors., 1988 (1) KLT 889, Pareed Pillai, J. declares that S. 14( 1) of the Hindu Succession Act has very wide amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and any property acquired by inheritance, partition or arrears of maintenance or gift. He further declares that such estate is an absolute one and is indefeasible and its ambit cannot be diminished or extinguished by any text or rule of Hindu law or by any presumption or any legal fiction.

Further in interpreting S.18 of the Act Justice Krishnamoorthy, J. in Narayanan v. Pushparajini, 1990 (2) KLT 286, holds that the Act never intended to make any difference between a man or a woman and the relationship to be reckoned is in terms of the degrees of ascent or descent or both.

Moving one step ahead, Justice Kalliath in Sadasivan v. Vasumathi, 1987 (1) KLT 592, interprets S.23 of the Hindu Succession Act in such a way that female heirs could claim partition of the dwelling house where there is only one such male heir involved (and if there is no plurality of male heirs).

As far as Christians are concerned in Mary Roy v. State of Kerala, 1986 KLT 508 (SC), the Supreme Court declared that intestate succession to the property of Indian Christians in the territories of the former State of Travancore is governed by the provisions contained in Chapter II of Part V of the Indian Succession Act, 1925. Since S.33 of the Indian Succession Act provides for equal share of the property to wife and the lineal descendants of the male dying intestate, it goes without saying that daughters also have an equal right in the property as to that of sons.

Dowry

In dealing with provisions under Dowry Prohibition Act, 1961 Justice .K.Balasubramaniam as reported in Rani v. Sasidharan, 2002 (1) KLT 194, categorically lays down that though gift is executed in favour of son-in-law after the marriage if terms and conditions of the gift are settled before the marriage took place then such a transaction could be termed as 'dowry' and is illegal. No right could be claimed based on such an illegal transaction.

Right to Maintenance

The need to provide reliefs of maintenance emanate from social ethics and personal economics and this need is sought for both on the moral and secular grounds. This has been laid down in a Division Bench ruling (V.V. Kamat, J. & P.K. Balasubramaniam, J. in Joy v. Usha & Ann, AIR 1996 Ker. 191).

In proceedings under S.125 of the Criminal Procedure Code the Kerala High Court in Sreedharan v. Pushpa Bai, 1978 KLT 26, has held that the standard of proof required for a marriage in such proceedings is not so high as is required in connection with proceedings under Indian Divorce Act or in a prosecution for bigamy. This position has been reiterated by Justice Kurian Joseph in Selvaraj v. Jaya Kumary & Ann, 2000 (3) KLT 519. His Lordship has held that in a petition for maintenance by a distraught wife standard of proof of a marriage is not so high as required in other proceedings. Also in Hymakrishnadas v. Krishnadas, 1985 KLT (SN) 53, it has been held by our High Court that pleadings in proceedings under S. 125 is to be liberally construed. Thus while interpreting such beneficial legislations in a liberal manner, the Courts come to the rescue of the hapless women who are otherwise unable to help themselves financially and are left high and dry by their husbands! Further it has been laid down in 'Narayanan v. Parvathy', 1980 KLT 605, that no wife can be compelled to submit to the indignity and icy neglect such as the petitioner has shown and to continue to suffer the ordeal of her animal existence in his house merely because of the food and shelter that is available there.

S.18 of the Hindu Adoptions and Maintenance Act, 1956, clearly lays down that for sufficient reasons a Hindu wife shall be entitled to live separately form her husband without forfeiting her claim to maintenance. S.24 and 25 of the Hindu Marriage Act, 1955 provides for alimony to a Hindu wife. According to S.20 of the Act a Hindu is bound to maintain his or her aged or infirm parents and his or her legitimate or illegitimate children.

These Sections have received a liberal interpretation in the judgment of Sukumaran, J. (as he then was) in Radhakumari v. K.M.K. Nair as reported in 1982 KLT 417. It was laid down here that the fact that the wife was being supported by her parents was no ground for a husband to claim immunity from liability to pay maintenance. Social status, age, educational and other requirements of children were relevant factors in fixing quantum of maintenance. His Lordship by way of obiter, continued to express anguish over the Family Courts not being set up till that point of time. He chided the Courts below in applying their minds mechanically in family related disputes. In paragraph 32 of the above quoted decision he criticizes the Trial Court Judges while observing that a woman or a wife was treated as a chattel or as 'stolen articles'. He also had stressed that Courts with presiding officers well trained to deal with such disputes in a human way ought to be appointed to hear disputes relating to the family. Further his Lordship in E.V. Kunhimariam v. Oormaveettil Mamm, AIR 1985 Ker. 239, chides the attitude of a Indian male in para 32 of his judgment. Reverting to the facts of the case (where a Muslim woman married as a second wife to her husband and subsequently deserted by him after having an infant child to look after) he observes that this case perhaps demonstrates the extremely harsh and rigorous attitude of Indian mind towards women so unfortunately situated as the Indian divorced wives often are, even in the nineteen eighties.

Yet another landmark decision rendered by a Full Bench of the Kerala High Court in Mary Sonia Zacharia v. Union of India, 1995 (1) KLT 644 (FB)) deserves a special mention here. It was declared here that there is no constitutionally justifiable reason for denying a right of dissolution of marriage on the ground of cruelty coupled with desertion to Christian wives alone when spouses belonging to all other religions are granted dissolution on those grounds also independent of adultery and that S.10 of the Indian Divorce Act would remain without the words "insectuous" and "adultery coupled with" as these were held to be violative of Arts. 14, 15 and 21 of the Constitution of India.

In fact this decision subsequently paved way for the much needed reforms in the Indian Divorce Act which stands amended now.

The Kerala High Court has upheld the right of a Muslim woman to claim fair provisions for her future use beyond the iddat period in Kunhammed v. Amina, (M.M. Pareed Pillay, J. and T.V. Ramakrishnan, J.) as reported in 1995 (1) KLT 765 (DB) have held that the former husband of a divorced woman under S.5(3) of the Muslim Woman (Protection of Rights on Divorce) Act, 1986 is liable to make a fair and reasonable provision for her livelihood even for post iddat period apart from his liability to pay maintenance during the iddat period. This decision of their Lordships was later affirmed by the Hon'ble Supreme Court in a later judgment Danial Latif v. Union of India as reported in 2001 (3) KLT 651 (SC)(FB) rendered by it.

Indian Divorce Act:-

While dealing with S.10 of the Indian Divorce Act, Justice Lakshmikutty as reported in Philip v. Susan Jacob, 2001(1) KLT 890, has categorically laid down that "The most cruel thing that can be done against a woman is to question her chastity without any basis". Hence judicial separation cannot be ordered in a petition by the husband for the reason that wife is separately living on this ground.

Equality in Employment Opportunities:-

Regarding equality in employment opportunities Vijayamma v. State of Kerala (as reported in 1977 KLT 677, proves to be a landmark judgment. It has been held that if the effect of the law or an executive order is such that by its operation he or she is denied of the fundamental right only on the basis of his or her sex, the same would be unconstitutional. It was further held here that Art.l5(l) prohibits classification of citizen on the basis of sex for any purpose and Art. 16(2) in matters relating to public employment. In the instant case the petitioner had not been considered for promotion as stenographer in the police department only because she was a woman, wherefore according to the respondents she was unsuitable for that work because of its peculiar nature namely, 'touring along with officers and working at odd hours'. The real and substantial reason for, and the direct and immediate ground of her ineligibility for promotion was that 'she is a woman'. In Rajamma v. State, 1983 KLT 457, the Courts have even gone one step further. In fact this case was one among the foremost in the High Court of Kerala in recognizing the rights of women. This was a case where prescription of cycling qualifications for women for appointment to posts peons was considered as not supportable on logic or reason. Justice Subramanian Potti (Ag. C.J. as he then was) on his behalf and on behalf of his brother Judge Paripoornan, J. held here that 'the right of women should not be denied on fanciful assumptions of what work the women could do and could not do. Whether the work is of an arduous nature and therefore unsuitable for women must be decided from the point of view of how women feel about it and how they would assess it'. Hence denial of appointment to women in Last Grade Service on the sole ground that they are women is violative of Arts. 14 and 15. Such denial is irrational and militates against the guarantee of equality. This decision has resulted in creating a positive scenario in the work force. A lot of lady employees are absorbed as peons as well and are able to earn a decent livelihood of their own!

Also in Omana Oommen v. F.A.C.T. Ltd., 90(l) KLT614, his Lordship Sivaraman Nair,J. had held that the denial of appointment to ladies on the ground that they have to work in night shifts is entirely on the basis of sex and is violative of Art. 14 and 15 of the Constitution of India.

In Mariamma v. Hindustan Latex Ltd. his Lordship Justice K.G. Balakrishnan (as he then was) as reported in 1993 (1) KLT 899 has held that denial of promotion to lady employee working as Head Guard to that of Assistant Security Inspector on the ground that she is a lady is violative of Art. 16 of the Constitution of India. In Hindustan Latex Ltd. v. Mariamma, 1994 (2) KLT 111, it has been held that the 'Special Provision' in favour of women under Art. 15(3) can be made whether by the legislative wing or by executive or any other authority. Also, Justice Mohammed in writing down the judgment further emphasized that the validity of a law apparently offending Art. 14 can be upheld if it falls within the ambit of Art. 15(3).

These decisions have helped in the long run towards higher percentage of employment of women in the labour force.

This, so far, has been the role played by the Kerala Judiciary towards empowerment of Women. The Judiciary is quite alive to the promotion of Gender Justice and we wish our judiciary could produce more landmark judgments (as and when the judiciary is approached) to wipe away the tears shed in silence by many woman so that God's dwell in God's own country.