The Supreme Court on ‘’Adverse Possession” in a Nutshell

(By Sasisekhar Menon, Librarian, High Court of Kerala)

As per Ake Frankenfield. adverse possession refers to a legal principle that grants title to someone who resides on or in possession of another person’s land. The property’s title is granted to the possessor as long as certain conditions are met including whether they infringe on the rights of the actual owner and whether they are in continuous possession of the property. This can happen intentionally or unintentionally with or without the property owner’s knowledge. The adverse possessor is also referred to as the disseissor. A disseissor who successfully proves adverse possession is not required to pay the owner for the land.

Twelve judgements of the Supreme Court of India

1. P. Lakshmi Reddy v. L. Lakshmi Reddy:

The Supreme Court as early as on 5-12-1956 declared, “to establish adverse possession, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment” (1957 KLT OnLine 1401 (SC).

2. Shambhu Prasad Singh v. Phool Kumari and others:

On 24.3.1971 the Supreme Court held, “adverse possession should have characteristics
of continuity, exclusiveness and adequacy, onus of proving all these characteristics is on adverse possessors from studying evidences available, appellant had sufficient by
interrupted acts of possession and his title is thus not extinguished ((1971) 2 SCC 28 =
AIR 1971 SC 1337).

3.Parsinni (D) by LR v. Sukhi and others:

The Ratio Decidendi of this Supreme Court judgement of 15-9-1993 reported in (1993) 4 SCC 375 = 1993 (3) SCALE 784 is, “If revenue record corroborates plea of adverse possession then title can be perfected by prescription.” It was held that since possession and enjoyment of Appellant and her sister was to exclusion of the Respondents’ brothers, for well over 30 years it was proved that Appellants were in possession and enjoyment openly and continuously in assertion of their right as owners - however, entries in revenue recorded continuously for 30 years would corroborate their plea of adverse possession and militates against claim of title of Respondents - Moreover, plea that Appellants were never in possession and enjoyment was belied by entries in revenue records - thus, Appellants had perfected their title by prescription - therefore decree of High Court and that of appellate court were set aside and appeal allowed.

4. T. Anjanappa and others v. Somalingappa and others:

On 22.8.2006, the Supreme Court held, “Concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of title of the true owner - possession to be adverse must be possession by a person who does not acknowledge others’ right but denies them - possession is not held to be adverse it can be referred to a lawful title - under Article 65 of the Limitation Act burden is on the defendant to prove affirmatively (2006 (3) KLT OnLine 1101 (SC).

5. P.T. Munichikkanna Reddy v. Revamma and others:

On 24.4.2007, the Supreme Court held (2007 (2) KLT OnLine 1115 (SC),“Right to property now considered to be not only constitutional or statutory right but also human right - hence even claim of adverse possession has to be considered in that context.” The Ratio Decidendi in this case is “Right of adverse possession comes into play not just because someone loses his right to reclaim property out of continuous and wilfful neglect but also on account of possessor’s positive intent to dispossess. Intention to possess cannot be substituted for intention to dispossess.”

6. Annakili v. A. Vedanayagam and others:

The Supreme Court on 12.10.2007 in this case held that Animus Possidendi is its requisite ingredient. Mere possession for more than 12 years without anything more, does not ripen into title(2007 (4) KLT SN 55 (C.No.60) SC = (2007) 4 SCC 308).

Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff, and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose, Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for a period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title. The ratio decidendi is. “Transfer of title - anybody not having title of suit property could not transfer any right, title and interest in the said land to the appellant and other similarly situated.” “Adverse possession - claim to adverse possession can only be claimed when possession of defendant becomes adverse to plaintiff and defendant continued to be in possession for a period of twelve years thereafter.”

7. Sadashiv Shyama Sawant v. Anita Anant Sawant:

“Dispossession of tenant by third party is dispossession of landlord” is the ratio decidendi in this judgement of the Supreme Court dated 22.2.2010 (2010 (1) KLT 808 (SC).

8. State of Madhya Pradesh v. Nomi Singh and others:

In this case_;on 24-3-2015, the Supreme Court held that the trial court and first appellate court had rightly found that to succeed in a plea of adverse possession, plaintiffs should have disclosed and proved as to when adverse possession started and when it was perfected by them, particularly when they were declared encroachers by Tehsildar -- plaintiff had failed to prove their case on grounds taken by them in plaint. Therefore impugned judgment and decree was set aside and appeal allowed (2015 (2) KLT Suppl.190 (SC).

9. Prem Nath Khanna and others v. Narinder Nath Kapoor and others:

On 1.3.2016, the Supreme Court held (2016 (1) kLT OnLine 2150 (SC), that respondent No.1 has no right to claim ownership over the suit property on the ground of adverse possession by taking a plea of sham transaction. This plea of the respondent is not only prohibited by the Benami Transaction (Prohibition) Act, 1988. but makes the Appellants absolute owner.

10. State of Uttarakhand and others v. Mandir Sri Laxman Sidh Maharaj

The Supreme Court on 12.9.2017 held (2017 (3) KLT OnLine 2077 (SC)  while allowing the appeal: “The trial court committed several jurisdictional and legal errors by not applying any legal provisions and just on mere asking, decreed the suit, at least, the High Court in its first appellate jurisdiction in an appeal filed by the defendants against the judgment of trial court should have taken note of relevant legal provisions applicable to the case and then decided the appeal accordingly. Indeed, while examining the issue, the provisions of the Heritage Property Act and the Ancient Monuments Preservation Act could also have been taken note of with a view to find out as to whether the structure which was 5000 years old was governed by the provision of these two Acts or not and if it has governed, then its effects. The filing of the suit by the plaintiff was wholly misconceived and was nothing but abusing the process of law. The plaintiff was neither in possession of the suit property much else in its legal possession nor he had any authority to remain in its possession for want of any lawful authority. The plaintiff thus has failed in every respect.” - paras 32, 33 and 35 of the judgment.

11. Mallikarjunaiah v. Nanjaiah and others:

On 26.4.2019 while disposing this case, the Supreme Court held (2019 (2) KLT OnLine 3108 (SC) that the appellant having come to know that the respondents had encroached upon his land in the year 1983 rightly filed the suit within 12 years from the date of knowledge, a plea of adverse possession was not available to the respondent against the appellant because 12 years had not been completed by then. The question of respondents perfecting their title by adverse possession over the suit land did not arrive. Even if the respondents claimed to be in possession over the suit land prior to the year 1983, the same was of no consequence for the simple reason that such possession was neither exclusive not hostile and nor it was to the knowledge of the parties for want of actual measurements. The courts below were not justified in declaring the respondent to be the owner of the encroached portion of the suit land by virtue of adverse possession. As a consequence thereof, the plaintiffs suit is decreed in its entirety against the defendants.

12. Krishnamurthy S.Setlur (KS) (D) by LRsvs. O.V. Narasimha Setty (D) by LRs

On 26.9.2019. the Supreme Court held (2019) 9 SCC 488: 2019 (13) SCALE 84; while allowing the appeal, it is apparent that the legal heirs of H.R. Narayana Iyengar (HR - on whom KS had executed a general power of attorney to manage the properties) miserably failed to prove how they came into possession of the suit property and therefore, High Court gravely erred in coming to the conclusion that KS was not in possession of the suit property when the suit was filed. He may have been dispossessed after filing of the suit but that has no effect on the case. There can be no manner of dispute that a plaintiff can claim title to the property based on adverse possession.

Dineshan Pillai v. Joseph-- 2019 (3) KLT 104

(By P.B. Menon, Advocate, Palakkad)

Luck and not the law that saves a landlord to get eviction of the tenanted premises is the outcome of the above decision.

Facts are simple as recited in the judgement in the above case.

Landlord sought eviction of a tenanted shop building on 2 grounds (1) Section 11(2) on the ground of arrears of rent due and (2) bona fideneed to expand and extend his textile business run in a corner shop in his building to the tenanted shop room as well.

Regarding arrears of rent, it is seen that the landlord has obtained two decrees from the civil court and execution proceedings are on and are pending. The same arrears of rent is the subject matter of eviction application too. Nothing is seen referred to in the judgement about the statutory notice or its contents that should precede such eviction application. On the basis of these facts, the queston is, is there a cause of action for eviction on the ground of arrears of rent due. When a decree is obtained for arrears of rent due from a civil court, will not the character and nature of arrears of rent so due change and become a decree debt. After the decree it is executable for the realisation of which execution proceedings have to be initiated. Can such a landlord decree holder file an application for eviction against his judgement debtor tenant is the question. Take the case of a land lord who sold his building to another along with arrears of rent due upto the date of sale. In such a case can the purchaser make an application for eviction based on such arrears. Really it becomes a debt and he gets an actionable claim to sue for recovery of that amount. It is no longer arrears of rent in his hands .Can it be said that a landlord who has obtained a decree for arrears of rent can necessarily take execution proceedings for realising the decree debt and at the same time treating the said arrears of rent which has merged into an decree make an application for eviction. Certainly not is the law see 1996 (2) KLT 936, AIR 1995 SC 448, 2000 (1) KLT 205.

Coming to the claim on the ground of bona fideneed the facts recited in the judgment is to the effect that the landlord who is doing business in textile in a corner shop of his own building want to expand his trade and extend his business to be treated shop room and hence sought eviction of the tenanted premises in the same building .So it is a clear case of S.11(8) as all ingredients of this sub-section are satisfied. Evidently it is not a ground of bona fide need. Still the main issue raised discussed and decided is about the effect of the first proviso to S.11(3)and nothing about S.11(8) as if 11(3) applicable.

Hence on the facts both grounds are untenable on the face of the said allegation in the application for eviction.

Any worthy criticism or elucidation on these points is welcome and will be appreciated.

Medical Insanity Vs. Legal Insanity

                      (By Parippally R.Raveendran, Special Public Prosecutor,              
                            Former Member of Bar Council of India)

1. Appreciating the legal insanity, the judicial court is concerned with only legal insanity and the fact remains that there is substantial difference between medical insanity and legal insanity.  The medical evidence produced by an offender during his trial before a criminal court would show that the offender is having insanity intermittently and is having the ailment at intervels. During this interval period there is a complete restoration of peace of mind and at that time his cognitive functions will be in order. At that time the person will be able to judge his own acts, having sense of judgment, memory and rational thinking. In fact he is able to know whether his act is contrary to law or not.

2. Modi on Text Book of Medical Jurisprudence and Toxicology 25^th Edition page 893discuss about lucid interval based on a decision in Bapu @ Gagraj Singh v. State of Rajasthan(2007 (4) KLT 63 (SC)which states that this is a period occurring in the course of mental disease during which there is complete cessation of symptoms of insanity, so that the individual can judge his act normally. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or perfect restoration of the mental faculties or their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient.

3. In Dayabhai Chaganbhai Takker v. State of Gujarat (1964 KLT OnLine 1244 (SC)the court held that it failed to satisfy him that when he committed the murder he was not capable of knowing the nature of the act and doing the act was either wrong or contrary to law. So the crucial point is the offender  whether he is incapable of knowing the act or contrary to law. Under Section 4 of the Evidence Act the court shall presume a fact; it shall regard such fact as proved, unless and until it is disproved. In criminal jurisprudence there is a general burden and a special burden. In general burden it will never shifts and it is always with the prosecution. Under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the exception is on the accused and the court shall presume the absence of existence of circumstance as provided with the definition of “shall presume”. In that decision it is clearly stated the accused has to satisfy the “standard of a prudent man”. If the material placed before the court, such as oral and documentary evidence, satisfy the test of prudent man the accused will have to discharge that burden. Special burden that rests on the accused to make out his defense of insanity.

4. Halsbury’s Laws Of England3^rd edition page 288 states that the onus of establishing insanity is on the accused. The burden of proof upon him is no higher than which rests upon a party to a civil proceedings. InSheralli Vally Muhammed v. State of Maharashtra(1972 KLT OnLine 1173 (SC) (4 Judge Bench) held that “ the law presumes that every person at the age of discretion to be sane unless contrary is proved.” It is further held in that decision that it will be most dangerous to admit the defense of insanity upon arguments derived from the character of the crime.

5. Sreekanth  Anandrao  Bhosle  v.  State  of  Maharashtra (2002 (3) KLT OnLine 1034 (SC)
followed the ratio of Dhayabhai case. In Sudhakaran v. State of Kerala (2011 (1) KLT SN 13
(C.No.15) SC)  the Apex Court held that the appellant would have to prove that his cognitive faculties were so impaired at the time crime was committed as to not know the nature of the act. The crucial point of time at which the unsoundness of mind is established is the time when crime is actually committed and the burden of proving this lies on the appellant. In Hari Singh Gond v. State of Madhya Pradesh (2008 (3) KLT 969 (SC)........There was nothing abnormal in his behaviour queer cannot be sufficient to attract to the application of the Section. In Sidhapan Kamala Yadhav v. State of Maharashtra(2009 (1) KLT OnLine 1120 (SC)
the court held that mere absence of motive for crime, however atrocious, it may be, cannot in the absence of plea, and proof of the legal insanity bring the case with in the Section. In Shibu v. State of Kerala (2013 (4) KLT 323) the court held that during the investigation, it comes to the knowledge of the investigation, from any of the relatives or friends or neighbours that there is something wrong with the accused mentally, the investigation officer shall necessarily conduct the investigation into the mental condition of the accused.

6. This decision reflects that an honest investigating officer as part of the investigation present the entire facts including the previous medical history of the accused if any, before the court for the proper adjudication of the case. In the above decision the court discussed Babu @ Gugraj Singh v. State of Rajasthan cited supra the onus of proving unsoundness of mind is on the accused. But where during the investigation, previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to medical examination and place the evidence before the court. If it is not done it is an infirmity in the investigation, and the benefit of doubt has to be given to the accused. A distinction is made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity. The burden of proof rests on accused to prove insanity which arises by 105 Evidence Act.

-pre-meditation in doing the act.

-the appellant exhibited the symptoms on when the case is schedule.

Whether the accused had taken a plea of exception under Section 84 of I.P.C.?

Lucid Intervels

Medical records available before the court would show the appellant is having medical insanity during intervals.

The evidence on record including the conduct of the appellant prior to and at the time of commission of offence and also the subsequent conduct lead only to the inference that the appellant had no legal insanity.

7. Mariyappan v. State of Tamil Nadu (2013 (2) KLT SN 77 (C.No. 93)SC) the  Apex Court
held that insanity or unsoundness of mind are the stages when a person is incapable of knowing the nature of the act or unable to understand what is wrong or right and must relate to the period in which the offence has been committed. Relying on Sudhakaran v. State of Kerala para 26 and 28 the defense of insanity has been well known in the English legal system for many centuries in earlier times it was usually advanced as a justification for seeking pardon. It is also accepted that insanity in medical terms is distinguishable from legal insanity.

8. The medical profession would undoubtedly treat the appellant herein as a mentally sick person. However, for the purpose of claiming the benefit of the defense of insanity in law, the appellant would have to prove that his cognitive faculties were so impaired at the time when the crime was committed as not to know the nature of the act. Whether he is able to do his routine work.

9. If the circumstances show that at the relevant time of commission of offence he was not insane, now the court can infer that his cognitive functions are in order. If he meticulously followed the court proceedings and acting suitably when the records were furnished for perusal he is acting rationally.

10. In Sankaran v. State (1993 (2) KLT 852) the accused killed his wife, dragged her dead body and laid on the verandah of his neighbour and the court held that it only reveals his perplexed mind seeking solace and it is not an indication of insanity.

11. InState of Kerala v. Ravi (1978 KLT 177) the court held that mere vague suspicion  that accused might have been suffering from any insanity of a minor type is not by itself sufficient to discharge the onus of proving which lies on the accused who is a beneficiary under general exception.

12. In Babu v. State of Rajasthan (2007 (4) KLT 63 (SC))the court held that if there is any previous history of insanity, an honest investigating officer has to subject the accused to medical examination and place the report before the court, otherwise it will be an infirmity
in the prosecution. The doctrine of burden of proof in the context of plea of insanity has been discussed in Dayabhai Chaganbhai Takker v. State of Gujarat (1964 KLT OnLine 1244 (SC))
The Court further held the following vital points;     

1. The prosecution has to prove the mens rea.The burden of proof is on the prosecution.

2. There is a rebuttable presumption of accused and the preponderance of probability.

3. If the general burden was not established by the prosecution, acquit the accused.

13. In Surendra Misra v. State of Jharkhand(2011 (1) KLT SN 33 (C.No.39) SC)the court held that the accused has to establish his defense by the preponderance of probability, after which the onus will be shifted on the prosecution to establish the inapplicability of the exception.

14. Standard of test is the legal insanity and not medical insanity. In (2011) 1 SCC 602
the crucial time of considering the defense plea of unsoundness of mind has to be with regard to the mental state of the accused at the time of the offence was committed, collected from evidence of conduct, which precedent, attended and followed the crime.

15. Elavarasan v. State(2011 (3) KLT Suppl.55 (SC)) legal insanity; discussed the burden of proof and the standard of proof. It is further affirmed in the Dayabhai Chaganbhaicase that,

(1) Prosecution must prove beyond reasonable doubt that the accused committed the offence, with requisitemens reaand the burden of proving that always rests with the prosecution from the beginning to the end of trial.

(2) There is a rebuttable presumption that the accused was not insane, when he committed the crime in the sense laid down in Section 84 I.P.C.

(3) Even if the accused was not able to establish conclusively that he was not insane he is entitled to be acquitted on the ground that the general burden resting on the prosecution was not discharged.

16. In State of U.P. v. Ram Swaroopthe Court held that the burden rests on the accused to prove the exception is not of the same rigor as that of the prosecution. In Babu Gagraj Singh v. State of Maharashtra(2007 (4) Supreme 627) the court discussed about the unsoundness of mind. The expression used in Section 84 regarding unsoundness of mind is not defined in IPC. The term is used to describe varying degrees of mental disorder. So every person who is mentally deceased is not ipso factoexempted from criminal liability.

17. Section 105 of the Evidence Act, a distinction is made between legal insanity and medical insanity. The burden of proof is on the accused. S.84 embodies a fundamental maxim of criminal law “actus non reumfacit nisi mens sit rea” -an act does not constitute guilt unless done with a guilty intention. It is only unsoundness of mind which naturally inspires the cognitive functions of the mind can form a ground of exemption from criminal liability.

18. Stephen in“History of Criminal Law of England”Vol.2 page 166 has observed that if a person cut off the head of a sleeping man because it will be a great fun if he woke up, would obviously a case where the perpetrator of the act would be incapable of knowing the physical effect of the act.

The above discussed case laws pronounced by the Apex Court and various High Courts could clearly show that there is a substantial difference between medical insanity and legal insanity and while appreciating the legal perspective of the defense of insanity The judicial courts are only concerned with the legal insanity of the offender at the time of the commission of the offence and not the medical insanity.

The AI -- IPR Dilemma: Issues and Challenges

(By Dr. Raju Narayana Swamy IAS)

Artificial Intelligence

Artificial Intelligence (AI) is the science and engineering of making intelligent machines. The term was formally coined by John Mc Carthy who along with Marvin Lee Minsky organized the Darmouth Conference in 1956. According to him, it is the notion of a program, processing and acting on information such that the result is parallel to how an intelligent person would respond in response to a similar input¹. Put in simple terms, AI is the ability of a machine to mimic intelligent behaviour. Intelligence, it needs to be mentioned here, may involve a cognitive approach or a computational approach.

In the Indian context, the NITI Aayog discussion paper classifies AI as “a constellation of technologies that enable machines to act with higher levels of intelligence and emulate the human capabilities of sense, comprehension and action”. This classification is to be read in the context of Gartner Inc’s instructive definition of AI which reads as, “technology that appears to emulate human performance typically by learning, coming to its own conclusions, appearing to understand complex content, engaging in natural dialogs with people, enhancing human cognitive performance ...... or replacing people on execution of nonroutine tasks”.²

From Weak AI to Strong AI and Superintendence

The state of AI that we are currently in is popularly referred to as weak AI. Its characteris-
tics are two fold:-

a. It has direct human intervention in its creation and

b. It is limited to a single task.

Put it a bit differently, it refers to narrow technologies that do not have any kind of consciousness about what they are doing though at first blush they appear to behave intelligently. Siri, for example is a weak AI system used by many to help them even in daily chores. The next stage of development is strong AI wherein human like thinking - with a subjective and conscious mind - is induced. A classic example is “Creativity Machine” used by the US military to design weapons. Some computer scientists are of the opinion that strong AI systems may evolve to superintelligence, surpassing humans in the thought process.

The Turing Test

The Turing Test was proposed by Sir Alan Turing to tackle the question of whether the results being rendered by a machine are an outcome of its own intelligence or algorithms and commands. The test called upon users to converse with a machine/human in a text only format and then suggest whether they believed they communicated with a human or a machine. Turing was of the opinion that an AI machine showed intelligence if the responses submitted were indistinguishable from real human responses. Despite the initial success, the test suffered reverses in later years and its application was largely restricted to speech machines and certain quizzing purposes.³

 WIPO Classification

The WIPO (World Intellectual Property Organization) propounded three categories of AI (ie.) expert systems, perception systems and natural language systems. Expert systems are programs that solve problems in specialized fields of knowledge such as diagnosing medical conditions and recommending treatment.⁴ They rely primarily on a hand-crafted knowledge base and set of rules created by humans. But a system that functions based on only circulated knowledge base cannot scale and hence expert systems became constrained and inflexible. Besides, many real world challenges are too subtle to be solved by simplistic logical reasoning that follows a set of rules written by human experts. Perception systems on the other hand allow the computer to perceive the world with the sense of sight and hearing. A natural language program by contrast is designed so as to understand meaning of words taking into consideration different grammatical and textual contexts to provide a semantic analysis.⁵

AI vs. machine learning

Recent advances in AI come under the ambit of machine learning which involves programming computers to learn from past experience. A classic example is identification of apples from amongst fruits in a basket of groceries. By describing what an apple looks like, we can program a computer so that the machine can recognize apples based on their shape and colour. Machine learning can be used to predict whether a customer will default on a bank loan or to use symptoms to develop a medical diagnosis. Autonomous driving is another prediction problem solvable with machine learning. Though the mathematical ideas behind machine learning date back to decades, recent advances in data storage, computational speed and sensors have dramatically reduced the cost of machine learning - based predictions. Needless to say, machine learning is beginning to make its presence felt more and more in the day-to-day context. A classic instance is x.ai, a New York City - based startup, that provides a virtual personal assistant for scheduling appointments over email and managing calendars.

Mention must also be made here of the concepts of:

a. Deep learning (which mimics the activity in the layers of neurons in the brain to learn how to recognize complex patterns in data). This is perhaps the most promising technology where neural networks are trained on extremely large data sets.

b. Reinforcement learning (software agents that learn goal-oriented behaviour by trial and error in an environment that provides rewards or penalties by achieving that goal).

c. Transfer learning (that focuses on storing knowledge gained in one problem and applying it to a different or related problem).

The AI-IPR intersection

The AI-IPR intersection can be broadly classified under three heads:

i. AI as a technology to manage IPRs

Across the globe, IP offices have deployed various AI applications, classic examples being WIPO Translate and WIPO Brand Image Search that use such applications for automated translation and image recognition. Mention needs to be made here of the 2018 meeting organized by WIPO to discuss these applications and encourage their sharing.⁶

ii. IP rights as an obstacle to the transparency of AI systems

In an era of transparency and accountability, a question arises as to whether this requirement will continue to be satisfied in cases wherein the machine learning process involves elements that are opaque for legal or technological reasons.⁷ In fact IP rights in general and trade secrets in particular could create barriers and raise a conflict between IP provisions on the one hand and the social need of transparency on the other hand. The solution lies in highlighting and bringing into practice the reality that disclosure for satisfying these goals does not concern the algorithmic rules but only their results.

iii.  IP as a legal system that can protect, nay foster AI.

Patent and copyright are the most relevant systems of protection regarding AI. However, ‘when patent laws were conceived, the concept of machine as an inventor did not exist. Therefore patent laws worldwide bestowed invention rights only to humans (eg:- Japanese law stipulates that only a natural person can be an inventor) and not to machines. And the situation has not undergone a radical change even today. To cite an example, an AI system christened as DABUS was named as the inventor in patent applications filed in UK, US and Europe in 2017, But the same was rejected in all three jurisdictions on account of it not being a legal person. Therefore, from a patent perspective the following issues need special mention:

a. Whether, AI as an invention is eligible subject matter. (In most jurisdictions, algorithms by themselves qualify as vague systems lacking technical character and hence cannot be protected under IP laws. However, it will be counterproductive if we take a blanket approach that patents should not be awarded to Al-based inventions which are essentially computer-related ones).

b. Who is the true and first inventor? (Should the law permit that the AI application be named as the inventor or should it be specified that a human being be named as the inventor? If so, should the law let the stakeholders take the decision by internal arrangements as to how the human inventor is to be determined. If we grant patent to AI as inventor, can it be assigned to the party who will get maximum profit through commercialization? Can ownership be decided upon Coase Theorem?)

c. Who owns and is therefore liable for the acts of the AI technology? Does the legal responsibility of the illegal action of an AI lie with its owner or its user or its operator? Should the current stance of the creator being liable despite him lacking mens rea or even actus reus undergo a sea change? If the cause of the illegal act cannot be traced to a human actor, who has the liability?

d. Interpretation of inventive step or nonobviousness

 e. Issues pertaining to conditions of disclosure (specifically how it can be fulfilled where algorithms of machine learning are not static but change over time and tackling best vs. worst embodiment issues: AI application may disclose worst embodiment while keeping the best embodiment undisclosed and obtain patent without full disclosure.)

f. If AI plagiarizes a creation or reproduces an invention, how can infringement and damages be determined?

g. Are current legal provisions sufficient? Should a sui generis system of IP rights for AI generated inventions be raised? Or should the AI-IPR interface be put on hold till the D-day arrives when AI technology is better understood? (Considering the fact that at the present stage of development, examples of content generated by absolutely autonomous AI systems are few and far between).

Let us analyze these issues in the Indian context.

The Indian Context: Patent Protection for AIs

i. Subject matter eligibility

A patent can be understood as the exclusive right over an invention. AI enabled systems can create inventions which ordinarily result as an outcome of the application of human cognitive processes. However, there are legal hitches. For instance, the prohibition in Section 3(k) of the Indian Patents Act 1970 (as amended in 2002) though limited to “computer programme per se” has raised many eyebrows and has given rise to a host of interpretations with patents in some cases being granted to combinations of hardware and software or software with demonstrable technical application. To put it a bit differently, the Indian Patent Office’s stance on patentability of computer related inventions lacks clarity. However a silver line in the horizon is the removal of the rigid requirement of only computer programs in conjunction with a novel hardware being eligible for a patent⁸. But we have miles to go. The need of the hour is a solid framework for patenting AI inventions, the hallmark of which shall be predictability, at all times ensuring that the nation remains receptive towards innovators. Rejecting all AI patents on the premise that all AI will use the basic modus operandi of data collection, standardization, re-iterate/self-machine learning, data organization, data processing and finally output as desired by human brain will be counterproductive. One can perhaps take a leaf out of the experience of the European Patent Office which has already held its first conference on AI and patenting. Needless to say, the aim of such a strategy shall be to make India a creator of AI rather than a passive adopter of the same. At the same time, unsupervised AI can be a threat to humanity and may perhaps need to be categorized as “destructible/hazardous invention”.

ii. Who can apply for a patent?

As technology moves forward from an era of weak AI to strong AI, not to mention of superintelligence, the question that comes forth is whether AI technology can be considered as an inventor. However, this is still a grey area. To quote the legal provisions. Section 6 of the Patents Act, 1970 prescribes that “any person claiming to be the true and first inventor of the invention” can apply for a patent. The term “true and first inventor” is defined in Section 2(1)(y) as follows:. “It does not include either the first importer of an invention into India or a person to whom an invention is first communicated from outside India”.

The Section puts forth an exclusionary definition and does not specifically state that the “true and first inventor” should be a human. An implicit conclusion is that the Act provides the wherewithal for inclusion of works by AI systems. However, the drawing on the wall is not so clear. For instance, Section 2(1)(p) defines the term “patentee” as a person for the time being entered on the register as the grantee or proprietor of the patent”. The Act defines “person interested” as follows:-

“Person interested” includes a person engaged in or in promoting research in the same field as that to which the invention relates.

The above definitions state that it should be a person (legal person) and thus the intention of the legislature for the Act in general can be understood to be tilted in favour of humans and other legal persons. This brings forth the need to amend the legislation to suit the requirement of evolving scientific systems.

iii. The Three Step Test

In the case of inventions by AI enabled systems, the biggest challenge towards obtaining a patent is satisfying the three step test - novelty, inventive step and being capable of industrial application.

Section 2(j) of the Patents Act defines the term invention in the following terms:- “invention” means a new product or process involving an inventive step and capable of industrial application.

The term ‘new’ is not defined in the Act. Though the term “new invention” is defined in the Act, this definition is redundant as the term is not used anywhere else in the Act. Hence resorting to the common law meaning of the term, we can safely conclude that a claim is considered new if all the elements of the claim cannot be found in a single prior art reference.⁹. Prior art herein means everything made available to the public by means of a written or oral description, by use or in any other way before the priority date of the invention. The crucial question that arises in the context of AI can be phrased in the following terms.

“While an AI system will certainly have access to prior art, due to its overseeing human scientists feeding in information, is it truly independent, let alone capable to make a judgment on whether or not its invention can account for something novel?”¹⁰

The questions involving inventive step are more complicated. The statute provides the following definition for the term inventive step under Section 2(j) (a).

 “Inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art. The Supreme Court in the Novartis case broke down Section 2(ja) into its elements in the following way:

“It [The product] must come into being as a result of an invention which has a feature that:

a. Entails technical advance over existing knowledge

Or

b. Has an economic significance

And

c. Makes the invention not obvious to a person skilled in the art”.

In the light of the above, it needs to be conceded in the context of AIs that chances of making innovations on existing models or concepts which is not obvious to a person skilled in the art is certainly more difficult to achieve than novelty¹¹ . Needless to say, the technology must first advance to equip these systems with a human-like intelligence so that judgment calls on new situations can be made by them¹².

iv. Issues related to ever greening:

An important question that needs to be addressed is whether an AI patent application citing another AI application will deteriorate the quality of the invention as even a minor logical tweak would lead to another innovation. Whether in such cases we need to insert provisions such as Section 3(d) of the Patent Act is an issue that needs to be debated in detail. Needless to say, this point is important not only to avoid patent ever greening but also to deal with the issue of patent trolls.

v. Issues pertaining to provisional applications:

In the AI context, a pertinent question is whether provisional application should be allowed or not (as mere submission of idea to claim priority date will give a horizon of one year to broaden the scope of the claims - perhaps to an unlimited extent).

Copyright and AI

The main question raised in this context is whether copyright should be attributed to original literary and artistic works that are autonomously generated by AI or should a human creator be required. It needs to be mentioned here that artworks of Picasso and other masters have been recreated by AI - based systems and in 2018, one such work was sold for 432500 USD. But the fact remains that AI art is a subset of generative art and is algorithmic -- repeatable in nature to be specific -- and frequently open source - shareability being its hallmark. One side argues the inability of computers to be as creative as human whereas the other disagrees on the pretext of defining creativity¹³. The generally accepted answer as on date is that while AI applications are capable of producing such works autonomously, this capacity does not fit with the copyright system which is ultimately associated with the human creative spirit. On the theoretical front, Lovelace expresses the opinion that machines lack creativity. She relies on the logic that creativity is the ability to do the unpredictable, unlike something machines always do. Put it a bit differently, machines the hall mark of which is rule bound behaviour (and hence AIs) cannot be afforded copyright protection. The counter view is based on judgments that the nonhuman nature of the source of a work should not be a bar to copyright.

The US Copyright Office’s December 2014 update to the Compendium of Practices that added requirements for human authorship adds weight to the former view. However, provisions in laws promoting innovation such as the IP Clause of the US Constitution do not explicitly mention a human requirement. Mention also needs to be made of the WIPO definition of IP that talks about creations of the mind but does not specify whether it must be a human kind. However, recently a San Francisco Court in Naruto v. Slater held that animals by virtue of the fact that they are not humans lack locus standi under Copyright Act to sue for infringement. Needless to say, the judgment reinforced arguments that if Naruto, the monkey cannot sue for copyright infringement, similar should be the situation vis-a-vis AI systems. Moreover, as aptly pointed out by Tripathi and Ghatak¹⁴ even if countries admitted to granting copyrights to the works of an AI, the question of who gets that copyright remains cryptic because the current status of law requires a legal personhood of a right holder, something which an AI lacks unless its creator is granted that on its behalf. However, what happens if the AI system was a purchase -- whether copyright will be granted to the creator or the buyer. The answer lies in favour of the creator in countries like England and New Zealand, but this still does not answer the above question.

Three landmark judgments need special references here:

a. Burrow Gilles Lithographic Co. v. Sarony (III US 53 (1884)).

The case discussed the possibility of granting copyright protection to a product which is the output of a machine. The Court addressed the dichotomy between creative and mechanical labour and held that purely mechanical labour is per se not creative. If a strict approach on these lines is resorted to, granting copyright for works created by AI would be difficult.

b.Bleistein v. Donaldson Lithographing Co., 188 US 239 (1903).

The Court herein differentiated between a human work and something artificial. Justice Holmes delineated the uniqueness of human personality and stipulated the same as a prerequisite to a copyright.

c. Alfred Bell & Co v. Catalda Fine Arts Inc 191 F. 2d 99 (2d Cir, 1951).

The Court lowered the standard for originality and held that for the work to be original, it must not be copied. This judgment was a respite for the advocates of copyrights for AI generated works as it is not copied even though it is generated through algorithms.

In the Indian context, the challenge to copyright protection vis-a-vis works of AI is Section 2(d) of the Copyright Act, 1957 which defines author as:

“in relation to any literary, dramatic, musical or artistic work which is computer generated, the person who causes the work to be created”.

For a person to cause a work to be created, proximity of the person with the work is important and hence person here means a human or a legal person much to the chagrin of advocates of copyright to AI systems.

Conclusion

As we move away from IA (Intelligent Automation) to AI driven by machines, the questions around implications of such a technology are growing. Daimler-Benz has already tested self-driving trucks on public roads, AI technology has been applied effectively in medical advancements, a film written by an AI debuted online recently and AI has even found its way into the legal profession. And Sophia, a social humanoid robot developed by Hanson Robotics, a Hong Kong based company recently became the first robot to receive citizenship. Another exciting field intertwined with AI is the concept of Artificial, Neural Networks (ANNs) - systems of hardware and software patterned after the operation of neurons in the human brain. Neural networks are considered to be stepping stones in the search for AI. The first computational model of ANNs - popularly called threshold logic -was developed by Warren Mc Culloch and Walter Pitts in 1943. Thereafter ANNs have come a long way particularly because of their distinct ability to detect the underlying relationship between different sets of data and due to their dynamic nature - adapting to changes in output so that they provide the best feasible result without changing the input nodes. A major potential of ANNs lies in the field of finance - in particular enhancing productivity of businesses in the global arena. However it needs to be cautioned here that the accuracy of ANNs depends on the choice of input variables, architecture selected for a specific problem and training pattern of ANNs , among other factors.

Add to this the issue of “deep fakes” and the picture is even more complex. Deep fakes are Al-enhanced fake pictures and videos that take leverage of a machine learning algorithm to insert faces and voices into video and audio recordings of actual people and enables the creation of realistic impersonations. Deep fake technology wrongly portrays people saying or doing things they never said or did. In 2012, an AI chatbot named Sim Simi reportedly managed to teach itself ‘Thai’ through communication with users in Thailand. Using the new language and phrases, it had learned from dealings with users, Sim Simi went on allegedly to defame the Thai Prime Minister.

In this unfolding scenario, what is needed is perhaps a uniform treatment of the AI system across the board wherein all member nations of multilateral trading agreements begin to recognize its presence by bringing in an amendment to TRIPS. Passing of an AI data protection Act which could usher in a regulator to adjudicate acts of AIs, and more specifically put forth remedies for civil and criminal offences committed by an AI is also the need of the hour. It must incorporate legal provisions to prevent innocent creators from being prosecuted for acts of the AI for which they have no control what so ever. And these measures must usher in long sighted visionary steps targeted at specifying how strong AI and superintelligence should be treated in the IP ecosystem. For, we have to be prepared for the D-day when machines enforce, defend and even prosecute. Needless to say, the challenge before the comity of nations and its denizens is to harness this amazing technology for the betterment of humanity by laying the foundation of a solid legal framework, nay an AI specific, but mankind centric jurisprudence.

Foot Notes:

1.   Raquel Acosta, Artificial Intelligence and Authorship Rights (17/2/2012) available at http://iolt.law.harvard.edu/digest/artifical-intelligence-and-authorship-rights, accessed on14.9.2018.

2.^.   IAM Yearbook 2019, www.IAM.media.com”, “Are we ready for AI disruption? An Indian patent law perspective”: Pankaj Soni and Kartikay Vikrant Singh, Remfry and Sagar

3.   Alan Turing, Computing Machinery and Intelligence, 59 MIND 236, 433-460(1950).

4.   A.Johnson Laird, Neural Networks: The Next Intellectual Property Nightmare? 7 The Computer Lawyer 14(March 1990).

5.   R. Kurzweil, The Age of Intelligent Machine, 272-275 (MIT Press: 1990).

6.   WIPO, Conversation on IP and AI. Draft Issues paper on Intellectual Property Policy and Artificial Intelligence, WIPO IP/AI/2/GE/20/l,13 December 2019.

7.   R.Wexler, “ Life, Liberty and Trade Secrets: Intellectual Property in the Criminal Justice System”,
70 Stan I. Rev.pp 1343, 1373-74 (2018).

8.   Office Order No. 36 (2017), Intellectual Property Office (India), http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/Office-Order-No-36-of-2017-for-Revised-Guidelines-for-Examination-of-CRIs.pdf.

9.   Glaverbel SA v. Dave Rose and Ors. 2010 (43) PTC 630.

10.Christ University Law Journal 2018 Vol. 7, No.l, 83-97, Artificial Intelligence and Intellectual Property Law, Swapnil Tripathi and Chandni Ghatak.

11.Ronald Yu, Should An Artificial Intelligence be allowed to Get a Patent? ROBOHUB, http://robohub.org/should-an-artificial-intelligence-be-allowed-to-get-a-patent/

12.Christ University Law Journal 2018 Vol.7, No.1, 83-97, Artificial Intelligence and Intellectual Property Law, Swapnil Tripathi and Chandini Ghatak.

13.David Gelenter, The Muse in the Machine (Free Press, 1994).

14.Christ University Law Journal 2018 Vol.7, No.l, 83-97, Artificial Intelligence and Intellectual Property Law, Swapnil Tripathi and Chandini Ghatak.

Benny V. Mini (2021 (2) KLT 2) – Per Incuriam

(By S.K .Premraj Menon, Advocate, High Court of Kerala)

i. ¨É½ÉþVÉxÉÉä ªÉäxÉ MÉiÉ: ºÉ {ÉxlÉÉ: (mahajano yena gatah sa panthah) - a verse in the epic Mahabharata meaning to follow the path tread by the great, wise people is the basis of the very concept of precedent. Also pertinent is to advert to what Aristotle said that the habit of lightly changing the laws is an evil.

ii. Recently, the Kerala High Court in Benny v. Mini (2021 (2) KLT 2) considered the question is it permissible to withdraw one’s consent in a petition filed for dissolution of marriage by mutual consent, filed pursuant to a compromise and concluded that once the parties agree to file a joint petition, pursuant to an agreement/compromise in a pending proceeding, then the parties are estopped from resiling from the agreement, especially when one party has performed his part of the terms of the agreement. The Division Bench at para 24 of its judgment went on to term this as a sharp practice, which cannot be permitted or tolerated for a moment as it would shatter the faith of the litigants in the justice delivery system and make a mockery of alternative dispute resolution mechanism.

iii. The Division Bench relied on a Bombay High Court Division Bench decision in Alumal Kalandari v. Jahnavi Prakash Kalandari (2011 (2) KLT OnLine 1116 (Bom.)) holding at para 11 that it was a case of almost identical nature, which interpreted an analogous provision under Section 13-B of the Hindu Marriage Act,1955 and held that when the parties agree to convert a pending petition for divorce to a petition for divorce by mutual consent on the basis of a compromise and on one of the parties fulfilling the terms of the compromise, the other party cannot unilaterally withdraw consent in view of Order XXIII of the Code of Civil Procedure, 1908. Except for the fact that the said decision interpreted an analogous provision under Section 13-B of the Hindu Marriage Act, 1955, Alumal Kalandari v. Jahnavi Prakash Kalandari (supra) was never of an almost identical nature at all. The facts in that case were that during pendency of a divorce petition filed by the wife on the ground of cruelty, the parties decided to divorce by mutual consent and accordingly executed Consent Terms, which were placed on record before the Family Court, seeking to convert the divorce petition into joint petition for divorce by mutual consent. As per the Consent Terms, the husband agreed that the custody of both the children would remain with the wife, who in turn agreed to give access of the children to her husband during the weekend on every Sunday at a designated place and time and during the Diwali and Christmas vacations every day at the same venue and same time. Insofar as summer vacation, temporary custody of both the children were to be given to the husband for the first half of the vacation when he could take the children away from Pune for vacation under intimation to the wife. The wife waived her claim of maintenance, alimony and her stridhan. The parties also agreed to withdraw all the criminal and civil proceedings filed against each other. In the said judgment, the Bombay High Court clearly holds that in a petition under Section 13-B of the Hindu Marriage Act, 1955, the Court must satisfy itself that the consent given by the parties continues till the date of granting decree of divorce and that even if one party unilaterally withdraws his/her consent, the Court does not get jurisdiction to grant decree of divorce by mutual consent in view of the mandate of Section 13-B. The Court despite holding that when a consent is unilaterally withdrawn, the Court will have to be satisfied that: (i) there is sufficient, good and just cause for allowing the party to withdraw his consent, lest, it results in permitting the party to approbate and reprobate and (ii) that the other party would not suffer prejudice which is irreversible, due to withdrawal of the consent. If this twin requirement is not satisfied, the Court should be loath to entertain the prayer to allow the party to unilaterally withdraw his/her consent. As clear from para 4 of that judgment, the sole reason mentioned in the husband’s application was that the wife failed to comply with her obligation to provide access of the children to him and that being so, he was withdrawing his consent, keeping in mind the paramount interest and welfare of the children. He had not pleaded any material facts, even to remotely suggest that he had signed the Consent Terms due to force, fraud or undue influence, which was required under Sections 23(1)(bb) of the Hindu Marriage Act, 1955 as could be seen from para 13 thereof, But ultimately, as evidenced by para 17 thereof, the circumstance for the Bombay High Court having held that the husband could not have unilaterally withdrawn the consent was that the sole reason or justification given by the husband for withdrawing his consent already given was denial of access of the children, which fact was not substantiated by him. On the other hand, the material on record indicated that the real reason was the inability of the husband himself to meet the children as he was in jail in connection with criminal cases and also because the children were unwilling to meet him. In that case, the wife even waived her claim of maintenance and stridhan and withdrew civil and criminal actions initiated by her against her husband. It was in that peculiar context, the Bombay High Court found that the husband cannot be permitted to withdraw his consent as it would result in bestowing premium on him. It was in the said peculiar facts, such a judgment was passed, which facts and circumstances are conspicuously absent in Benny v. Mini (supra). In Benny v. Mini (supra), the sole circumstance that ` 10,00,000/- was paid by the husband to the wife (which the wife contends there was a shortage of few thousands), could have been remedied by the Court either by directing to refund the same or by relegating the husband to work out his remedy in accord with the prevailing laws. Merely because of the reason that the counsel for the wife when asked if his party was willing to return the compensation amount received by her from the husband, answered in negative, holding that the wife has taken advantage of her own wrong and was attempting to unlawfully enrich herself, the settled position of law could not have been short-circuited at all. The Court which has dealt with Sections 2(e) and 51 of the Indian Contract Act, 1872 ought to have realized that there were provisions in the Indian Contract Act, 1872 which prescribe the remedy in such situations.

iv. The Supreme Court dealing with Section 13-B of the Hindu Marriage Act, 1955, in Sureshta Devi v. Om Prakash (1991 (1) KLT 511 (SC) = AIR 1992 SC 1904) settled the principle that it was open to one of the parties at any time till the decree of divorce is passed to withdraw the consent given to a petition for divorce on mutual consent. A similar situation was dealt with by the Apex Court in Smruti Pahariya v. Sanjay Pahariya (2009 (3) KLT Suppl.321 (SC) = (2009) 13 SCC 338) wherein, approving the principles laid down in Sureshta Devi v. Om Prakash (supra), the Court held that the judgment in Ashok Hurra v. Rupa Ashok Hurra (1997 (2) KLT SN 20 (C.No.21) SC = AIR 1997 SC 1266) was to be treated as one, rendered in the facts of that case. The Court even went to the extent of stating that even the Constitution Bench decision in Rupa Ashok Hurra v. Ashok Hurra (2002 (2) KLT SN 76 (C.No. 91) SC = (2002) 4 SCC 388), did not express any view contrary to the one in Sureshta Devi v. Om Prakash (supra). The decision in Anil Kumar Jain v. Maya Jain (2009 (3) KLT OnLine 1135 (SC) = AIR 2010 SC 229) considered the short point as to whether a decree can be passed on a petition for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955, when one of the petitioners withdraws consent to such decree prior to the passing of such decree and followed Sureshta Devi v. Om Prakash (Supra). It needs to be noted that in effect, the simple question which was considered in Benny v. Mini (supra) and Anil Kumar Jain v. Maya Jain (Supra) was one and the same and being so, the Kerala High Court was bound to follow the Supreme Court judgment and not to hold otherwise. Hitesh Bhatnagar v. Deepa Bhatnagar (2011 (2) KLT SN 56 (C.No. 74) SC = 2011 (5) SCC 234) also approves the principles in Sureshta Devi v. Om Prakash (supra). After an exhaustive survey of various precedents on the subject, a Division Bench of the Kerala High Court in Rajesh R.Nair v. Meera Babu (2014 (1) KLT 217), categorically held that in a petition seeking for divorce on mutual consent, free consent of both the parties is required till the Court holds an enquiry and that if consent is withdrawn by one party, Court will have no jurisdiction to entertain the petition or pass a decree of divorce on mutual consent. The Court also considered whether once consent is given and is later withdrawn by one of the parties, whether the Court can enquire into the bona fide or otherwise of the withdrawal of the consent and held that the statute specifically recognizes the right of the parties to withdraw the consent even at the stage of the enquiry and that right available to the parties is an unqualified right and for any reason whatsoever, if the parties or one of them, choose to withdraw their consent, such withdrawal of consent is in exercise of the statutory right available to them and being so, it is not for the Court to probe into the bona fide or reasonableness of such withdrawal of consent and once consent is withdrawn, the only option available to the Court is to close the matter at that stage. The only difference between Rajesh R.Nair v. Meera Babu (supra) and Benny v. Mini (supra) was that the former was one concerning Section 13-B of the Hindu Marriage Act, 1955 whereas the latter considered Section 10-A of the Divorce Act, 1869. Section 13-B of the Hindu Marriage Act, 1955 reads :

Divorce by mutual consent - (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Section 10-A of the Divorce Act, 1869 reads :

Dissolution of marriage by mutual consent -- (1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001 on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition, referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.

Section 13-B of the Hindu Marriage Act, 1955 and Section 10-A of the Divorce Act, 1869 are regarding divorce solely based on mutual consent. The provisions imply that ‘mutual consent’ is the common consensus of the parties. Mutual consent cannot be unilateral. Hence, if there is no consent by the spouses, a decree of divorce cannot be passed. Continuing consent of both the parties is sine qua non for passing a decree of divorce by mutual consent. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the Court to pass a decree of divorce on mutual consent. The period of interregnum as provided in the foresaid Sections is between six months to eighteen months. The rationale for the minimum period of six months is to provide time to parties to think over and the outer limit is provided so that the matter does not linger on indefinitely. Needless is to mention that a Division Bench of the Kerala High Court in Saumya Ann Thomas v. Union of India & Anr. (2010 (1) KLT 869) held that the period of two years stipulated in Section 10-A (1) of the Divorce Act, 1869 was violative of Articles 14 and 21 of the Constitution of India and held that it must be read as a period of one year, which was reiterated in Tomy Joseph v. Smitha Tomy (2018 (4) KLT 770), wherein the Kerala High Court held that divorce by mutual consent is a secular concept and there can be no discrimination on the ground of religion against persons who want divorce by mutual consent. It was also held that both Section 13-B of the Hindu Marriage Act, 1955 and Section 10-A of the Divorce Act, 1869 are almost pari materia except with regard to the period during which the spouses lived separately and that in all other aspects, the two provisions are almost identical and it was thereupon, the Court went on to hold that the dictum in Amardeep Singh v. Harveen Kaur (2017 (4) KLT 367 (SC) = AIR 2017 SC 4417) would be applicable in case of a petition filed under Section 10-A of the Divorce Act, 1869 as well. The Court held that Section 10-A of the Divorce Act, 1869 was in substance, a verbatim reproduction of Section 13-B of the Hindu Marriage Act, 1955 as well as Section 28 of the Special Marriage Act, 1954. It was held that the beneficiaries under the provisions of these statutes were persons who want divorce by mutual consent and who file joint petition for that relief and that there can be no discrimination among them on the ground of religion as divorce by mutual consent is a secular concept. This gives a clear indication that the principles laid down in Section 13-B of the Hindu Marriage Act, 1955 are squarely applicable for matters under Section 10-A of the Divorce Act, 1869. In Benny v. Mini (supra), though the Division Bench took note of the decisions in Sureshta Devi v. Om Prakash (supra), Anil Kumar Jain v. Maya Jain (supra), Hitesh Bhatnagar v. Deepa Bhatnagar (supra) and Rajesh R.Nair v. Meera Babu (supra), it did not follow those binding precedents and in effect held otherwise. The Supreme Court in Government of Andhra Pradesh & Ors. v. A.P.Jaiswal & Ors. (2001 (1) KLT OnLine 1019 (SC) = AIR 2001 SC 499) held that consistency is the cornerstone of the administration of justice and which creates confidence in the system and that this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, Courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principles are based on public policy and if these are not followed by Courts then there will be chaos in the administration of justice. Precedents must be followed by all concerned and deviation from the same should be only on a procedure known to law. In U.P. Gram Panchayat Adhikari Sangh & Ors. v. Daya Ram Saroj & Ors. (2007 (1) KLT OnLine 1114 (SC) = (2007) 2 SCC 138) – a case where an earlier decision of a coordinate Bench was ignored by a Division Bench of the High Court, the Apex Court observed that judicial discipline is self-discipline and that it is an inbuilt mechanism in the system itself, which demands that when the decision of a coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity. Thus, the dictum in Rajesh R.Nair v. Meera Babu (supra) could not have been overlooked or ignored. In Official Liquidator v. Dayanand & Ors. (2008 (4) KLT SN 67 (C.No. 62) SC = (2008) 10 SCC 1), taking note of several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches and even ignoring the law laid down by the Apex Court, the Court went on to term those as illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. Article 141 of the Constitution of India unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India and the decisions in Sureshta Devi v. Om Prakash (supra), Anil Kumar Jain v. Maya Jain (supra) and Hitesh Bhatnagar v. Deepa Bhatnagar (supra) were to be scrupulously followed, instead of being overlooked.

v. The precedent relied on by the Kerala High Court viz., Alumal Kalandari v. Jahnavi Prakash Kalandari (Supra) is clearly distinguishable and should not have been applied at all. The ratio of any decision must be understood in the background of the facts of that case. What is of the essence in a decision is its ratio and not every observation found therein or what logically follows from the various observations made in it. It must be remembered that a decision is only an authority for what it actually decides. It is trite that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. In Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. (2003 (1) KLT OnLine 1111 (SC) = (2003) 2 SCC 111), the Supreme Court held that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision While interpreting a judgment, Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Accordingly, blind reliance on a decision is never proper, as held in Union of India & Anr. v. Major Bahadur Singh (2005 (4) KLT OnLine 1131 (SC) = (2006) 1 SCC 368). As held in Bharat Petroleum Corporation Ltd. & Anr. v. N.R.Vairamani & Anr. (2004 (3) KLT OnLine 1234 (SC) = AIR 2004 SC 4778), observations of Courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In Punjab National Bank v. R.L.Vaid & Ors. (2005 (1) KLT SN 9 (C.No.12) SC = (2004) 7 SCC 698), the Supreme Court had held that there is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances in both the cases. In Ambika Quarry Works v. State of Gujarat & Ors. (1987 (1) KLT OnLine 1003 (SC) = (1987) 1 SCC 213), reiterating Lord Halsbury in Quinn v. Leathern (1901 AC 495), it was held that the ratio of decision must be understood in the background of the facts of that case and that a case is only an authority for what it actually decides, and not what logically follows from it. In H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur & Ors. v. Union of India, (1971 KLT OnLine 1024 (SC) = (1971) 1 SCC 85), the Supreme Court held that it is not proper to regard a word, a clause or a sentence occurring in a judgment, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment. Also profitable is to advert to Commissioner of Income Tax v. Sun Engg. Works (P) Ltd. (1992 (2) KLT OnLine 1015 (SC) = (1992) 4 SCC 363) where the Court held that it is neither desirable nor permissible to pick out a word or a sentence from the judgment of the Court, divorced from the context of the question under consideration and treat it to be the complete law and that a judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. The decision on the question involved in the case in which it is rendered and while applying the decision to the later case, the Courts must carefully try to ascertain the true principle laid down by the decision and not to pick out words or sentences from the judgment divorced from the context of the question under consideration by the Court.

vi. In my humble opinion, a complete reading of Benny v. Mini (supra) unmistakably points out that the said decision is wholly wrong and cannot stand the light of the day, as being one laying down a totally erroneous proposition of law which would have the deleterious effect of the Family Courts in Kerala being misguided and dispensing injustice in the cases of divorce on mutual consent. One has to keep in mind that in State of Bihar v. Kalika Kuer & Ors. (2003 (2) KLT SN 72 (C.No.95) SC = (2003) 5 SCC 448) it has been held that the rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue. Going by the settled principles of law, Benny v. Mini (Supra) is per incuriam. Let not the salutary statutory provisions regarding divorce on mutual consent be rendered otiose and meaningless.