Does “Shymalavalli” require a second  look?

(R. Bhaskaran, Former Judge, Kerala High Court)

In Shyamalavalli Amma v. Kavalam Jisha (2007(3) KLT 270) a learned Single Judge of the Kerala High Court has held that solemnization of marriage is a pre-requisite to enable the illegitimate child to claim a share in his or her father’s properties after his death. Though it may be one of the possible views without reference to the binding precedents and principles of statutory interpretation, it is submitted that the other view is a better view having regard to the purpose of the enactment and judicial precedents.

Facts of the case:

The appellants are the widow and children of deceased Padmanabhan Nambiar. The 2nd respondent claimed to be the second wife of Padmanabhan Nambiar in a marriage solemnized on 21.6.1975 and the 1st respondent was born in that wedlock on 8.10.1976. The 1st respondent filed a suit for partition of the assets of Padmanabhan Nambiar. The Trial Court found that the 2nd marriage was not established by sufficient evidence. The plaintiff filed an appeal and the appellate Court found that the plaintiff was an illegitimate child of Padmanabhan Nambiar and was entitled to a decree for partition, and allowed the appeal. The finding of the Trial Court that there was no marriage ceremony proved was however upheld by the appellate Court also. In Second Appeal the learned single Judge clearly found that the plaintiff was an illegitimate child of Padmanabhan Nambiar. However his Lordship took note of the fact that 2nd  respondent did not challenge the finding of the Trial Court about the non-existence of a marriage ceremony and on the basis of concurrent finding of fact and absence of sufficient evidence confirmed that finding. Hence the question was considered on the basis of interpretation of S.16 of the Hindu Marriage Act and it was found that the existence of a marriage ceremony was a sine qua non for claiming a share by the illegitimate child.

Statutory provisions:

As per S.16 of the Hindu Marriage Act as it originally stood it was only in cases where a decree of nullity was granted under S.11 or 12 of the Act that a child begotten before such decree, was deemed to be a legitimate child. A Joint Committee constituted to look into the provisions of the Hindu Marriage Act indicated in its report that “in no case should children be regarded as illegitimate” and S.16 was amended by Act 68/1976 and as amended the section reads as follows: 

“16. Legitimacy of children of void and voidable marriages - (1) Notwithstanding that a marriage is null and void under S. 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976) and whether or not a decree of nullity is granted in respect of that marriage under this Act, whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2)  Where a decree of nullity is granted in respect of a voidable marriage under S.12,  any child begotten or conceived before the decree is made, who would have been legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3)  Nothing contained in sub-s.(1) or sub s.(2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under S.12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents”: 

Interpretation  of  statute  and  judicial  precedents

At first blush it is quite possible to come to the conclusion that it is only if the existence of a marriage ceremony is proved that the child can be treated as legitimate child under S. 16. The Apex Court in Kalliani Amma v. Devi (1996 (2) KLT 42 (SC)) was concerned with a question as to whether it was necessary to claim the benefit of S.16 of the Hindu Marriage Act that the marriage should be null and void under S.11 or was it not sufficient if the marriage was null and void under any prior law (Madras Marumakkathayam Act in that case). It is found that the unamended S.16 if literally interpreted would have left the Court with no choice except to declare it unconstitutional as it created two classes of illegitimate children and gave benefit to one class only. That defect was in fact taken away by the amendment. It is true that the question whether there should be a marriage ceremony by itself was not considered in that case directly. But the Supreme Court took note of the Joint Committee Report that in no case should children be regarded as illegitimate. It was also found in Para. 68 as follows:

"68. Hindu Marriage Act, 1955 is a beneficent legislation and, therefore, it has to be interpreted in such a manner as advances the object of legislation. The Act intends to bring about social reforms. Conferment of social status of legitimacy on a group of innocent children, who are otherwise treated as bastards, is the prime object of S.16."

Para.78 of the Judgment has put an end to the question whether it is necessary to link S.16 with S.11 of the Act. It reads as follows:

"78. The words “notwithstanding that a marriage is null and void under S.11” employed in S.16 (1) indicate undoubtedly the following:-

a) S.16(1) stands delinked from S.11.

b) Provisions of S.16 (1) which intend to confer legitimacy on children born of void marriages will operate with full vigour in spite of S.11 which nullified only those marriages which are held after the enactment of the Act and in the performance of which S.5 is contravened.

c) Benefits of legitimacy has been conferred upon the children born either before or after the date on which S.16 (1) was amended.

d) Mischief or the vice which was the basis of unconstitutionality of unamended S.16 has been effectively removed by amendment. 

e) S.16 (1) now stands on its own strength and operates independently of other sections with the result that it is constitutionally valid as it does not discriminate between illegitimate children similarly circumstanced and classifies them as one group for conferment of legitimacy.”

In the light of the clear finding by the learned single Judge that the plaintiff was an illegitimate child of deceased Padmanabhan Nambiar, is there any justification in denying her share merely because the marriage ceremony was not proved to the satisfaction of the Court?

Is it possible to think that Parliament was insisting on a marriage ceremony to be undergone as a precondition for legitimising the child who was otherwise illegitimate. If so, does not the provision still suffer from the vice of unreasonable classification of two groups of illegitimate children?

What is the effect of a marriage, which is “null and void”. It is as if there was no marriage at all in the eye of law. Does the ceremony alone survive to give right or deny it in immovable property of a deceased father? Will it not be following a shadow and forgetting the object of the enactment? Lord Denning L .J. in Seafood Court Estates Ltd.v. Asher (1949 (2) All ER 155) has shown the light in such a situation.  It is held as follows:

“A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if the Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do so as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases”.

The above observation of Lord Denning was followed by the Supreme Court in N.K. Jain v.. C.K. Shah (AIR 1991 SC 1289) and it was held that provisions forming part of a welfare legislation are to be interpreted in such a way as to achieve the purpose of the legislation. The amendment undoubtedly was to ‘help the innocent children who would otherwise have been treated as bastards. Interpretation of the provision must be to give effect to the intention of the Parliament. The Apex Court again considered the effect of the amendment to S.16 of the Act in Jinia Keotin v. Kumar Sitaram Manjhi (2003 (1) KLT 348 (SC) = (2003) 1 SCC 730) and held as follows:

“The legitimate status of the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of the parents over which the innocent child had no hold or control. But, for no fault of it, the innocent baby had to suffer a permanent setback in life and in the eyes of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting S.16 is to put an end to a great social evil."

Justice K. Ramaswamy has said in State of Karnataka v. Appe Bal Ingala (1994 Supp. (4) SCC 469) that to construe law one must enter into its spirit, its setting and history.

Whether the Heydone’s Rule is directly applicable or not the Supreme Court in Kalliani Amma’s case has definitely stated, that the principle has to be borne in mind to “find out whether the mischief from which the earlier legislation suffered on account of the use of certain words has since been removed and whether the subsequent legislation is constitutionally valid and on account of new phraseology, implements effectively the intention of the legislature in conferring the status of legitimacy on children who were otherwise illegitimate” (Para. 73 in Kalliani Amma v. K. Devi).

In the light of the above strong observations of the Apex Court, I feel that a second look is required on the decision in “Shyamalavalli”  to protect the interest of the innocent children for whose benefit the legislation was made.

Rural India v. Development : Role of Panchayat Raj Institutions

(By V.N. Haridas, Advocate)

“ Panchayat in this case has raised a contention that excessive use of ground water by the petitioner is creating acute water shortage in the area and under such circumstances the Panchayat has taken steps to cancel the license. Panchayat, in our view, has no jurisdiction in the matter of issue or renewal of license to the petitioners factory since the legislature in its wisdom has excluded the area in question, from the purview of the Panchayat Raj Act in view of sub-s.(2) of S.1 of the Act. Courts cannot be blamed for this predicament, the legislature and the executive in their wisdom excluded the industrial area from the purview of the Act with the result that the Panchayat cannot take steps under the Act”. (Pepsi Co India Holdings Pvt. Ltd. v. State of Kerala (2007 (2) KLT 835).

There are two Indias. One globalized India on the verge of entering the first world, the other one is of helpless peasants committing suicides, tribals dispossessed of land and livelihoods, poverty ridden children, women being victims of sexual exploitation and gender discrimination. Studies reveal that 120-160 out of 607 districts in India are extremist Naxalite Movement inflicted areas. This is not only the question of inequality or widening gulf between the two Indias but, on the other hand points to worst results of a paradigm shift in the policy of governance.

Development is to be for the benefit of the marginalized people. But in converse what we witness today is destruction of livelihoods and displacement of the poor in the name of Industrialization, big dams for Power Generation and Irrigation, Corporatisation of Agriculture, despite farmers suicides, modernization and beautification of our cities by demolishing slums etc. from Sardar Sarovar, Thehridam, Nandigram, Singur to Plachimada and now to Khamam at Andhra Pradesh showing every day how development can turn perverse.

Of course development is politics. However politics of development is not the concern of this short essay. What I am trying to point out is how far these state policies are contravening the constitutional principles regarding Panchayat Raj and decentralization.

The Panchayats are supposed to be the institutions of local governments. The internationally accepted principles of sustainable development are enshrined in the Constitution by formulating the provisions on the basis of economic development on the one hand and social justice on the other hand. The milestone in the history of decentralization in India, after being republic, was the incorporation of Part IX to the Constitution by the 73rd amendment in 1992. According to Art.243 G of the Constitution, a State Government may, by law endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self governance and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to:

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the XIth Schedule. In lieu of this constitutional provision Kerala Panchayati Raj Act, 1994 has been enacted.

The object of the Act is to establish a three tier Panchayati Raj institution for securing a greater measure of participation of the people in planned development and in local government affairs. It envisages the Panchayats with such powers and authority to enable them to function as institutions of self-governance and entrusting such Panchayats for economic development and social justice including the implementation of schemes in relation to the matters listed in the XIth schedule of the Constitution.

Thus, people must have a high say in what; how; when; and by whom their developmental needs are to be determined. The contemporary conflicts can be resolved if these provisions are effectively implemented. In converse what we see today is that the Central and State Governments are dictating economic and developmental policies which turn to be against the interests of the rural people. As a result massive land grabbing by large Corporations is going on in various guises, aided and abetted by the land acquisition policies of both the Union and State Governments. State Governments, aided and emboldened by the Union Governmental Policies, are acquiring land to give way to Corporations. The law relating to SEZ are surpassing not only Panchayati Raj Act but many other Central and State legislations also. 

The recent Kerala High Court decision in Pepsi Co. India holdings Pvt. Ltd. v. State of Kerala (2007 (2) KLT 835) seeks special attention in this regard. The issue in this case is that whether Panchayat has got authority either to issue or cancel license granted to the petitioner (the company) for setting up the factory at Kanjikode situated at an industrial area notified as industrial township, Palghat by the Government of Kerala in exercise of powers conferred by Cl.(f) of Ss.2 and 5 of the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999. The Panchayat has cancelled the license of the company for alleged over exploitation of ground water by the company. The Panchayat has contended that the development act would not take away the rights of the Panchayat under the Kerala Panchayat Raj Act in the matter of issuance or cancellation of license. Further it was pointed out that S.166 of the Kerala Panchayat Raj Act provides authority for the Panchayat for maintenance of traditional drinking water sources in the Panchayat as one of its mandatory duties to safeguard public interest. Further it is also stated that under S.243C of the Kerala Panchayat Raj Act, the Panchayat is vested with the power to implement and maintain water supply and sewage schemes within the Panchayat area. The Panchayat pointed out that one of the important functions required to be discharged by the Grama Panchayats under the provisions of the Constitution of India read along with the Panchayat Raj Act is to ensure and maintain supply of pure drinking water to the people in the Panchayat area. The main contention of the petitioner company is that since the petitioner unit situated at Kanjikode was notified as an industrial area under the Integrated Industrial Township, Palghat, the provisions of the Kerala Panchayat Raj act cease to have application to the industrial area in question by virtue of sub-s. (2) of S.1 of the Kerala Panchayat Raj Act, 1994. Accepting the contention of the petitioner company the Court held that the Panchayat has no jurisdiction in the matter of issue or renewal of license to the petitioner’s factory since the legislature in its wisdom has excluded the area in question from the purview of the Panchayat Raj Act in view of sub-s.(2) of S.1 of the Kerala Panchayat Raj Act.

Thus we can see that the predicament is often created by legislature and executive for which judiciary is continuously blamed. Judiciary is not a forum for you to produce judgments of your choice. Judges can decide only on the basis of existing laws and evolved principles. Decentralization and people’s participation on one hand exclusion of more areas from the province of Panchayat Raj Act will no longer go together. To conclude, the development of India is, of course necessary. However, development cannot take place at the cost of displacement of villagers, in violation of the Indian Constitution, destruction of unique local cultures and causing harm to local religious sentiments, severe environmental damage to a unique eco-system, and above all threatening the livelihood of the rural people. So what we need today is an alternative path of development where the local self government institutions have power and financial autonomy to implement it; transparency and accountability in governance at all levels and pro-people development has to be energized by a genuinely decentralized structure of governance. With that vision of development, it is time to judge the actions of the ruling class by this criterion, and not by their rhetoric. 

Anticipatory bail for a period -- Whether a second arrest is necessary

(By Barrister M.P.R. Nair, Sr. Advocate, Ernakulam)

We, the people of India, are governed by a written Constitution which guarantees certain inalienable natural rights incorporated in the Chapter on Fundamental Rights. These are freedoms reserved by the people for themselves. Hence all the functionaries and agencies under the Constitution have to respect those freedoms and, ex hypothesi, no functionary or agency can destroy them. Personal liberty is a guaranteed right under the Constitution that cannot be taken away “except according to procedure established by law”. Refreshingly, this noble principle finds eloquent expression in a recent judgment of Hon'ble Mr. Justice R. Basant of the Kerala High Court in Jyothish v. State of Kerala reported in 2007 (3) KLT 176. The questions considered and decided in this case are by far very important from the point of view of an accused person facing arrest for the commission of a non-bailable offence. The more important question is whether an arrest is necessary in all cases where an accused person has allegedly committed a bailable offence.

Brief facts of the case may be necessary to appreciate the law laid down in the case cited above. The petitioner who is an accused in Crime No. 158/05 of Koratty Police Station for offences punishable under Ss. 452, 324, and 308 of IPC, apprehended arrest and obtained an order from the High Court that, in the event of arrest, he should be released on bail for a period of one month on certain conditions. Within the period of one month, the petitioner appeared before the police, was arrested and released in terms of the order of the High Court. In the final report, allegations have been made that the petitioner has committed offences punishable under S.453, 324 and 308 of IPC.

The petitioner did not seek or obtain regular bail under Ss.437/439 of the Cr.P.C. Apparently, he apprehended arrest as he did not obtain regular bail within the period of one month. He further apprehended that the Magistrate might remand him to custody if he appeared before the Magistrate. It was in these circumstances, he applied to the High Court for issuance of further directions under S.438 of the Cr.P.C. contending that since he had been granted anticipatory bail, arrested and released, it was not necessary for him to apply for regular bail in the absence of any specific direction in this regard in the order granting anticipatory bail. The prosecution contended that a bail granted under S.438 of the Cr.P.C. has to be followed by a regular bail under Ss.437/439 and in the absence of such an order, the petitioner was liable to be arrested.

Both sides argued their respective contentions forcefully citing precedents. Is the Court granting anticipatory bail invested with the power to limit the time ? In a case where the superior Court granting bail does not issue a direction that regular bail must be sought under Ss.437/439, is it necessary that the accused should apply for regular bail? If regular bail was not applied for and obtained, should an arrest follow as a matter of course? Is the accused arrested and released on bail entitled to get further directions under S.438 of the Cr.P.C. from the Court which granted the anticipatory bail?.

Justice Basant gave anxious consideration to each of the contentions in the light of the decisions cited and submissions made before him. The learned Judge held that it was permissible for the Court granting anticipatory bail to restrict the period of operation of the order even though the normal rule is that there should be no such limitation. As regards regular bail, the learned Judge held that in cases where there is no direction in the order granting anticipatory bail that regular bail should be applied for and obtained, the accused who was arrested and released need not apply for regular bail. Regarding the arrest of an accused like the petitioner who had earlier been arrested and released, the Court held that he need not be arrested after the expiry of the period of the anticipatory order. But on this point regarding arrest of an accused person, the Court rose to commanding heights in expanding the horizons of the concept of personal libery. The Court made the following observations. 

“It follows that a Police Officer has to alertly consider in every case whether it is necessary to effect arrest. An arrest entails traumatic consequences. The polity dreads arrest by a police officer. The prospect is frightening. There must therefore be a proportionately onerous and sublime responsibility on the police officer to consider whether such an arrest is necessary. Only if necessary, such arrest ought to be effected..... Nay, I would even insist that reasons for exercise of such discretion must be recorded in the case diary by the police official concerned..... The Case Diary in every case must show that this sublime discretion was exercised by the police official after adverting to the circumstances and only thereafter on the basis of valid reasons the power of arrest was invoked and exercised against an accused person. A system which values and cherishes the right to freedom and liberty zealously must insist on such informed exercise of discretion by the Police Officer before he effects the arrest.”  (Italics supplied) Vide Para.42 of the Judgment.

In this view, the Court gave further directions under S.438 of the Cr.P.C granting him bail on certain conditions.

The law laid down by the learned Judge is in accord with the provisions contained in Article 22(1) of the Constitution which says that “no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.....”. The present decision which goes a step forward mandates the Police Officer to advert to all relevant circumstances and form an honest opinion before arresting an accused person. An onerous and sublime duty has thus been cast on the Police Officers before making an arrest. One hopes that the Police Officers would take note of the requirement of law enunciated in this decision that highlights the sweep and scope of personal liberty of a citizen guaranteed by the Constitution. 

Obituary : Advocacy

(By T.P. Kelu Nambiar)

The caption is based on a learned borrowing from Prof. A.L.Goodhart’s inimitable expression.

Though I hate being so old, eighty summers have come and gone after the day I breathed first; and fifty-three years have elapsed after I ‘advocated’ first. From a childhood in the tiny village Puzhathy, Kannur, commuting to school on a ‘judka’, to a Senior Advocate in the High Court of the State, is quite a transformation. I am slowly becoming a tragic twilight. And, now my age is weak.

With the privilege of antiquity upon me, I should say, with little hesitation, something has gone terribly wrong with advocacy; and the legal profession has crashed. This bomb which has now exploded, I was carrying on my mind for sometime now. I should speak with the valour of my tongue, lawyers are becoming strangers to themselves. We have to grin and bear the misfortunes and tortuous trail of the legal profession. It would not be too hasty to say that advocacy is ars magna: the great art; it is worship for lawyers; and advocates do not purchase tickets from touts.

Let me rewind to an era of pristine advocacy; where integrity and industry were the lawyer’s capital; where lawyers and Judges were partners; and not mere participants, without transferring their problems to each other, and without exploiting Judge-lawyer mismatch. Advocacy was no redemption song in those days; “bits and pieces” advocacy was shunned. Advocates tried to conquer the Judge by perseverance.

Listening skill was there in Judges. The man behind the name ‘Judge’ knew the importance of being a silent, attentive listener, without interrupting learning, making learned approbation of the grammar and idiom of advocacy, with cloistered detachment.

Today the legal profession seems to suffer from an institutional paralysis. I see the picture of a profession in crisis. Advocacy beckons advocacy. A lawyer wears many hats, so that it is cautioned: “Beware of Lawyers”. Lawyers are arrested, incarcerated, or murdered. Criticism of the judiciary enjoys a free play.

Digital lifestyle seems to be the order of the day. Much importance is attached only to the coronation of lawyers and Judges. Advocates seem to suffer from lawyer’s block. The proud, constitutional impatience of the Judges is often talked about.

The eloquent Indian, by name Sri.V.R.Krishna Iyer, said that the Court is not the proprietor of the lawyers. That mesmeric voice exhorted lawyers to meet Kipling’s Triumph and Disaster and treat them just the same, without resembling the portrait of a tragedy.

What makes a judiciary is Judges, not structures. Judges should be conscious of their functions and duties, not only powers, said that legal democrat, an inspiring stimulator and clarifier, Sri.V.R.Krishna Iyer, a man with a broad mind and lofty soul, who never says anything in discouragement; and who commands fundamental respect. 

‘Sravanam’ seems to be in bad shape in advocacy. Pardon me for saying some pretty unkind things about the legal profession. But ‘the man who cries is the man who feels’. Make no mistake, the legal profession is still noble. The High Court/Supreme Court is the melting pot of justice.

Superfast lawyers and Judges face the risk of derailment.

Lawyers and Judges seem to suffer from English dialogue blues.

A good lawyer works sixteen hours in the twenty-four.

Consulting my ‘Commonplace Book’, I find that Sri Justice V.R.Krishna Iyer, who speaks as Homer wrote, once made the immortal statement that an institutional paralysis has gripped the legal profession. A mere receipt of a black jacket does not make a lawyer. A perceptive lawyer should sell his soul to the grammar and idiom of advocacy; remembering that there is certainly ability even in disability.

Lawyers should be earnest to plead for their clients, not to please the Judge.

Let me tell those who are listening to me, without taking my secrets to the grave. And, firstly, of the first: Be possessed of the ingredients of a true lawyer. A lis is unlike the controversy between Robinson Crusoe and Friday, the Savage. Advocacy is not use and mis-use of law. Do not displease a Judge with your familiarity. Law book is the only weapon that is fit for a lawyer’s hands. Lawyers are not cross-dressing robbers. 

My life has been full and fruitful, with defeats and triumphs, experiencing bitter-sweet emotions. I have reached the last mile in advocacy. I am braving disabilities. My inner fire has been extinguished. I am slowly giving up Pollock and Mulla, Wade, etc. in exchange for Shakespeare, Hazlitt, Milton etc. And I feel myself much happier sometimes, indeed, to be in the Old Curiosity Shop section in my library.

Lawyers need to reinvent themselves. Lawyers should live with honourable mind.

A word to the junior friends, in the Shellian tune, though. Remember, “hard studies and youthful pleasures will not go hand in hand”. Do not spread the pain of advocacy. Advocacy is not a short-term course. Do not expect pole-to-flag win in the professional race. Do not think of portable property alone in the profession.

A lawyer should be a man of miscellaneous education.

There can be opponents in advocacy, but not enemies.

Try to enrich Kerala’s lawyer capital, especially in these days when it looks as though the legal profession has migrated to Delhi.

Try to attain lawyer maturity.