Speedy and fair Trial -- Setting up of Fast Track Courts for

S.138 of Negotiable Instruments Act

(By Dr. Justice AR.Lakshmanan, Former Judge, Supreme Court of India, 

Chairman, Law Commission of India)

 

1. The value of a cheque, which was reduced to merely a piece of paper, particularly amongst the business community, has been greatly enhanced since the introduction of a new Chapter XVII (Ss.138 to 147) relating to penalties in case of dishonour of certain cheques for insufficiency of funds in the accounts. The implementation of these provisions for nearly 15 years revealed certain shortcomings which have been endeavoured to be plugged by the Negotiable instruments (Amendment & Miscellaneous Provisions) Act, 2002.

 

2. The law relating to negotiable instruments is not the law of one country or of one nation; it is the law of the commercial world in general, for, it consists of “certain principles of equity and usages of trade which general convenience and common sense of justice had established to regulate the dealings of merchants and mariners in all the commercial countries of the civilized world”. Even now the laws of several countries in Europe are, at least so far as general principles are concerned, similar in many respects. Of course, on questions of detail, different countries have solved the various problems in different ways, but the essentials are the same, and this similarity of law is a pre-requisite for the vast international transactions that are carried on among the different countries. 

 

3. In India, there is reason to believe that instruments of exchange were in use from early times and we find that papers representing money were introduced in to the country by one of the Muhammadan sovereigns of Delhi in the early part of the fourteenth century, the idea having been borrowed from China; and it is the accepted theory of the western savants, that in China a complete system of paper-currency and banking had been developed as early as the tenth century and it is not improbable that such an idea filtered into India sometime later.

 

4. Before the passing of the Act, the law of negotiable instruments as prevalent in England was applied by the courts in India when any question relating to such instruments arose between Europeans.

 

Ingredients of the offence

 

5. To constitute an offence under S.138 of the Negotiable Instruments Act the following ingredients need to be fulfilled:

 

1. Cheque should have been issued for the discharge, in whole or part, of any debt or other liability.

 

2. The cheque should have been presented within the period of six months or within the period of its validity, whichever is earlier.

 

     Note. - The cheque may be presented any number of times for collection within its validity.

 

3. The payee or the holder in due course should have issued a notice in writing to the drawer within thirty (fifteen prior to 2002 amendments) days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.

 

4. After the receipt of the said notice by the payee or the holder in due course, the drawer should have failed to pay the cheque amount within fifteen days of the receipt of the said notice.

 

   Note: Notice of dishonour is unnecessary when the party entitled to notice cannot after due search be found (See S.98, Negotiable Instruments Act).

 

5. On non-payment of the amount due to the dishonoured cheque within fifteen days of the receipt of the notice by the drawer, the complaint should have been filed within one month from the date of expiry of the grace time of fifteen days, before a Metropolitan Magistrate or not below the rank of Judicial Magistrate of the first class. The cognizance of a complaint may be taken by the Court after the prescribed period, if the complaint satisfies the Court that he had sufficient cause for not making a complaint within such period.

 

6. The offence under this Act is compoundable (inserted by the 2002 Amendment Act).

 

6. Under law, when a person has tendered the amount payable by him he must be deemed to have discharged his obligation and the creditor is bound to accept the tender. Where on dishonour of cheque issued by the accused, the party disclaimed the liability to pay the cheque but on receiving notice tendered payment of the whole amount twice in front of the court but the complainant refused to accept it both the times, the accused could not be said to be guilty of non-payment of the amount.

 

7. The above position is again reiterated by the Apex Court in Indira (K.R.) v. Adinarayana (Dr. G.), what follows therefrom is that the last ingreditent to complete an offence under S.138 of the Act is failure of the accused to make payment within 15 days after service of notice. If payment is made within the said notice period then no offence is committed but in case of failure the offence gets completed. Even if the payment is made on the 16th day the same is not sufficient to come out of the rigours of S.138 of the Act. In Criminal law, commission of offence is one thing and prosecution is quite another. Commission of offence is governed by S.138 of the Act. Prosecution is governed by S.142 of the Act.

 

Trial of Offence; Summary Procedure

 

8. Provisions of S.143 as inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 state that the trial in a case filed under S.138 of the Act shall be tried in a summary manner. Though it begins with a non-obstante clause carving out an exception to the provisions of the Criminal Procedure Code, sub-s.(1) thereof clearly provides that the provisions of Ss.262 and 265 of the Code, as far as may be, applied to such trials. It empowers the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine not exceeding five thousand rupees. It also provides that if it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed, he can do so after hearing the parties and recalling any witness who may have been examined. Under this provision so far as practicable, the Magistrate is expected to conduct the trial on day-to-day basis until its conclusion and conclude the trial within six months from the date of filing of the complaint.

 

9. Chap.XXI of the Criminal Procedure Code, consisting of Ss.260 to 265, deal with the procedure to be followed when the case is being tried summarily. In every case tried summarily, in which accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. Successor Magistrate can act on the evidence recorded by his predecessor either in whole or in part. There is no need to conduct the retrial or de novo trial, where the cases were conducted as summons or warrant cases. Therefore, if the Magistrate records the evidence, as is done in regular summons case the succeeding Magistrate can act on the evidence so recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself.

 

10. If a case under S.138 of the Negotiable Instruments Act, which requires to be tried in a summary way as contemplated under S.143 of the Act, is in fact, was tried as regular summons case it would not come within the purview of S.326(3) of the Code of Criminal Procedure. In other words, if the case in substance was not tried in a summary way, though was triable summarily, and was tried as regular summons case, it need not be heard de novo and succeeding Magistrate can follow the procedure contemplated under S.326(1) of the Code. However, a case tried in a summary way by following the procedure contemplated by the provisions of Chap.XXI of the Code, and in particular Ss.263 and 264 therein, alone is intended to be excluded from the purview of S.326 of the Code.

 

11. In a recent case, the entire evidence was recorded by one Magistrate and the judgment was delivered by another Magistrate. The evidence recorded by the Magistrate was full-fledged evidence led by the parties and admittedly, it was not in the form indicated in S.264 of the Code. The case was not tried in a summary way and was in fact tried as regular summons case through it was triable summarily under S.143 of the Act. The objection raised by the accused was held not sustainable.

 

Punishment

 

12. (a) Prior to 6.2.2003.--The person committing an offence under this section, without prejudice to any other provision of the Act, was liable to be punished with imprisonment for a term which may extend to one year, or fine which may extend to twice the amount of the cheque or with both.

 

13. (b) On and from 6.2.2003.--S.138 has been amended by the Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002. It enhances the punishment for dishonour of cheque from “a term which may extend to one year” to “a term which may extend to two years”, w.e.f. 6.2.2003.

 

14. As held by the Supreme Court, the non-obstante limb provided in S.142 of the Act is not intended to expand the powers of a Magistrate of first class beyond what is fixed in Chapter III of the Criminal Procedure Code. S.29, which falls within Chap.III of the Code, contains a limit for a Magistrate of first class in the matter of imposing a sentence. If the sentence is imprisonment it shall not exceed 3 years and if the sentence is fine (even if it is a part of the sentence) it shall not exceed Rs.5,000. When the case has ended in conviction, it would be obligatory for the court to award a compensation that would be commensurate with legal principles of fair play which should not be less than the fact value of the cheque, the interest computed at 18% per annum and the costs that may be computed by the court. The legislature has provided for the upper limit of twice the face value of the cheque.

 

Compounding of offence

 

15. By inserting S.147 in the Negotiable Instruments Act by the Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002 w.e.f. 6.2.2003, offence punishable under S.138 of the Act has been made compoundable and it does not provide for any other or further qualification or embargo like sub-s. (2) of S.320, Cr. P.C. The parties can compound the offence as if the offence is otherwise compoundable. Thus, the offence is made straightway compoundable like the case described under sub-s. (1) of S.320, Cr. P.C. No formal permission to compound the offence is required to be sought for.

 

16. Even prior thereto the opinions expressed by different High Courts and also the Apex Court appear to be in favour of approving such compounding and settlement between the parties, taking into consideration the aim and object of the provisions of the Act. Therefore, the matter in relation to which the cheque had been issued had been settled between the parties and inasmuch as such settlement may have to be given effect to keeping in mind, the object of introducing the relevant provisions of the Act, the court can note the same and record the settlement between the parties.

 

Delay in Disposal of Cases; Practice and Procedure

 

17. The object and inherent intention of enacting the said provisions is that the legislature was extremely keen and anxious in ensuring expeditious disposal of cases pertaining to dishonouring of cheques. It has been emphasized that the courts have to give meaning and translate the legislative intention of the Parliament. The Courts must adopt suitable and effective procedure to achieve the legislative objects. The Courts procedure also has to be designed to fulfill the object and intention behind incorporating the said provisions. In other words, it is the obligation of the courts to develop or carve out the procedure by which the complaints filed under these provisions are disposed of as expeditiously as possible. As observed and advised by the Bombay High Court:

 

(a) Experience reveals that enormous time is spent at the stage of summoning/serving the accused. The court must adopt pragmatic methods and must serve them by all possible means of service, including e-mail. The Court must ensure that the accused are not permitted to abuse the system.

 

(b) The Court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complaints must be concluded within three months of assigning the case.

 

(c) Complaints must be disposed of as expeditiously as possible, and in any event, within six months from the date when the presence of the accused has been secured.

 

ACCESS TO JUSTICE

(Courtesy: Voice of Justice, Vol. I by Dr. Justice AR. Lakshmanan)

 

18. The Constitution of India guarantees to all its citizens rights of life and personal liberty, right to equality, right to freedom etc. Apart from these public rights, there are various private rights arising from torts and contracts and also the various social welfare legislations such as Contract Labour (Regulation and Abolition) Act, 1976, Equal Remuneration Act, Minimum Wages Act and so on. But these rights are of no avail if an individual has no means to get them enforced. Rule of law envisages that all men are equal before law. All have equal rights but unfortunately all cannot enjoy the rights equally. The enforcement of the rights has to be through the courts, but judicial procedure is very complex, costly and dilatory putting the poor persons at a distance.

 

19. The Constitution of India through Art.14 guarantees equality before law and equal protection of laws. It follows from this that equal opportunity must also be afforded for access to justice. It is not sufficient that law treats all persons equally, irrespective of the prevalent inequalities. But law must function in such a way that all the people have access to justice in spite of the economic disparities. The word ‘access to justice’ focus on two basic purposes of the legal system. 

 

1. the system must be equally accessible to all.

2. it must lead to results that are individually and socially just.

 

20. Traditional concept of “access to justice” as understood by common man is access to courts of law. For a common man a court is the place where justice is meted out. But the courts have become inaccessible due to various barriers such as poverty, social and political backwardness, illiteracy and ignorance etc.

 

21. To get justice through courts one must go through the complex and costly procedures of litigation. One has to bear the costs of litigation including court fee, stamp duties etc and also the lawyers fees. Apart from these the litigant looses much more in financial terms such as loss of income arising from attending the court hearings. A poor litigant who is barely able to feed himself will never be able to get justice or obtaining redress for a wrong done to him through courts. Further a large part of the population in India is illiterate and live in object poverty. Therefore they are totally ignorant about the court procedures and will be terrified and confused when faced with the judicial machinery. Thus most of the citizens of India are not in a position to enforce their rights, constitutional or legal, which in effect generates inequality contrary to the guarantees of Part III of the constitution.

 

22. Large population, more litigation and lack of adequate infrastructure are the major factors that hamper our justice system. Regular adjudication procedures through the constant efforts of Legal Services Authorities will act as catalysts in curing these maladies of our system. 

 

23. Time has come to think to provide a forum for the poor and needy people who approached the law Courts to redress their grievance speedily. As we all know the delay in disposal of cases in law Court, for whatever reason it may be, has really defeated the purchase for which the people approach the Courts to their redressal. Justice delayed is justice buried. So we will have to find out a via media between these two to render social justice to the poor and needy who wants to seek their grievance redressed through Law Courts.

 

24. The Constitutional promise of securing to all its citizens justice, social, economic and political as promised in the Preamble of the Constitution cannot be realised unless the three organs of the State i.e. legislature, executive and judiciary join together to find ways and means for providing to the Indian poor equal access to its justice system.

 

25. The judiciary has tried to do this through Public Interest Litigation movement but this movement has now lost much of its momentum. The executive is balking at enforcing the courts orders in Public Interest Litigation cases. The persons undertaking PIL cases are misusing the opportunity provided or they are not able to fully utilise the opportunity.

 

26. The speedy trail is guaranteed under Art.21 of the Constitution of India. Any delay in expeditious disposal of criminal trial infringes on the right to life and liberty guaranteed under Art.21 of the Constitution of India. The debate on judicial arrears has thrown up number of ideas on how the judiciary can set its own house in order. Alarmed by the backlog of inordinate delay in disposal of cases, Fast Track Courts or Special Courts have to be constituted. Thus, Fast Track Courts are to tackle the S.138 cases as the graph of such pendency is very high and alarming. It is high time to restore the confidence of people in this country in judiciary by providing speedy justice.

 

27. Infrastructure for the Fast Track Courts is to be provided by the State Government and the selection of the Judges is to be made by the High Court. The scheme includes construction of new Court rooms, appointment of ad hoc judges, Public Prosecutors and supporting staff and arrangement for quick processors. Though it is appropriate to have our in-service Judicial Officers to be appointed in these Courts, after giving them promotions on purely temporary ad hoc basis initially for two years, extendable by another two years or till they are promoted on regular basis, these appointments shall be made as far as possible only in Fast Track Courts. Their future regular promotion shall depend on their performance in these Courts. Those Officers who are not found fit to travel on fast track, shall be off-loaded and sent back to their regular cadre. It is a joint venture of the Central Government, State Government and the High Court to tackle the problem on war footing. It is needless to say that realization of real justice needs co­operation of all the three wings of the Government with one single aim to reach out justice to individuals and thus, maintain rule of law. Interaction between the three wings of the Government is necessary to improve the justice delivery system and such co-operation should be seen in day-to-day dispensation of justice. Sessions trials in several Courts in the country are held up because of unwanted adjournments on just asking either by the defence counsel or Public Prosecutor, not examining the witnesses within the scheduled time and the non-co-operation of the prosecuting agency. There is a general complaint that the Police has no sufficient time or force to serve in time the summons on the witnesses and keep the under trial prisoners present in the Court at the time of trial. There are instances coming to light that the offenders are sentenced but sentences imposed, are not executed because the convicts had already jumped bail and the police has no will and time to search them out.

 

28. The Law Commission earnestly request all the Presiding Officers of the Fast Track Courts and the Staff Members, Lawyers and prosecuting agency to extend their unrestricted co-operation in achieving the goal and to clear backlog of lakhs and lakhs of S.138 cases pending throughout India in all Magistrate Courts.

 

29. It is not uncommon for any criminal case to drag on for years. During this time, the accused travels from the zone of “anguish” to zone of “sympathy”. The witnesses are either won over by muscle or money power or they become sympathetic to the accused. As a result, they turn hostile and prosecution fails. In some cases, the recollection becomes fade or the witnesses die. Thus, long delay in Courts causes great hardship not only to the accused but even to the victim and the State. The accused, who is not let out on bail, may sit in jail for number of months or even years awaiting conclusion of the trial. Thus, effort is required to be made to improve the management of the prosecution in order to increase the certainty of conviction and punishment for most serious offenders. It is experienced that there is increasing laxity in the Court work by the police personnel, empowered to investigate the case.

 

30. Judiciary today is more deserving of public confidence than ever before. The judiciary has a special role to play in the task of achieving socio-economic goals enshrined in the Constitution while maintaining their aloofness and independence the Judges have to be aware of the social changes in the task of achieving socio-economic justice for the people.

 

Justice at Easy Reach

 

31. The Indian Judicial system is constantly exposed to new challenges, new dimensions and new signals and has to survive in a world in which perhaps the only real certainty is that the circumstances of tomorrow will not be the same as those of today.

 

The need of the hour is to correct misconception about the Judiciary by making it more accessible and more explicit, by utilizing the resources available to improve the service to the public, by reducing delays and making courts more efficient and less daunting.

(Courtesy: Voice of Justice, Vol.II by Dr.Justice AR.Lakshmanan)

32. The criminal justice system in the country is designed to protect the citizens of this country from the onslaught of criminal activities of a section of the community which indulges in such acts. The outcome of any criminal justice system must be to inspire confidence and create an attitude of respect for the rule of law. An efficient criminal justice system is one of the cornerstones of good governance. When we think of criminal justice system it consists of the police, prosecuting agency, various courts, the jail and the host of other institutions connected with the system. The State as a guardian of fundamental rights of its citizens is duty-bound to ensure speedy trial and avoid excessively long delays in trial of criminal cases that could result in grave miscarriage of justice. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. But, unfortunately, there are a large number of cases pending in various courts. Various factors contribute to large pendency of criminal cases in the subordinate courts. Speedy trial of criminal cases should be recognized as an urgent need of the present judicial system in order to decide the fate of lakh of litigants. It will help enhance the faith of general public in the present judicial system. In order to have a strong socio-economic system, it is important that each and every state of trial of an accused should move at reasonably fast pace. Speedy trial ensures that a society is free of such vices. The new system of plea bargaining incorporated in the Criminal Procedure Code shall be available to the under-trial prisoners and the court and the prosecuting agency and the lawyers should make them aware of the benefits of the benevolent provision incorporated in our statute.

 

33. The challenges before the criminal justice system are to balance the rights of the accused while dispensing speedy and effective justice. The criminal justice system machinery must also meet the challenge of effectively dealing with the emerging forms of crime and behaviour of the criminals.

 

34. On many occasions, delay in the process of trial is caused by the accused themselves. The accused know that any delay in trial would only help him as the memory of the witnesses is likely to be blurred by the passage of time.

 

35. In the trial of criminal cases a Judge should be a little more active and he can contribute to a great extent in preventing the delay in the administration of justice. On many occasions the Sessions Judges adjourn the cases for long period and the delay is thus caused and many witnesses who would have supported the prosecution case lose interest in the case and often forget the ethical duty cast on them.

 

36. In most of the cases, the blame for delay in administration of criminal justice system is put at the door of the courts. Courts are over congested with petty cases and many legislations are being enacted which result in filing of large number of cases before the courts. Inclusion of additional forms of crime, for example, S.138 cases under the Negotiable Instruments Act or S.498A in the Indian Penal Code, contributed a large number of cases in the criminal courts. Some of the new legislations like, Domestic Violence (Prevention) Act, have come up which contribute some more cases to the criminal courts. To deal with these types of cases we do not have additional number of courts, we do not have additional infrastructure. In many States sufficient budgetary provisions are not made for improving the infrastructure of the subordinate courts, including additional improvement of existing courts, court complexes.

 

37. We require modernization and computerization of our criminal justice system. In many States courts are functioning from rented places. The building which was constructed for the purpose of residence is being used to house courts. There should be sufficient sitting arrangement for the witnesses or the clients. There should be suitable building for the proper functioning of the courts. The prosecuting agency should be given sufficient facilities for the court to conduct the cases. The accused and the witnesses should have resting rooms if the trial has become lengthy. All this could be provided only if there are courts with modern facilities. The States should gradually improve the infrastructure and there must be sufficient budgetary allocation in each year. Now the courts are provided only with budgetary allocation for the payment of salaries of staff members of the courts and for day-to-day expenses for running the courts. This situation could be changed, if sufficient funds are allocated every year for starting new courts and also to improve the conditions of the existing courts. The starting of Fast Track Courts have helped to a great extent in disposing of the pending Sessions cases and that, by itself, has proved that it is because of lack of large number of courts that the pendency of criminal cases is on the rise.

 

38. Regarding de-congestion, greater responsibility lies on the shoulders of Governments of State or Centre. They are biggest litigants in the courts. They should approach the courts or contest cases only if necessary and not just to pass on the buck or contest for sake of contesting. The time consumed in most of the cases by Courts of Sessions is somewhat under control and the most of the cases are decided in a reasonable time schedule. Main problem is about huge pendency in Magisterial Court and the High Courts. It is absolutely essential to have additional Courts for specifically trying the complaint cases filed under S.138 of the Negotiable Instruments Act. The present state of affairs defeats the very object with which the provision was inserted in the Negotiable Instruments Act. Further, large numbers of petty offence cases have to be taken out of the normal court channel to be decided by the Special Magistrates by appointing the retired officers as Special Magistrate. 

 

39. Dishonoring the Cheque is crime in India. But we hardly see any people are punished for bouncing the Cheques. People do not trust the Bank Cheques. But in developed countries, it is common practice to use Cheques as a mode of payment. Retail shops will accept Cheques even to the stranger because bouncing the cheque will spoil the credit history. No one dare to dishonor the Cheque. We have to implement the same in India too. If any person dishonors the cheque (3 times), his Bank account should be closed automatically. Moreover he should not be allowed to handle the Cheque from any Banks in India for a year. (3 years maximum). This will fetch respect to our Bank Cheques.

 

40. The Supreme Court in the judgment reported in (2004 (3) KLT 93 (SC) = JT 2003 (9) SC 451) Goa Plast (P) Ltd. v. Chico Ursula D’Souza (Justice B.P. Singh and Dr. Justice AR. Lakshmanan), writing the judgment for the Bench, Dr. Justice AR. Lakshmanan while considering the objects and the ingredients in Ss.138 and 139 of the Act, has observed as under:

 

“The object and the ingredients under the provisions, in particular, Ss.138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. Undoubtedly, dishonour of a cheque by the Bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious set back. The Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee.

 

We, therefore, grant one month’s time from this date to the respondent herein to pay a sum of Rs.80,000/- (twice the amount of the cheque) by way of Demand Draft drawn in favour of the appellant and payable at Goa (in the address given in the paper book). In default thereof, the respondent shall suffer simple imprisonment for six months.”

 

41. Every one who is concerned with dispensation of Criminal justice is well aware of the oft-quoted phrase - “Justice delayed is justice denied”. The authorities who matter in this regard are very much concerned about this delay and are consistently trying to get rid our system of this menace. Almost all the Hon’ble Chief Justices of India have shown their concern towards delayed justice and had tried to find out the causes for the same and also suggested means and methods, in their own ways, to combat same was the concern shown by the Governments that be.

 

42. Legal experts are unanimous in their opinion that the present system of Criminal jurisprudence is destined to fail if the backlog of cases is not substantially reduced. The Law Commission of India has recommended a complete overhaul of the criminal justice system. They have exhorted for a radical change in the working of the law enforcement agencies, especially the police and the public prosecutors to contain such delays in the recent past. Recently, the Law Commission of India has mooted the concept of “plea-bargaining” - plea-trial negotiations between the accused and the prosecution in which if the accused agrees to plead guilty for the charges leveled against him he would get in exchange certain concessions as a quid pro quo, by taking a lenient view by the courts, particularly in cases of lesser gravity. Actually, the courts have been practically following such a practice, for several years, now.

 

43. A speedy trial is not only required to give quick justice but it is also an integral part of the Fundamental Right of life, liberty, as envisaged in Art.21 of the Constitution of India. Law Commission is putting forth few suggestions to identify and remedy the causes of such delays, in this report, of course, after identifying major hurdles and impediments which cause delay in the disposal of criminal cases.

 

44. Increase in the number of judicial officers will have to be accompanied by proportionate increase in the number of court rooms. The existing court buildings are grossly inadequate to meet even the existing requirements and their condition particularly in small towns and moffusils is pathetic. A visit to one of these courts would reveal the space constraints being faced by them, overcrowding of lawyers and litigants, lack of basic amenities such as regular water and electric supply and the most unhygienic and insanitary conditions prevailing therein. The National Commission to review the working of the Constitution noted that judicial administration in the country suffers from deficiencies due to lack of proper planned and adequate financial support for establishing more courts and providing them with adequate infrastructure. It is, therefore, necessary to phase out the old and outdated court buildings, replace them by standardized modern court buildings coupled with addition of more court rooms to the existing buildings and more court complexes.

 

45. On the recommendations of the 11th Finance Commission, Fast Track Courts of Sessions Judges were set up for disposal of long pending sessions and other cases. These courts have been quite successful in reducing the arrears. Most of the criminal cases in subordinate courts are pending at the level of Magistrates. Keeping in view the performance of Fast Track Courts of Session Judges, the Government of India should formulate a similar scheme for setting up Fast Track Courts of Magistrates in each State, as recommended by the previous Conference of Chief Ministers and Chief Justices held on 11.3.2006 for S.138 cases also.

 

46. In this era of globalization and rapid technological developments, which is affecting almost all economies and presenting the challenges and opportunities, judiciary cannot afford to lag behind and has to be fully prepared to meet the challenges of the age. It is heartening to note that use of information and communication technology in judicial is growing despite various constraints. Day-to-day management of courts at all levels can be simplified and improved through use of technology including availability of case-law and meeting administrative requirements. Congestion in court complex can also be substantially reduced through electronic dissemination of information. The objectives that can be achieved through use of technology include transparency of information, streamlining of judicial administration and reduction of cost. 

 

47. Litigation through the courts is just one way of resolving the disputes. Litigation as a method of dispute resolution leads to a win-lose situation leading to growth of animosity between the parties, which is not congenial for a peaceful society. We should, therefore, resort to alternative dispute resolution mechanisms such as negotiations, conciliation and mediation, in which nobody is a loser and all the parties feel satisfied at the end of the day. The main problem being faced in this regard is that there are not many trained mediators and conciliators. We need to impart training in mediation and conciliation not only to judicial officers but also to the lawyers. They will have to develop expertise to act as successful mediators and conciliators. We also need to provide adequate infrastructure for conciliation and mediation centres by giving them adequate space, manpower and other facilities. The Government being the biggest litigant needs to be fully involved in the process and its officers need to take lead in this cause.

 

Speech delivered by Hon’ble Mr. Justice K.G.Balakrishnan (C.J.I.) on 17th March 2007 at Vigyan Bhawan, New Delhi, on Administration of Criminal Justice System, reads thus; (paras 48-52)

 

48. The criminal justice system in the country is designed to protect the citizens of this country from the onslaught of criminal activities of a section of the community which indulges in such acts. The outcome of any criminal justice system must be to inspire confidence and create an attitude of respect for the rule of law. An efficient criminal justice system is one of the cornerstones of good governance. When we think of criminal justice system it consists of the police, prosecuting agency, various courts, the jail and the host of other institutions connected with the system. The State as a guardian of fundamental rights of its citizens is duty-bound to ensure speedy trial and avoid excessively long delays in trial of criminal cases that could result in grave miscarriage of justice. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. But, unfortunately, there are a large number of cases pending in various courts. There are a large number of under-trial prisoners in this country. Various factors contribute to large pendency of criminal cases in the subordinate courts. Speedy trial of criminal cases should be recognized as an urgent need of the present judicial system in order to decide the fate of lakh of litigants. It will help enhance the faith of general public in the present judicial system. In order to have a strong socio-economic system, it is important that each and every state of trial of an accused should move at reasonably fast pace.

 

49. The challenges before the criminal justice system are to balance the rights of the accused while dispensing speedy and effective justice. The criminal justice system machinery must also meet the challenge of effectively dealing with the emerging forms of crime and behaviour of the criminals.

 

50. In most of the cases, the blame for delay in administration of criminal justice system is put at the door of the courts. Courts are over congested with petty cases and many legislations are being enacted which result in filing of large number of cases before the courts. Inclusion of additional forms of crime, for example, S.138 cases under the Negotiable Instruments Act or S.498A in the Indian Penal Code, contributed a large number of cases in the criminal courts. Some of the new legislations like, Domestic Violence (Prevention) Act, have come up which contribute some more cases to the criminal courts. To deal with these types of cases we do not have additional number of courts, we do not have additional infrastructure. In many States sufficient budgetary provisions are not made for improving the infrastructure of the subordinate courts, including additional improvement of existing courts, court complexes.

 

51. The starting of Fast Track Courts have helped to a great extent in disposing of the pending Sessions cases and that, by itself, has proved that it is because of lack of large number of courts that the pendency of criminal cases is on the rise.

 

52. It is also important that we should give proper legal assistance to the poor and the needy. In most cases the accused in criminal cases are from the lower strata of society. Unless effective legal assistance is given to the accused there would always be a failure of justice. Now, the provisions of Criminal Procedure Code are used for providing legal assistance to the poor accused. On many occasions the service provided to them is not adequate. Unless adequate legal fees are provided the accused would not get the benefit of a better counsel. In spite of all the criticism directed against our criminal justice system, if we analyze the same it would be one of the best criminal justice delivery systems throughout the world. It is our duty to improve it to the best of our ability. 

 

Speech on Law Day by Justice R.C.Lahoti on 26.11.2004

 

53. Increasing institution of cases, mounting arrears, accumulating congestion in courts and inevitable law’s delays have given rise not to a body of scientific and rational blueprints in terms of institutional organization and procedural methods or in terms of assessments of judicial manpower requirements, but to a spate of alarm signals and dire shibboleths. If there are more and more cases in courts, that is because we have a population explosion, we have a more complex and friction-prone society, our dispute resolution and conciliation system are bereft of efficacy, we have increasingly greater awareness of rights, and perhaps because we have more injustice and more arbitrariness in our midst. The Governments are under an obligation to provide an adequate machinery for justice, to appoint more judges and to give them better emoluments and facilities, to build more courthouses, to enact better laws, to devise better dispute resolution procedures, and to administer more effectively and equitably, rather than to blame lawyers and judges for the increase and proliferation of litigation. Courts in India cannot apply a mechanical-statistical razor blade or wave a magic wand to wipe out the enormous pendency of arrears. Nor can the courts afford to turn a blind eye or a deaf ear to the rank injustices and incongruities of administration merely because they have already too much on their hands. If the courts begin to do that systematically, they might endanger the confidence and credibility they have come to enjoy. 

 

Right to a speedy trial

 

54. While the 6th Amendment to the US Constitution expressly states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”, our Constitution does not expressly declare this as a fundamental right. The right to a speedy trial was first recognized in the first Hussainara Khatoon case (AIR 1979 SC 1360 : (1980) 1 SCC 81); Surinder Singh v. State of Rajasthan, (2005) 7 SCC 387, wherein the court held that a speedy trial is implicit in the broad sweep and content of Art.21. In the second Hussainara Khatoon case (AIR 1979 SC 1360 : (1980) 1 SCC 81), the Supreme Court directed that all undertrial prisoners against whom charge sheets had not been filed within the limitation period should be released. In the third Hussainara Khatoon case (AIR 1979 SC 1369 : (1980) 1 SCC 98), the Supreme Court observed that the State could not avoid its constitutional obligation to provide for a speedy trial by pleading financial or administrative inability. Directions were issued for taking positive action like setting up new courts, providing more staff and equipment to courts, appointment of additional judges and other measures calculated to ensure speedy trial.

 

55. Subsequently, the importance of speedy trial has been repeatedly emphasized by the Supreme Court. State of Bihar v. Uma Shankar Kotriwal (AIR 1981 SC 641 = (1981) 1 SCC 75); Kadra Pahadiya v. State of Bihar (AIR 1982 SC 1167 : (1983) 2 SCC 104); State of Maharashtra v. Champalal Shah (AIR 1981 SC 1675 : (1981) 3 SCC 610); Guin S. v. Grindlays Bank (AIR 1986 SC 289 = (1986) 1 SCC 654); Sheela Barse v. Union of India (AIR 1986 SC 1773: (1986) 3 SCC 632); Raghubir Singh v. State of Bihar (AIR 1987 SC 149 : (1986) 4 SCC 481); Rakesh Saxena v. State (AIR 1987 SC 740 = 1986 Supp. SCC 505) (delay of six years); Srinivas Pal v. Union Territory of Arunachal Pradesh (AIR 1988 SC 1729 = (1988) 4 SCC 36); Surinder Singh v. State of Rajasthan ((2005) 7 SCC 387 : (2005) 8 JT 157); State of Andhra Pradesh v. P.V. Pavithran (AIR 1990 SC 1266 = (1990) 2 SCC 340). Most of the decisions until 1992 have been set out in the under-noted case which summarized 11 principles as guidelines applicable to a speedy trial. Abdul Rehman Antulay v. R.S. Nayak (AIR 1992 SC 1701, 1731: (1992) 1 SCC 225). This decision was held to be correct in Ramachandra Rao  P. v. State of Karnataka (2002 (2) KLT 189 (SC) = (2002) 4 SCC 578, 603 = AIR 2002 SC 1856). These guidelines are only illustrative and not exhaustive. They are not intended to operate as hard-and-fast rules or applied as a strait-jacket formula. Ramachandra Rao P. v. State of Karnataka (2002 (2) KLT 189 (SC) = (2002) 4 SCC 578, 603 : AIR 2002 SC 1956).

 

Right to a fair trial

 

56. A fair trial would obviously mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm (sic). Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses or the cause which is being tried is eliminated. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. Zahira Sheikh v. State of Gujarat (2004 (2) KLT SN 30 (C.No.36) SC = (2004) 4 SCC 158, 184, 187 = 2004 Supp (1) JT 94 (Best Bakery case).

 

57. Mr. Justice A.P. Shah, Chief Justice of Delhi High Court during the inaugural function of District Courts, in his address, has stated thus: “Citing “understaffed judiciary” as one of the main reasons, CJI said, “It is necessary to have qualified manpower for the system and the corresponding requirement would then be enough budgetary allocations for the set up.” Delhi High Court (H.C.) Chief Justice A.P. Shah talking about pending cases said, “Out of 7 lakh pending cases, more than 5 lakh cases relate to negotiable instruments (cheque bouncing). Each Metropolitan Magistrate (MM) is currently handling more than 3000 cases.”

 

58. Likewise, lakhs and lakhs of cases are pending in different courts throughout India. The litigant public are facing an alarming situation waiting for justice at the doorsteps of various Magistrate Courts. Every litigant in this country has a right to a speedy and fair trial. Hon’ble Chief Justice of India has in his speech stressed the need of creating more Courts to deal with S.138 cases under the Negotiable Instruments Act or S.498A in the Indian Penal Code.

 

59. The Supreme Court of India in its judgment reported in JT 2003 Vol.9 SC 451, Goa Plast Private Limited (Justice B.P. Singh and Dr. Justice AR. Lakshmanan) have stressed the object and the ingredients under the provisions in Ss.138 and 139 of the Act and the proper smooth functioning of all business transactions particularly of cheques as instruments. The Bench has also observed that the dishonour of a cheque by the Bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within the outside the country suffers a serious setback for foregoing reasons. The Law Commission of India has also recommended a complete overhaul of the criminal justice system and have exhorted for radical change in the working of the law enforcement agencies specially the Police and the Public Prosecutors to contain such delays in the recent past. A speedy trial is not only required to give equal justice within a specified period, it is also an integral part of the fundamental rights of life, liberty as envisaged in Art.21 of the Constitution of India. The 11th Finance Commission have recommended Fast Track Courts of Sessions Judge for disposal of long pending Sessions and other cases. These Courts have been quite successful in reducing the arrears. Keeping in view the alarming situation and the pendency of lakhs of cases in various Magistrate Courts throughout the length and breath of this country, Fast Track Courts should be set up as recommended by the previous Conference of the Chief Ministers and Chief Justices held on 11th March, 2006, for S.138 cases also.

 

60. The Law Commission of India is of the firm opinion that considering the alarming situation and the pendency of cases and the constitutional rights of a litigant for a speedy and fair trial, the Government of India should direct the State authorities for setting up of Fast Track Courts in the country, which alone in the opinion of the Law Commission, will solve the perennial problem of pendency of cases which are even in summary in nature.

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.”

.

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.