Analysing Tax Phobia

(By Jayasankaran Nambiar A.K., Senior Advocate, High Court of Kerala)

The taxman is an abhorred person and, perhaps, for a valid reason. He is a person who arrives, armed with the authority of law, to take money away from a person who has it. The animosity against taxes is a shared one and the oft-quoted expression by Benjamin Franklin that “in this world nothing can be said to be certain, except death and taxes” echoes the sentiments that successive generations of people have harboured against taxes. I have often wondered whether our feelings would have been otherwise if we had a different perspective of the taxman - one that saw him as a facilitator for the payment of tax by a willing citizen and a recovery officer only for the habitual and incorrigible dodgers.

Needless to say, a proper understanding of the concept of taxation in a democratic society does influence one’s attitude and tolerance to the system of taxation that prevails therein. As students of tax, we are taught that a tax is a compulsory exaction of money from a citizen and the concept of quid pro quo is wholly alien to the concept of a tax. This conceptualization of a tax as a forced levy inevitably leads one to adopt a defensive stance whenever the tax department raises a query -- sometimes even an innocuous one! How accurate, though, is this definition of tax? Is a tax really an exaction of money from the citizens?

The origins of a democratic system of taxation date back to the period when people decided to organize themselves into groups or societies for the mutual benefit of all. In such an organization, a tax was seen as an amount that was determined as payable by each member of the group as his/her contribution for the shared expenses of that group -- expenses that were required to be incurred for the benefit of all. In this sense, therefore, the payment of the amount was voluntary since it was a condition for continuing as a member of the group. The tax collector was a person nominated as such for collecting the money payable by a member of the group. Thus, the nomination of the person, as well as the conferment of powers on him, was with the express consent of the persons who constituted the society, the governance of which was sought to be financed by the amounts collected.

The “consent” of persons in a society, to the system of taxation prevailing therein, continues to provide the “justification” for the taxation system in modern democratic societies as well. The difference, however, lies in the nature of such consent. While in primitive societies the participation of the people in governance was more “direct” and “proximate”, the same cannot be said of the system of governance prevalent in modern societies. The “distancing” of the people from the act of governance has resulted in their consent to governance being “indirect” thereby leading to a perception of a tax as something to which they have not given their direct or active “consent”. Over time, this perception leads one to believe that a tax is something that is exacted from them - against their will.

Truth be told, however, the system of taxation in our country does have its foundation in the consent of “We, the people of India”. The mere fact that vast majorities of our people, not active in politics, have chosen to play an indirect role in matters of governance, cannot obliterate this truth. The Preamble of our Constitution declares that the Constitution is one that is given by the people of India to themselves. The laws enacted by the Parliament and the State Legislatures trace their legal validity to the provisions of the Constitution and hence the taxes imposed by these legislative bodies have the backing of validly enacted law. The Constitution itself re­iterates this principle when it states, in Art.265, that there shall be no imposition of tax save by authority of law.

Given that the levy of tax has its origins in a consent that is traced to the citizens of our country, what is it that is so obnoxious about a tax? After all, people cannot complain about something to which they have willingly subjected themselves. My belief is that the real problem lies in the manner in which the system of taxation is administered in our country. My experience with tax litigation leads me to believe that an honest and efficient tax administration can bring about a substantial decline in litigation in this area of law and ensure happiness matching utilitarian expectations. But that just doesn’t seem to be happening, as yet, in our country.

To illustrate the point, let us look at a basic requirement of a tax regime viz. assessment. Tax assessments often begin with the filing of some sort of return by the assessee. This is nothing but a declaration by the assessee of his tax liability, based on facts and figures within his knowledge, pertaining to the taxable event. The assessee, based on his understanding of the law, makes the declaration and in this exercise a lawyer or an accountant often assists him. The return submitted by the assessee is either accepted as such by the assessing officer nominated by the department concerned or subjected to a scrutiny by him. If the department feels that certain clarifications are required, it is expected to discuss the same with the assessee and then finalise the assessment. The entire exercise seems effortless but, in reality, things can get very complicated.

For a start, the assessing officer works on a tight schedule and he is expected to complete assessments within a time frame. Add to this the pressure that mounts on him towards the end of a financial year when he is asked to achieve “targets” of revenue collection. The anxiety brought about by this work environment, together with the zest for achieving the target, leads to assessments becoming a mechanical exercise -- one in which the assessing officer is not interested in hearing legal justifications for non-payment of tax but is more interested in confirming tax demands - even illegal ones - to achieve targets. It is pointless to find fault with the tax officers alone, for the system is such that there is no incentive to finalise an assessment legally and correctly whereas reaching targets earns accolades for the officer, who is then termed “efficient”.

I have never understood this concept of target setting that has been consistently and relentlessly pursued by revenue departments over the years. The targets “achieved” by the end of a financial year, often get “erased” when the appeals are heard by the appellate authorities and if the demand against the assessee is set aside by the said authorities. Economically, it is a nightmare when one considers that money rightly belonging to an assessee is either retained by the department or locked up in litigation till the verdict in favour of the assessee at a later point in time. I would have thought that any impediment to efficient and meaningful adjudication would have met with the disapproval of administrators, but that is obviously not the case. Adjudication at the lower levels has become ritualistic and mechanical thanks to a senseless obsession with targets!

What is described above is just one of the facets of tax administration and something that happens at the base level. Similar problems exist even in the higher levels of tax adjudication. Surprisingly, targets seem to act as incentives even for first level appellate authorities. Effective and unbiased adjudication often takes place only at the second appellate level. This factual situation throws to the winds the concept of a multi-tier adjudication system and entails a phenomenal waste of money by way of litigation expenses. The exasperation of an assessee, in such a situation, comes as no surprise.

Increase in litigation is a reliable indicator of administrative inefficiency. People choose to spend their time more productively than in the pursuit of unnecessary tax litigation and providing citizens with clarity in matters of taxation forms an indispensable part of a fair tax administration. While, it must be said, to the credit of the revenue, that certain departments have taken the initiative to publish manuals outlining the nature of the tax and the policy changes justifying amendments to statutory provisions, there is still a lot to be done to ensure clarity. People have a right to know, sufficiently in advance, what their tax liability in the coming year would be. This is necessary for them to plan their lives. Steps have also to be taken to ensure that adjudication is reduced to a minimum and, if unavoidable, effective and meaningful at each stage. This can be done by insulating adjudicating officers from needless pressures so that they can apply their mind to the problem at hand and ensure that the citizen is not deprived of anything more than what is legally due from him. Equally important is the necessity to let people know how the money, collected as taxes, is proposed to be spent or actually spent. Taxes collected have to be dealt with on the principles applicable to Trusts and the administrators have a duty to account to the taxpayer as to how the money collected has been spent. Such measures, among many others, will inspire the citizens’ confidence in the tax administration and, in time, we might just stop frowning when we meet the taxman!

‘My Lord’ or ‘Mr. Justice’?

(By P.K. Suresh Kumar, Senior Advocate, High Court of Kerala, Ernakulam)

The Article by Advocate S.A. Karim with the title “Addressing the Judges” in Part 5 of 2014 (1) KLT and the reference therein to the petition filed by another Advocate in the Supreme Court reminded me of two communications published in 1973 KLT (journal) p.89. For the convenience of readers they are reproduced below:

Mode of Addressing the Courts Communications

HIGH  COURT  OF  KERALA,

Cochin – 11

22nd June, 1973

My dear Mr. President, Advocates’ Association,

I am enclosing a communication from the Ag. Chief Justice of India which is self-explanatory.   In this connection, I recall our talk this morning.   In the light of that, please note that with effect from the 1st July 1973, the Judges of the High Court may be addressed by the members of the bar as ‘Mr. Justice’ and the Chief Justice as ‘Mr. Chief Justice’.  If it becomes difficult to address a Judge as ‘Mr. Justice’ in the course of arguments, he may be addressed as ‘Sir’.  The form of addressing the court may be ‘this Honourable Court’.   Please inform the members of the bar accordingly.

I am considering your suggestion for introducing similar methods of address in the subordinate judiciary.

Yours sincerely,

Sd/-

P. Govindan Nair,

Ag. Chief Justice.

Communication  from  the Ag. Chief  Justice  of  India

Chief Justice

SUPREME COURT OF INDIA

NEW DELHI

19th April, 1973

No. 124-CJI/73

My dear Chief Justice,

Re:   Mode of addressing the Court

After receiving replies on the above subject from almost all the Chief Justices of the High Courts, a Meeting of the Full Court of the Judges of this Court was held on March 12, 1973.  The Meeting decided that the Judges and the Chief Justice of the Supreme Court may be addressed by the members of the Bar as ‘Mr. Justice’ and ‘Mr. Chief Justice’ respectively, and when addressing the Court the form of address would be “this Honourable Court”.   It was also agreed that where in the course of arguments it becomes difficult to address a Judge as ‘Mr. Justice’ he may be addressed as ‘Sir’.

In consultation with the Bar Association here it has been decided to introduce the new mode of address on and from May 1, 1973.

I suggest that a uniform mode of address in the Supreme Court and in the High Courts would be proper.

With kind regards,

Yours sincerely,

            Sd/-

                  (J.M. Shelat)

              Acting Chief Justice.

So, forty years have passed since the Supreme Court and the Kerala High Court took the decision that the Judges of those courts need not be addressed as Lordships. Similar decision was taken in relation to the subordinate courts also. But, the decisions were not implemented by those who were supposed to do that. The Advocates continued to address the Judges as Lords though it was not in consonance with the Constitutional philosophy of the nation. The Bench had done what it could have done in order to democratise the court proceedings. It was the Bar which did not rise to the occasion.

But, several years later, the apex body of the Bar, framed Rules regarding the manner in which Judges of the higher courts and subordinate courts have to be addressed, without knowing that those are matters beyond their Rule making power and without noticing the existence of the decision of the Supreme Court quoted above. The Advocate who instituted the Public Interest Litigation was also not aware of the decision of the Supreme Court.  And he got his petition* dismissed on the ground that the relief sought for was something negative. If he had cited the above administrative decision of the Supreme Court, he could have asked for a direction seeking the implementation of the same.  

In any view of the matter, the Supreme Court, while dismissing the aforesaid petition has made it clear that the Judges are not particular that they need be addressed as Lordships and that any decent mode of address is welcome.  The ball is, therefore, in our court once again and it is for us to decide whether to stick on to the archaic ways or to change according to modern times.   If the administrative decisions quoted above have not perished by virtue of the doctrine of desuetude, the lawyers can think of implementing them or at least what has been suggested by Justice Alexander Thomas in his maiden speech.

* Ed. Note: W.P. (C) No. 881 of 2013 - Shiv Sagar Tiwari v. Secretary General, Supreme Court  of India.

'Imprisonment for Life which shall mean Imprisonment

for the Remainder of that Person's Natural Life' -- What does It Mean ?

(By P. Biju, Advocate, Nedumangad, Thiruvananthapuram)

Like Legislature of any other nation, Legislature of India also is also very particular and vigilant in the enactment of new legislations and also in the amendment of existing legislations. Recently a drastic amendment has been made by our Legislature in the Indian Penal Code, Criminal Procedure Code and in Indian Evidence Act through Criminal Law (Amendment) Act 2013 (13 of 2013). The mobilization of candid, vibrant and young people of India with candle lights at the capital city in the light of Delhi rape case and their demand for more powerful legislation regarding atrocities against woman may be the reason behind the present amendment. But how far the amendment is sustainable is a matter to be discussed.

As per new amendment a new kind of imprisonment, i.e, IMPRISONMENT  FOR  LIFE WHICH  SHALL  MEAN  IMPRISONMENT  FOR  THE  REMAINDER  OF  THAT  PERSON’S NATURAL  LIFE has been straight away prescribed for offences u/S. 370 V, 370 VI, 376 II, 376 (A), 376 (D) and 376 (E) of Indian Penal Code. But, whether the said amendment carried out in the schedule I of Cr.P.C. will withstand or not? Whether it is free from doubts? Whether the above said amendments are capable of being executed and enforced by the judiciary and Government?

To start with the discussion various kinds of punishments which now exist in our nation which are described in Section 53 of I.P.C. is to be looked into first.

They are ‘Death’, ‘Imprisonment for life’, ‘Imprisonment (Rigorous and Simple)’, ‘Forfeiture of property’ and lastly ‘Fine’. Nowhere in Section 53 of I.P.C. the newly introduced punishment finds a place. Hence there is no choice for the Legislature to prescribe a punishment other than what is prescribed in Section 53 of I.P.C.  Even then the new kind of punishment is introduced by the Legislature through the present amendment. Whether such a punishment can be introduced directly without any amendment in Section 53 of I.P.C.? I leave the question to be answered.

Even if it is assumed that a new kind of punishment is capable of being introduced without amending Section 53 of I.P.C., or, if it is assumed that the new kind of punishment which we discuss here is introduced after amending Section 53 of I.P.C., will it sustain? In order to sustain the newly incorporated punishment, it must be distinct and different from that of the existing kinds of punishments and must serve some purpose which the existing punishments are unable to serve. In this context the scope, purpose and meaning of existing punishments and the newly incorporated punishment are to be looked into.

The meaning of all punishments described in Section 53, except ‘imprisonment for life’, can be gathered from its plain reading itself. But ‘imprisonment for life’ requires some effort to understand. The Hon’ble Apex Court of India as well as Hon’ble High Courts of various States had many occasions to consider the meaning of ‘imprisonment for life’ and it has become final that ‘imprisonment for life’ should mean imprisonment till death of the convict. A court awarding imprisonment for life cannot restrict the period of imprisonment to a particular period. When a court is awarding imprisonment for life it has only one meaning i.e., the convict has to undergo imprisonment till his death. Then what does ‘IMPRISONMENT  FOR  LIFE  WHICH  SHALL MEAN  IMPRISONMENT  FOR  THE  REMAINDER  OF  THAT  PERSONS  NATURAL   LIFE’ means? I don’t find any more meaning to it other than what is meant by ‘imprisonment of life’. If that be so what difference the newly incorporated punishment will make in the punishment scenario? What more purpose would be served and what is the scope of incorporating the new kind of punishment?

As the newly introduced kind of punishment has no distinction or difference from that of ‘imprisonment for life’ in its meaning, scope and purpose, to sustain, it must have some difference in its way of execution by the Government at least. In this context the power of the Government in executing the punishment has to be evaluated. Though the power to award punishment is vested with the court the power to execute the punishment is with the government. The power of the Government regarding execution of punishment is described in Ss. 432 and 433 of Cr.P.C. As per Section 432 the Government has the power either to suspend or to remit the sentence and as per Section 433 the Government has the power to commute the punishment awarded by the court. Such power is not vested with the court but is vested with the Government. That power is at the discretion of the Government. No convict has a right to seek suspension, remission or commutation as of right. Such power can be exercised by the Government even in cases of ‘imprisonment for life’. Since that be so when a court has awarded imprisonment for life’ it goes without saying specifically that a convict is punished for imprisonment for the whole of the remainder of that persons natural life even though it has not been specified so in the judgment, unless the Government has invoked Section 432 or 433 of Cr.P.C.

The present amendment Act does not carry out any amendment in S.432 and 433 of Cr.P.C. restricting the Government’s power to invoke the jurisdiction as against the newly incorporated punishment. Then the new kind of punishment is also subjected to suspension, remission or commutation as in the case of other punishments. So long as S.432 and 433 Cr.P.C. still remains untouched the Government has its power to invoke the jurisdiction under those sections over the newly introduced punishment as welpl. On that score also there is no difference between ‘imprisonment for life’ and the newly introduced punishment. Then what is NEW in the present amendment?

Yet another thing to be noted is that even after the introduction of new kind of punishment the earlier kind of ‘imprisonment for life’ is still retained for about 50 offences under I.P.C. and various other offences under different statutes. What is the meaning of ‘imprisonment for life’ then? When there is no difference between the two and when there is no classification in the Indian Penal Code regarding punishment of ‘imprisonment for life’ and IMPRISONMENT  FOR LIFE  FOR  THE  WHOLE  OF  THE  REMAINDER  OF  THAT  PRISONER’S  NATURAL LIFE whether such a classification is possible through a direct amendment in Cr.P.C.?

If the Legislature wanted to classify ‘imprisonment for life’ into two or more it should have classified and defined it separately through necessary amendment in S.53 of I.P.C. or should have amended Ss.432 and 433 Cr.P.C. first. Unless such a classification or amendment is made what change the present amendment can have practically. The amendment introduced would not enable the court itself to make any classification of its own in the punishment scenario.

So also there are many offences for which fraction of sentence have to be calculated. As per Section 57 of I.P.C. fraction of ‘Imprisonment for life’ shall be reckoned as equivalent to imprisonment for 20 years. But what should be reckoned as equivalent to the new kind of punishment? The Amendment Act is silent with respect to the fraction of the new kind of imprisonment. What should be done by the courts if a circumstance to calculate its fraction arose ?

If the amendment made is followed by the courts and punishment of ‘IMPRISONMENT FOR   LIFE   WHICH   SHALL   MEAN   IMPRISONMENT   FOR   THE   REMAINDER   OF  THAT  PERSON’S   NATURAL   LIFE’ is awarded what should be done by the Government? How these convicts are to be handled? Whether such convicts can be released earlier by the government by invoking Section 432 or 433 or whether the power u/S. 432 and 433 are not to be invoked by the Government and are they to be imprisoned till their death invariably in all cases? OR whether the power u/Ss. 432 and 433 can be invoked by the Government only in favor of convicts who had been convicted for ‘imprisonment for life’ alone? These are all the doubts created by the new amendment Act.

When these kinds of ambiguities exist whether the newly implemented kind of punishment can be awarded by the courts? If it cannot be awarded what purpose would be served by the new amendment?

So long as S.53 of I.P.C. and 432 and 433 of Cr.P.C. remains unamended and continues unaltered and so long as Parliament has not evinced an intention to classify ‘imprisonment for life’ and ‘IMPRISONMENT   FOR  LIFE WHICH SHALL MEAN IMPRISONMENT FOR THE REMAINDER OF THAT PERSONS   NATURAL LIFE’ separately, there is no reason to assume that Legislature had stretched its mind in full before making the present amendment. On a matter of such vital importance the Legislature would have resorted to corresponding Legislative alterations and amendments before making the new amendment. Since many legal luminaries were there in the Parliament these thoughts should have been reflected in both its Houses when the Amended Act has come up for consideration.

Family Courts were established as per Act 66/1984. The preamble tells us: “An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith”.

The question that causes serious concern to laymen, lawyers and lawmakers is: Does our system achieve, to some extend, this laudable object ?

Recently, our Hon’ble Chief Justice reminded us that Family Courts are not meant to facilitate divorce, but for uniting and strengthening matrimonial relations. This simple but elegant statement reminds us of the often forgotten object of the Statute.

We have been witnessing a steady deviation from the avowed object of the Statute. We are witnessing a stage where matrimonial disputes are considered routine civil litigation material with emphasis given on ‘disposal as per law.’ This is not the cherished object of the statute. Otherwise, there was no need to detach family disputes from the jurisdiction of civil courts. The Family Courts Act contains inbuilt measures to ensure that cases coming thereunder are not adjudicated and decided as ordinary civil matters. This starts right from the selection of Judges. S.4(4) of the Act provides thus:

In selecting persons for appointment as Judges (a) every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reasons of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected; and preference shall be given to women.

The guidelines to persuade parties to arrive at a settlement, including duty of a Judge and simplification of procedure to achieve the object of the Statute are contained in Chapter IV of the Act. For easy reference, Sections 9(1), (2), 10(3), 12, 14 and 15, which are relevant, are extracted:

9. Duty of Family Court to make efforts for settlement. (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.

(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.

10. Procedure generally:-

(1) ...........

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

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by the other.

12. Assistance of medical and welfare experts:  In every suit or proceedings, it shall be open to a Family Court to secure the services of a medical expert or such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purposes of assisting the Family Court in discharging the functions imposed by this Act.

13. Application of Indian Evidence Act, 1872: A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872(1 of 1872).

14. Record of oral evidence:  In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record. 

Inadequacies of the Statute are not the reason for the transformation of Family Courts into ordinary courts. Due to explosion in number of cases, conciliation/settlement process has become a formality in most cases. It may not be incorrect to mention that many involved in the counselling process develop, over a course of time, lack of commitment to the cause of the Statute and society. They end up as automatons performing routine formality. It is desirable to assess performance of counsellors periodically with positive parameters and standards. Matrimonial cases being what they are, counselling a person with medical problems, of whatever nature, by a person not exposed to clinical side of the problem, will not be effective. To meet the situation, mediators who are aware of complexities of matrimonial relations, disputes and solutions are needed. Necessary rules permitting a different approach to the same problem will be most welcome and desirable. Mediation centres can be opened at each Family Court Centre, keeping in mind they are to unite couples and not untie them. Settlement in matrimonial causes should be with the object of resurrection of the marriage than of destruction of the same. There are practical difficulties in finding qualified, committed and experienced Judges as laid under S.4(4). The Judge may be committed to his work and sincere to the cause, but often, he may not have the required expertise. Expertise may come from experience, but that is not what is needed. We need professionally trained hands to deal with complex family disputes. Such training can be imparted by the Judicial Academy with the assistance of professional agencies. We have to bear in mind that we are dealing with a very sensitive area in human mind and the Academy has its institutional limitations.

Though S.15 directs that substance of the evidence alone need be recorded, in actual practice, the entire evidence is recorded word by word in Family Courts. The method of recording the substance of the evidence as in summary trials before Magistrate is not known to many Judicial Officers.

We have to remember that, in our India of the most ancient of cultures and religions, marriage was one of the four Aasramas in man’s life and that unless he was successful in fulfilling his marriage vows, he could not enter Sanyasa. Faithful or faithless, believer or unbeliever, modern or conventional, what can a failed species contribute to its own soul ?

In U.S.A., we find fault based and no-fault based divorce applications and doctrine of comparative rectitude, whereby court may award the divorce to the spouse whose fault is less serious. In U.K., we find divorce can be applied for on the ground of “Unreasonable behaviour”. Drawing parallels from other legal systems to enact laws first and then leave interpretation thereof them later to courts may be acceptable in other areas of human activity, but in the Indian matrimony sector, such exercises will only cause social acrimony.

We also notice the principle of 50-50 in Europe and other western countries where the couple is made to share their assets equally. Many lawyers in India do attempt to put the couple together again, but they are unable to play God to reunite them. At the same time, many more lawyers attempt to ensure that the couple never reconcile and foist litigation after litigation, for obvious reasons. In a small State like Kerala, the situation is alarming. In many other States, the situation is appalling.

It is heard that 50-50 proposal is being mooted in India also. The concept of manipulated marriage and engineered divorce is only likely to surge up thereby, whatever justifications one may offer for providing more user friendly facilities for divorce. Now-a-days, attachment has become just something that comes to you as Email, to be detached and erased at will. Should we permit marriage to be such a farce ?

Advocates have to express more social commitment and conscience in resolving family disputes. Professional dignity and morality apart, individual sense of right and wrong goes a long way in such cases. Modern human relations are complex. Simple acts and omissions create feeling of insecurity and lack of trust between newly married couples, which ultimately lead to bitterness and separation. Half-a-century ago, marriages were virtually “what God hath put together, let no man pull asunder”, though there were difficult husbands and wives then also. We claim that, unlike the West, we maintain stronger family ties. Separation of couples brings disaster to the family, especially children. Children need parents to imbibe true values. If not, they may fall prey to several undesirable traits, which have assumed more undesirable proportions in recent times. Let us make our Family Courts places to build relationships and not to break them. Let us explore methods to achieve the true object of the Family Courts Act.

In an age of nuclear families and “only child” syndrome, matrimony is one institution that has to survive on its own for the sake of tomorrow and not just today, helped by man and God. Many people think that Family Courts are meant for rescuing the female. Are they are not overlooking the "Henpecked" male?

Jai  Hind.

Difference between Customary Right and Customary Easement 

(By N.Subramaniam, Advocate, High Court of Kerala, Ernakulam)

1.   A customary right exists independently of any dominant heritage and is vested in a defined class or community or a particular locality, as distinguished from individual for their sole benefit.

AIR 1958 Patna 571 at 574 (Rajnandan Singh v. Ramkishor Lohar).

A customary easement cannot exist without there being a dominant and servient heritage.

2. A customary right exists in gross and does not exist for beneficial enjoyment of the other property. A customary easement cannot exist in gross but can exist only for the beneficial enjoyment of the land and is merely appurtenant to the dominant heritage.

(AIR 1933 Nagpur 74 (76) (Ganapat v. Narayan)

3. A customary right is claimed by a person or a group of persons on basis of custom recognized by the community as a whole. An easement is required to be acquired by particular modalities and customary easement vest in the dominant tenement, and not in the particular person or a group of persons, unless they are rightfully in possession of dominant tenement. (AIR 1991 Bom. 119 at 122. (Radhakrish Kanolkar v. Tukaram Pundlik Hamkhaaandi),

AIR 1938 Cal. 202 at 204 = 66 Cal. LJ 270 (Harisadhande v. Radhika Prasad).

4.   Customary right do not require two tenements as easements do. 12 Law Times 27 Mannasay Vismay.

5.   Customary rights are not easements. (AIR 1923 Cal. 200 at 201, 202, 203. (Ali Mohammed v. Sheikh Katu)

6.   Customary rights are not easementary rights and are excluded from Easement Act.

A valid and ancient custom which gives rise to property is called customary right. A custom is a rule of conduct which is observed by the persons concerned spontaneously, without the sanction of any express provision of the law, because it has been uniformly observed by the community for a sufficient long period of time. The cumulative repetition of the conduct of the community for a long passage of time gives birth to a custom emanating there from a customary right and a customary easement. Customary right is not the subject matter of the Indian Easements Act. The Indian Easements Act has left customary rights untouched in all respects.

AIR 1935 All. 891 (894) = 156 I.C. 942 (Miru v. Ramgopal), AIR 1969 Raj. 31 at 35 (Syed Habib v. Kamal Chand)

7. Law does not require any fixed period of enjoyment to establish customary rights, but the custom must be reasonable and certain (1895) ILR 17 All. 87 (Kuersen v. Mamman)

(1899) ILR 23 Bom. 666 (Mohix v. Shivalingappa)

AIR 1981 Patna 133 at 135. (Prabhavatidevi v. Mahendra Narayan Singh)

8. Though no fixed period of enjoyment has been laid down by law, as being necessary to establish a customary right, yet no right would be recognized as a customary, where the period of user is even less than the period required for establishment of a customary easement viz. 20 years.

AIR 1965 Mad. 378 at 381 (Karuppan Ambalam v. Karuppan Ambalam)

AIR 1927 Mad. 144 at 146 (Raghavalu Naidu v. Secretary of State)