Marching Women under the Domestic Violence Act

(By V.K. Babu Prakash, Judicial First Class Magistrate, Kollam)

All the laws are Imperfect, even if made by a committee of arch angels  

                 --  Bernad Shaw

It has been about nine months since the Domestic Violence Act, 2005 has come into force in the Country.  When one looks at the litigation Scenario under the new Act, it seems like an alarming  picture. A flood gate of new litigation is opened under the Act, whereby women are rushing to the criminal courts to get various kinds of remedies and redressals. They seek financial protection, protection order on shared houses, restraint order against violence, compensation for illtreatment, medical expenses, education expenses of children etc. Though the Act contains an ameliorative provision under S.14 to have counselling of the issues, indeed it has become purposeless. As no counsellors are appointed, Criminal Courts find it difficult to have proper counselling between parties. Since matrimonial dispute is the core issue under the Act, counselling is one of the effective remedies which should be recommended than the other forced remedies prescribed by the Act. The District Probation Officers who are designated as the protection officers as per the rules are working under a compelling circumstance as they are not provided with material resources and infra structures. One may wonder how Kerala got this much women in distress who knock on the Court under the D.V. Act. Both educated and illiterate, rich and poor, employed and vagrant, old and young are approaching the court with petitions under the D.V. Act. Due to the alarming rate of filing of cases, Criminal Courts find it difficult to attend with other cases as there is a time limit imposed by the D.V. Act. The Govt. has to seriously consider in setting up special or new Courts for the remedial measures under D.V. Act. Ordinary criminal Courts are in an explosive state of pendency with other cases thereby other litigants who seek justice will be put into trouble by the flux of this new litigation.

Next, when we look at the provisions of the Act it has so many pit falls. The Act is a hurry - burry legislation which did not have wider discussions before it became enacted. As it is the brain child of Mrs. Renuka Chaudhary, the Union Minister, it is women friendly . The recent observation of the Hon’ble Supreme Court that the Act is a ‘clumsily drafted one which needs through over hauling opened the mind of the Minister to have amendments on its provisions. The definition of the expression shared household occuring in S.2 (s) of the Act creates so much confusion and difficulty in interpreting it in a pragmatic sense. Again the definition of respondent occuring in S.2 (9) of the Act creates another question mark that a respondent can only mean a male person alone thereby petition can be filed by a female against a, male person alone. Though the Act lays down in S.28 that the procedure would be governed by the provision of the Code of Criminal Procedure, it does not specifically make out any provision for execution or implementation of the order passed under Ss.18, 19, 20, 21, 22 or 23. Of course the Act contains provision that breach of any order passed under the Act will invite penal consequences under S.31, nevertheless it is not a relief to the petitioner who only wants an implementation of the order granted in her favour. As the objective of the Act is to give civil remedy to the aggrieved woman, it must have prescribed express provision for execution of the order passed by the Magistrate.

S.12(1) of the Act says that an aggrieved person or a protection officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more relief under the Act. Sub-s.4 of S.12 says that the Magistrate shall fix the first date of hearing, which shall not be ordinarily be beyond three days from the date of receipt of the application by the Court. The mode of service of notice is prescribed in S.13 which says that it shall be served by the protection officer by such means . This causes a lot of difficulty. First of all, the period of three days prescribed for hearing within which the notice is to be served on the respondent is a never achievable proposition. Supposing that the respondent is a person from a far away place, then how the protection officer could get the notice served on the respondent within three days?  Further, the forms of prescribed notice scheduled in the rule are not printed and supplied at all. Again, the protection officers would find it difficult to give the notice on the respondent as they are not provided with any means or resources for service of notice. Another point to ponder is that the Magistrate who takes cognizance of the case, who passes the order himself has to execute the order one way or other. The protection officer appointed under the Act looks like a person to render voluntary public service as it seems that he has got a duty to search and find out domestic violence in his area and report it to Court. The next strangeness of the Act is that when there is no other evidence except that of the aggrieved woman, her sole testimony shall be relied upon by the Magistrate in deciding the existence or otherwise of the domestic violence. With the drastic provisions of the Act along with the penal provision of S.498 (A) I.P.C. as well, the women in the country are hunting down their erring men partners like sheep to the shamble. 

Insult Not The Dead*

(By T.P. Kelu Nambiar, Sr. Advocate)

Dear Mr. President,

I am to entreat you, request you, and desire you to read this letter carefully, attentively, and repeatedly. I pray your patience; and please do not destroy the prayer. The matter comprised in this letter may not be treated in a ‘take it or leave it’ fashion.

I am constrained to say, regretfully, I have a hunch that lawyers are being treated as the legal profession’s apartheid; and lawyers are unable to protect their own rights. And, I have learnt to trust my intuition.

I am on the aspect of obituary reference accorded to ‘dead’ lawyers. For some time now, when an advocate passes away, ‘reference’ in Court, touching the deceased, is held after a lapse of long number of days, probably waiting for other lawyer-deaths, so that condolence meetings could be combined into two-in-one or three-in-one, holding a mass meeting for all together. This has happened many a time in recent past. This I say with the veracity of a historian. Please look into the ‘Red Book’ and find out the origin. When Judges or retired Judges pass away, obituary reference is almost instantaneous. Recently, a practising Senior Advocate was murdered on the evening of July 12, 2007. A few days later, (on 19-7-2007), a retired Judge of the High Court ( retired long, long ago), passed away. Obituary Reference by the ‘Full Court’ was held for the ‘dead’ Judge, the next morning itself, you, the President, participating. But, obituary reference to the lawyer was held still later, you, the President, not minding. Why differentiate between “mortal ghosts”, to borrow the expression of Dylan Thomas. Is the Association going down in the estimation of right-thinking members? God forbid!

When Adam brought death into the world, he did not devise great death or small death. “And all the dead lie down”; said Emily Dickinson.

Let me probe at some length into the secret life of the English language. John Donne sang:

“Death be not proud.........

Everyman’s death diminishes me; because I am involved in Mankind. Therefore never send to know for whom the bell tolls; it tolls for thee”.

Everyone possesses a body of ‘dusty death’. Here, there is no difference between a soldier and a scholar, a prince and a plebeian. G.K.Chesterton perceived ‘democracy’ in the dead. Death stands still as Miss Havinsham’s clock. Death closes all, mused Lord Tennyson. And, said T.S.Eliot, “Death has undone so many”. By dying, you make space. 

Differentiating the dead, amounts to insulting the dead. Death cannot be blacklisted. According to the Old Testament, death is the deliverance from the body of death.

Let me quote Edna  St.Vincent  Millay:

              “Down, down, down 

              into the darkness of the grave 

              Gently they go,

              the beautiful, the tender, the kind, 

              Quietly they go, 

              the intelligent, the witty, the brave”.

Shakespeare made Macbeth perorate:

              “Life’s but a walking shadow, a poor player, 

              That struts and frets his hour upon the stage, 

              And then is heard no more; it is a tale 

              Told by an idiot, full of sound and fury, 

              Signifying nothing”.

“There is no way to destroy death”. Life insurance agents work on this premise. 

In sum, ‘death is life’s high meed; as John Keats put it. “In the last analysis, it is our conception of death which decides our answers to all the questions that life puts to us”. This is not my opinion, but of Dag Hammarskjold. Everybody is struck down by death’s feather. On death, you forget your past. Therefore, differentiate not the dead; insult not the dead. Death takes everybody by the heart.

George Bernard Shaw’s famous words may be quoted: “Life levels all men; death levels the eminent”. It was Dylan Thomas who said: “After the first death, there is no other”. One may live like a prince, or king, or Senior Advocate, or Judge, or Philosopher, but does not die like that. It is said that Jesus Christ alone died like God. 

My live body may, perhaps, brook any insult; but my dead body would revolt against the slightest affront; and, to register such a protest only, I visualise My ‘dead body alive’. Kindly, therefore, spare me. I leave My last will to the Kerala High Court Advocates Association: “Please do not hold a belated condolence meeting in Court with reference to me, and that, too, before an attenuated gathering”.

Dear Mr.President, kindly publish this letter for the information of the members of the Association. And, if so advised, please communicate a copy to the Registrar-General. 

I do reserve my right to publish this letter, through the medium of our esteemed Law Journal, the Kerala Law Times.

Long Live the ‘Dead’ Lawyer.

Tail-piece:

       “Death and the cross are the two

       great levellers; kings and their

       subjects, masters and slaves,

       find a common level in two places -

       at the foot of the cross, and at

       the silence of the grave”.

                                                -- Charles Caleb Colton

       “APw N¯p KPambv ]nd¡p¶p 

       KPw N¯§PhpamboSp¶p

       \cn N¯p \c\mbv ]nd¡p¶p

       \mcn N¯pSt\mcnbmbv t]mIp¶p

       Ir]IqSmsX ]oUn¸n¨oSp¶ 

       \r]³ N¯p Iranbmbv ]nd¡p¶p

       Cu¨ Ns¯mcp ]q¨bmboSp¶p 

        Cuizcsâ hnemk§fn§s\.” 

                                    -- Poonthanam in 'Jnanapana'

* Letter, dated 4th September, 2007 addressed to the President, Kerala High Court Advocates Association, by Senior Advocate T.P. Kelu Nambiar)

Some Thoughts on “Denial of Title” and “Estoppel”

(By K.G. Balasubramanian, Advocate, Ernakulam)

1. Estoppel between landlord and tenant in the setting of Kerala Buildings (Lease & Rent Control) Act is baffling. Made so more by interpretation, than its setting. I feel the issue of denial of title of the landlord  by the tenant warrants a different consideration - precedents notwithstanding.

2. In many other States, denial of title spells doom to the tenant. But in God’s own country, it is maddening, if not sickening, that denial of title is an escape route to an unscrupulous tenant, to delay judgement day by compelling the landlord to invoke S.11(2) or its companions in a civil Court! Why? I have personally nothing against tenants. They also serve. But, one is entitled to look for parity, purity, proportion and propriety in legislative drills. More, in the case of a Self Contained Code.

3. The definition of landlord vide Section 2(3) is not exhaustive. It includes a person who is   receiving or  is  entitled to receive rent as agent, trustee,   executor, administrator, receiver, guardian. It does not, and cannot, include one who had received rent. The dichotomy between past and present receipt of rent is intentional. The decisive element is the right to receive rent, in praesenti, either for himself or on behalf of another. Take the case of the so-called landlord who, the tenant belatedly learns, is neither the owner of the building nor an agent, etc., of another, but only a usurper. Or that of the landlord, whose title is vitiated, being sham or fraudulent on tenant and public. Though he might have received rent, can he seek eviction? No, according to me, because receipt by him was legally not either for himself or on behalf of another. Lawful entitlement to receive rent appears, to me, to be the concomitant of S. 2(3).

4. In view of AIR 1979 SC 1409, one has to look to the provisions of law contained in the four corners of any State Rent Act to find out whether a tenant can be evicted or not. In AIR 1988 SC 1413, their Lordships held that: “the law as to the estoppel of a tenant under S.116 of the Evidence Act was a recognition, and statutory assimilation, of the equitable principles underlying the doctrine of estoppel in relation to tenants. The Section was not exhaustive of the law of estoppel. The section inter alia, predicated that no tenant of immovable property during the continuance of the tenancy, would be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, title to such property. There could be a denial of the title of his landlord without the tenant renouncing his own character as a tenant, where, for instance, he had set up a plea of Jus tertii”. Their Lordships also accepted that: “But, here too, it is open to the party sought to be estopped to explain away the attornment, and so escape the estoppel to which he would otherwise be subject, by proof that, when he so attorned, he was labouring under mistake or ignorance as to material facts affecting the title of the person to whom he attorned, particularly if such error or ignorance was due to the fraud of that person”. The “notwithstanding” manoeuvre in S.11(1) reigns the field and the rule that payment of rent to the landlord estops the tenant is not applicable in all cases, an inevitable situation, with due respect to precedents to the contrary on the point.

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.