After Death Benefits

(By S.A. Karim, Advocate, Vanchiyoor, Thiruvananthapuram)

In Central as well as State services, there is provision for after death benefits. Pension, Gratuity, Provident Fund, Insurance and the like are some of the after death benefits. In every case of death, after death benefits go to the legal heirs. Wife and children are the legal heirs of a married deceased. This is true in most of the cases. Parents become legal heirs, if the deceased is unmarried. Therefore, the heirship of the parents is a contingency.

Parents produce children, grow them, educate them, provide all facilities and make them fit for employment. Parents’ tension, sacrifice, suffering and involvement of money are immense. To grow one’s child better is the duty and responsibility of every parent. At this stage children are weak and parents strong in every respect. When children are employed in service, parents become old, very often sick and penniless. Every parent expects the children will took after them in their old days. Between the cup and lip unfortunate death intervenes. So, the expectation goes out of gear.

In such a contingency, the duty and responsibility of the children towards their parents is never reciprocated. Law is very harsh and cruel. In case of married children, after death benefits go to one’s wife and children. Parents are ignored and side lived. The parents who produce and grow the children have no right on the after death benefits of the deceased. In my view, it is a cruel situation. The parents of the deceased government servant deserve a share of the after death benefits of their deceased children.

What Ho ! Contempt

(By T.P. Kelu Nambiar, Sr.Advocate, High Court of Kerala)

I do not know, and could anybody tell me, whether any among the five Law Lords, namely Lord Reid, Lord Morris of Borth-y-Gest, Lord Diplock, Lord Simon of Glaisdale and Lord Cross of Chelsea, who rendered their opinions, in July 1973, in Attorney-General v. Times Newspapers Ltd., is still alive. If nobody is alive, they would turn in their graves to see the sad state of affairs; or, if alive, he/they would laugh at the situation. I am alluding to the media monopoly, the meddling by the media in Kerala with pending judicial proceedings, exploiting ignorant innocents, and opening the troubled road to justice, resulting in death before murder. We do not require a space telescope to capture the resultant image projected by the flourishing creativity of the media. Without trying to break around behind the back of the problem, let me boldly enter through the front door to unveil the distress signal to the legal profession and the judiciary. Is there dead law, like the Dead Sea.

I am impelled to write this by the off-court media show of, what is popularly known as, the Sister Abhaya case and the Jomon intrusion. Media managers are seen vying with each other to project the whys and wherefores and the right and wrong of the on-going in-court proceedings, as tall as Burj Dubai; media monopoly at its worst, with flair for recklessness and innovation. A full-dressed drama ! The actors/participants garnered by the newsmakers were Advocates appearing in the case and parties to the cause (facing exit interview), and lawyers and others unconnected with the case, projecting the picture of a ‘maya bazaar’. Surprisingly, I found a retired High Court Judge also, who is back to where he belonged, in a studio scene telecast, enjoying the joy of listening to his own sound, not realising what he is prone to lose to win, by chasing the Mark of Zorro. All the participants were trying to quarry strong opinions from their own mind. Lawyers were seen trying to turn judges. The media played super High Court. Pablo Picasso, if alive to see the scene, would have drawn a picture better than his famous Guernica on canvas.

The actions and attitude of the visual media and the members of the league of participants would show that the five learned Law Lords, top names in Judicial history, who decided the Times Newspapers case, were wasting their time by writing elaborate orders, handing down organic legal principles in re: contempt of court, providing answers to questions you know you didn’t have.

The ratio of the opinions rendered by their Lordships is: “It is contempt of court to publish material which prejudged the issue of pending litigation or is likely to cause public prejudgment of that issue”. I would draw attention of the readers to the elaborate discussion of the Times Newspapers case by Anthony Alridge, in his book ‘The Law of Contempt’.

Under the Contempt of Courts Act (Central Act 70 of 1971), it is criminal contempt to publish (whether by words, spoken or written, by signs, or by visible representations, or otherwise), any matter or to do any other act whatsoever which prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings, or interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any other manner.

The principle is stated to be that “administration of justice by an impartial and independent judiciary, which is trained to administer justice objectively is the basis of our system of jurisprudence, as it is the basis of jurisprudence of all the civilized societies; any undue interference with pending proceedings is, therefore, looked at with disfavour and is treated as contempt of court”. Further, “it is a well-known, and equally well understood, rule of law that all debates and expression of opinion on a question which is the subject-matter of dispute before a court should be hushed as long as the court is seized of the controversy. Where, however, the nature of the controversy itself has a broad sweep affecting a very large section of people and is not confined to contesting parties only, then in such a case the court should take notice of only such comments which pointedly refer to the proceedings before it and which way be construed to interfere with the judicial process. If a particular comment on the question directly refers to the contending parties before a court and if any criticism is offered which pointedly amounts to taking sides in the dispute before the court, in such a case, the court may treat the comment as amounting to contempt”. This is how Jagadish Swarup has garnered the principles in his book on the Contempt of Courts Act.

The television magic and the ‘go High Court’ mania of T.V.Channels which we saw when the Abhaya case was going on in the Hon’ble High Court for a few days, was a big legal disaster. The participants should have known that the High Court is not the Herrods of Kochi and what was going on in court was not a sesquicentennial festival, but serious judicial proceedings, requiring polishing of legal skills, which should never have been made the subject of media drama outside, through play on wheels; media playing competitive.

The media, the appearing counsel, the concerned parties, the ‘disappearing’ lawyers and the former judge, who appeared in the performing art, constituted the commercial law cloners. This aspect should sparkle a debate. We have to ask some tough questions to ourselves. Lawyers have to reclaim themselves. For escaping proceedings under the Contempt of Courts Act, the provisions of the Act and the Rules will have to be re-written. The leaders of the bar should speak by holding a law summit. But where have all the leaders of the bar gone ? I ask the question with a sense of wonder.

The participants in the media show were verily crossing the LOC (Line of Contempt) by venturing strong views against the observations and orders of the presiding judge. Even the appearing counsel were seen opinionated. And, they all were mis-fuelling, when the proceedings were pending. What ho ! Contempt. For a clear answer, brood over the matter sitting for some time under the green-wood tree.

I should hope that the subject-matter of this write-up would be noticed by the Hon’ble Chief Justice, the Hon’ble Judges, the Judicial Officers of all courts, the learned Advocate-General and the Advocates Associations.

Iran Adultery and Indian Adultery

(By S.A. Karim, Advocate Vanchiyoor, Thiruvananthapuram)

In Iran stoning till death is the punishment for adultery. There Volunteer Lawyer’s Net- work has voiced concern about the harsh punishment. So Iran Judiciary has decided to scrap stoning till death and replace it with either whip lash or jail term. 

S.497, Indian Penal Code speaks about adultery in India. It reads -

“Whoever has sexual intercourse with a person, who is and whom he knows or has reason to believe to be wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case the wife shall not be punishable as an abettor”.

In Iran both man and woman are liable to punishment. It may be stoning till death or whip lash or jail term. In India man alone is liable to punishment for five years, or with fine or with both.

“Matrimony today is not merely an arrangement of convenience for exhausting biological, physical and carnal urges without offending the norms of morality of the given age. Spouses today are not merely machines in the assembly line of production to perpetuate the human race on this planet. Marriage in the modern era is an arrangement of lasting friendship, partnership, mutual complementarity, affection, love, support, caring and sharing between two adult equal partners of different sex.”

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Justice R. Basant in Aboobacker v. Rahiyanath.

The decision Aboobacker v. Rahiyanath reported in (2008 (3) KLT 482) rendered by Justice R. Basant is an outstanding Judgment. It sets at rest the confusion faced by the Magistrates in fixing the quantum of fair and reasonable provision and maintenance occurring in S. 3 of the Muslim Women’s (Protection of Rights on Divorce) Act, 1986 and the impact of remarriage of the divorced wife on the quantification when it is brought to the notice of the Court. The Judgment is lucidly written in the characteristic words and phrases, style of language and above all with the analytical wisdom of his Lordship. It can be effortlessly read as it is reader friendly. A Muslim Woman in her teens was married by her husband. The marriage sailed in fair weather for a long time of 16 years. The pity was that she did not conceive a child. She is a teacher by profession. Both husband and wife pooled their income, invested and revelled ahead happily. Then came the bolt from the blue. Husband wanted a second marriage to have a child. He asked her permission. She refused. He brandished the weapon of unilateral pronouncement of Talaq which ruptured and snapped the matrimonial tie. She was pushed into the lurch with trauma. She approached the Magistrate. Magistrate granted fair and reasonable provision and maintenance to her under S.3 of the Act. Revision preferred by the husband only modified the quantum that too slightly. After the disposal of the revision she remarried. Husband approached the High Court invoking S.482 Cr.P.C. challenging the quantification. He urged two points before the High Court. The quantum of fair and reasonable provision and maintenance is excessive. Second point is that the divorced wife having remarried after the revision is not entitled for anything more than maintenance till the date of remarriage.

Justice Basant after formulating a lot of questions started to answer them gently but firmly. Hitherto before the Magistrates no authoritative pronouncements were cited to canvass the proposition as to what principles must be followed by the Courts while quantifying the fair and reasonable provision and maintenance to be made and paid during the period of iddat under S.3(1)(a) of the Act? It was also not brought to the attention of the Magistrates any authority showing the impact or not of remarriage of the divorced wife pending proceedings under S.3 of the Act on the quantification procedure. As a result some were following the multiplier multiplicand method which according to this writer is not a reasonable method in all cases. This is because fair and reasonable provision and maintenance amount which is made and paid under S. 3 of the Act is for the welfare of the lady for the rest of her life. Some were taking into consideration the economic background of the spouses, the status of life followed by the wife at her parental house immediately before the marriage, social status of the spouses, educational and cultural back ground etc. which appear to be somewhat reasonable if the matter is explained in the order fixing quantum after appreciating evidence. The third method was simply a guess work according to the subjective satisfaction of the Magistrate. This has led sometimes to injustice as the quantum varied as and when the Magistrate is changed. Now regarding the impact of remarriage, the writer honestly believes, most of the Magistrates thought that it had an impact on the quantification. It was believed that the Muslim husband does not have any legal obligation to maintain the divorced wife after iddat. Further, it was thought that soon on the remarriage of the wife, the relationship ends and the husband becomes a stranger to the wife and vice versa. This thoughts will have some lingering effects, so that, some fell for it and reduced the quantum accordingly till the period of remarriage. Now all this diversity has come to an end by Aboobacker v. Rahiyanath.

After Scholarly expounding into the Quaranic Verses and its appropriate translations, his Lordship unfolded the effect and implication of the Act. The learned Judge has made a telescopic as well as microscopic scan through the authoritarian Islam texts and Quaranic Verses for arriving at the right destination of S. 3 of the Act. The Judge held that as follows:

 “Every Muslim has a righteous duty to pay ‘Mata’ to his divorced wife. Whatever be the translation of Mata, it is crystallized into a legal obligation and right under S.3 of the Act. The payment has to be made. The payment under S. 3 of the Act is to be made during the period of iddat. Call it gift, provision or maintenance, the accent in ‘Ayat 241’ and S.3 of the Act is on the payment (making a provision) of a lump sum amount and on that being on a reasonable scale. The payment has to be reasonable. Islam in its vibrant humanism prescribes that the divorced husband has to make payment of a reasonable amount as ‘Mata’. Conscious of the fact that revelations made to the prophet have to stand the test of time and space, the elastic expression reasonable has been used in the divine law. What that reasonable gift or payment has to be ascertained whether under the pristine Islamic law or under the personal law explained and amplified under S.3 of the Act. The suitable gift or reasonable payment has to be ascertained conscious of the time, space and factual realities of the society in which the wife, the divorced husband and the society around them exist as also the facts of a given case. The piety which Islam expects from the righteous and faithful must be reflected in the ascertainment of the quantum”.

The well founded reasoning extracted supra after going in detail into the Quaranic Verses and authoritative text books of Islamic Law, the learned Judge cleverly transposed his personal outlook, concept and philosophy into the expression reasonable and fair provision and maintenance occurring in S. 3 of the Act. No Judge can ignore his personal philosophy when such a vital and vibrant social issue is knocking on his conscience. To quote Michael Kirby “ Decision making is a complex function containing logic and emotion, rational application of intelligence and reason, intuitive responses to experience as well as physiological and psychological forces of which the decision maker may be only partly aware”. Indeed the interpretation unfolded the Act and its perspective in a humane and humanistic outlook.

One cannot forget Shabano’s case, Justice V.R.Krishna Iyer and Late Chief Justice Y.V.Chandrachud who with their wise interpretation infiltrated this kind of progressional concept into Islamic personal law and its interpretations by Courts. Supreme Court held in Shabano that although the Muslim Law limits the husband’s liability to provide for maintenance of the divorced wife to the period of iddat, it does not contemplate or countenance the situation envisaged by S.125 of the Cr. P.C. The decision made a hue and cry across the country which paved the way for enacting, the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Act which wanted to eclipse the effect of Shabano indeed showered more rights on the divorced woman. It made a right on the divorced Muslim Woman to claim for a reasonable and fair provision and maintenance within the period of iddat by her former husband. This was made in line and length of the ‘Shariat Law’ as interpreted by the Islam Scholars recognized by the Apex Court.

Thus Aboobacker not only gives a solace to the divorced Muslim Women who are living in lurches and trauma, but also gives the protection of a strong arm of law. Let the decision and its benevolence last long living in posterity.

Line of Control

(By Rajesh V. Nair, Advocate, Thalassery)

We all knew that Aarushi and her servant were murdered. The C.B.I. arrested the accused and released Aarushi’s father, whom police had indicted as accused for killing his daughter and servant. Aarushi’s father had been to jail for 50 days for killing his own daughter. Before completing the investigation, the print and visual media portrayed Aarushi’s father was the real killer and further projected the girl to an extreme extent, despite the fact the she was only 13 years old. The police was also equally responsible for projecting the innocent girl to be a pervert.

When the investigation of murder was started, the e-mails exchanged between Aarushi and her friends, which came to the custody of police were released to print and visual media and they displayed the same in public. The character assassination of the small girl by the print and visual media not only dented the reputation of the girl but her family too. The print and media should have restrained itself from making the e-mails in public as the matter was sub-judice.

Should we need a law to hold police, print and visual media responsible for damaging the reputation of a small girl in public? Apart of which, print and visual media acted in clear violation of norm’s stated by Press Council of India. The print and visual media should have restrain from publishing Aarushi as worst character in public. The press and media should be under scrutiny for the matter, which they report.

Currently the television channels project some important cases in public and ask the viewers to send SMS to them. In many cases print and visual media begin their trail of the cases in public disregarding the fact that accused are presumed to be innocent until the guilt is proved. These kinds of actions would clearly influence the Judges, who are hearing the cases. The print and visual media can not be allowed to sit in judgments of the cases. There must be a line of control between reporting facts and expressing opinion on them.

There are enough laws in India from projecting or depicting women in an indecent manner. The Aarushi’s case is a classic example for which print and visual media are responsible for exposing an innocent girl as easy virtue in public. The trauma faced by the Aarushi’s family is inconsolable.

So, we need a powerful law to control the indecent way of exhibiting women in public. The print and visual media should be saddled with huge compensation of reporting and projecting women in indecent ways.