Can the Courts Add Words to the Constitution ?

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

The judgment of the High Court of Kerala in John K.Illikkadan v. Union of India
(2020 (1) KLT OnLine 1087 (W.A.No.107 of 2020)indeed raises number of doubts, if not poignant questions providing an opportunity for excellent examination and exercise in the interpretation of the Constitution of India.

Article 217(2) reads as follows:-

“(2) A person shall not be qualified for appointment as a Judge of a High Court
unless he is a citizen of India and –

(a) Has for at least ten years held a judicial office in the territory of India; or

(b) Has for at least ten years been an Advocate of a High Court or of two or more such courts in succession”.

The qualifications prescribed under the supreme document of the country are not available to be altered, amended, added or subtracted. That however, is precisely what the High Court has upheld in the case referred to above. The High Court has taken the following view:-

“The appellant, admittedly, has crossed the age of 58½ years when a vacancy due to him had arisen.  The learned Standing Counsel also produced before us various recommendations made by the Collegium of the Hon’ble Supreme Court, wherein there is a specific reference to the age limit of 58½ years, insofar as the District Judges are concerned.”

“The copy of the letter dated 24.09.2004 of the Ministry for Law and Justice, Government of India received by the Chief Justice of this Court was extracted in the impugned judgment.  It specifically speaks of the Chief Justice of India having observed that the recommendations made to fill up the vacancies set apart for Judicial Officers would be considered, only of those Judicial Officers, who have not crossed the age limit of 58½ years.”

This, in my humble and respectful submission amounts to adding words which are not available in the Constitution of India, in regard to basic qualifications for appointment as a Judge.  The people of the country have spoken through the Constitution what the qualifications the Judges going to sit in judgment over them should possess.  The final arbiter of the nation is its people.  No Court can add to any of the provisions of the Constitution.  This is far too well settled a proposition in the interpretation of statutes.  The Supreme Court has held that the Constitution is a living document and its interpretation will have to be made keeping in mind the objective of the Constitution-makers.  The Constitution does not prescribe any age limit for appointment of a Judge.  It only prescribes an outer limit to hold the office beyond an age.  Can that provision be supplemented by a so called policy evolved by the Supreme Court that District Judges beyond the age of 58 will not be considered for appointment?  Can that have statutory force? No circular, guideline, order or even statutory provision contrary to the mandate of the Constitution shall survive.  Very recently in relation to the 10th Schedule of the Constitution of India regarding disqualification of defecting members,this is what the Supreme Court said:

“It is clear that nothing can be added to the grounds of disqualification based on convenience, equity, logic or perceived political intentions.”(See Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly(2020) 2 SCC 595).

The Court relied on the principle earlier declared by it that when the law does not prescribe such a disqualification it cannot be imposed by Courts.  (See G.Narayanaswami v. G.Pannerselvam(1972 KLT OnLine 1138 (SC) = (1972) 3 SCC 717).  The Court observed:-

“We think that, by adding a condition to be necessary or implied qualifications of a representative of the graduates which the Constitution-makers, or, in any event Parliament, could have easily imposed, the learned Judge had really invaded the legislative sphere.  The defect, if any, in the law could be removed only by law made by Parliament”.

In the same year in N.S.Vardacharithe Supreme Court upheld the same principle. The Court said:

“Once a candidate possesses the qualifications and is not subject to any of the disqualifications specified in the law, he is qualified to be a candidate and any other consideration becomes irrelevant”.

It does not appear that the attention of the High Court has been drawn to the above principles evolved by the Apex Court from Charanjith Lal (1951) to S.R.Choudhary
(2001)in which the Supreme Court held that the will of the people cannot be permitted to be substituted to political expediency of the Prime Minister or the Chief Minister as the case may be.  Can what is forbidden to the elected in a democracy be permitted to the selected of the Supreme Court?  Years back, the Privy Council held “If the text is explicit, it is conclusive alike in what it directs and what it forbids”.

In the year 2004 in Manoj Narula v. Union of India (2014 (4) KLT SN 5 (C.No.5) SC =(2014) 9 SCC 1), the Supreme Court elaborated the principle of constitutional interpretation as follows:

“When there is no disqualification for a person against whom charges have been framed in respect of heinous or serious offences or offences relating to corruption to contest the election, by interpretative process, it is difficult to read the prohibition into Article 75(1) or, for that matter, into Article 164 (1) of the Constitution to the powers of the Prime Minister or the Chief Minister in such a manner.  That would come within the criterion of eligibility and would amount to prescribing an eligibility qualification and adding a disqualification which has not been stipulated in the Constitution.  In the absence of any constitutional prohibition or statutory embargo, such disqualification cannot be read into Article 75(1) or Article 164(1) of the Constitution”.

It is unfortunate that even in regard to the applicability of the guidelines, selective discrimination is practised.  In the past particularly after 2004, number of persons crossing the age of 58 had been appointed. Some members of the Bar had held judgeship only for a brief period of three years before attaining the age of 62.  If the High Court or Supreme Court has evolved a rule, that must be applied alike and not to some alone. There cannot be a guideline applicable exclusively only to one of the two sources prescribed under the Constitution from which appointment can be made.  That will be palpably and plainly discriminatory. Besides it will leave the subordinate judiciary, the back-bone of our judicial frame-work desiderate and disgruntled leading to cascading demoralisation.  The attempt should be to pick up the best and not to pluck them out. Nobody can question the authority of those entrusted with the responsibility of choosing persons for appointment of Judges.  As rightly held by the Division Bench their discretion is not open to challenge and not even justiciable.  A lawyer moved the Madras High Court seeking appointment as Judge, which that Court rightly turned down.

Be it remembered courts function not on the strength of the purse and not also on the might of the sword, but on trust, confidence and credibility earned by their own impeccable track record.

In sum, one is constrained to say with great respect to the learned and eminent Judges that the judgment in Illikkadan, does not represent the correct constitutional law and needs re-visitation, though the rejection of the relief is correct, inevitably.

Sexual Harassment of Women at Workplaces
(Prevention,Prohibition and Redressal) Act, 2013 -- An Analysis

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

Enacted on the 23rd April, 2013 the Act became effective on the 9th December, 2013.The credit for specific guidelines on Sexual Harassment of women at workplaces in India goes to an NGO called “Vishaka”,that took a case of gangrape in Rajasthan to the Supreme Court, challenging the verdict of the High Court of Rajasthan.

The Supreme Court noted (1997 (2) KLT SN 72 (C.No.72) SC = AIR 1997 SC 3011:
(1997) 6 SCC 241 : 1997(5) SCALE 453) the lack of legal recourse against sexual harassment at workplaces. The guidelines issued in this case were to have statutory value until a proper law was enacted by the Parliament. Prior to the guidelines of 1997, such cases were dealt under Sections 354 and 509 of the Indian Penal Code. The Vishakha guidelines took the Parliament sixteen years to codify into a law. The Women and Child Development Ministry steered the SH Act,2013 and it became applicable to Government Offices, the Private sector ,NGOs and the unorganized sector. The Act made the employer responsible to prevent or deter acts of sexual harassment at the workplace, though the Act had shortcomings like giving the powers of a Civil Court to the Internal Complaints Committee (ICC) without specifying whether the members need to have a legal background.

   Section 2 (n) of the Act defines “sexual harassment” by including any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely :

(i)   Physical contact and advances; or

(ii)  A demand or request for sexual favours; or

(iii) Making sexually coloured remarks; or

(iv) Showing pornography; or

(v)  Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Section 2(o) of the Act defines “workplace”, as including :

(i)   Any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate government or the local authority or a government company or a corporation or a co-operative society.

(ii)  Any private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;

(iii) Hospitals or nursing homes;

(iv) Any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;

(v)  Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer or undertaking such journey;

(vi) A dwelling place or a house.

In the year 2017,the Ministry of Women and Child Development launched an online complaint management system titled “Sexual Harassment Electronic Box (www.shebox.nic.in)for registering complaints related to sexual harassment of women at workplace. Those women who have already filed their complaints with the concerned committees constituted under the SH Act,2013,are also eligible to file their complaints over She-Box. As on 25th July,2019,the total number of complaints received through She-Box is 612 which includes 196 from Central Government, 103 from State Governments and 313 from private organizations.

 The Government of Kerala on 27th December,2019 has gazetted (Extraordinary No.3214; S.R.O.No.1012/2019) the Kerala Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act Grant-in-aid Rules,2019; as sub-section (1) of Section 8 of the SH Act,2013 provides that the Central Government may,after due appropriation made by Parliament by law in this behalf make to the State Governments,grants of such sums of money as the Central Government may think fit for being utilized for the payment of fees or allowances referred to in sub-section (4) of Section 7. Section 8(2) mandates the constitution of an agency for the same and Section 8(4) the conditions for keeping of the fund and audit of the said fund.

Sexual harassment is thus accepted as a human rights violation and is acknowledged as a violation of the Constitutionally guaranteed Fundamental Rights.

Few Judicial Pronouncements Prior to the 2013 enactment :

1) Rupan Deol Bajaj  v.  KPS Gill (1995 (2) KLT 830 (SC)).

After being dragged on for more than 18 years, the Supreme Court finally upheld the conviction of KPS Gill for his offence under Sections 354 and 509,I.P.C.,and the Court directed him to pay Smt.Bajaj, Rupees Two lakhs as compensation. This was the first instance where judiciary actually took a stand upholding Women’s Right.

2) Medha Kotwal Lele  v. Union of India(2012 (4) KLT SN 73 (C.No.55) SC = AIR 2013 SC 93).

 The Vishakha judgment was incorporated in the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and the Industrial Employment (Standing Orders) Rules, following the Supreme Court’s Order in this case.

3) Binu Tamta v.  High Court of Delhi(2013 (3) KLT OnLine 1111 (SC) = W.P.(C) No.162 of 2013.

 On 17th July, 2013, the Supreme Court approved of and accepted the Gender Sen-sitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 (“GS Regulations 2013”) and directed the Supreme Court in its administrative jurisdiction to take note of the same and to arrange for the same to be promulgated. Later the Chief Justice of India, ordered via an official gazette notification in September, 2013 the “GS Regulations, 2013”as a comprehensive Code for prevention of sexual harassment of women within the precincts of the Supreme Court of India and for redressal of any complaints that may be lodged in the Supreme Court and contain certain provisions which are not contained in the Act.

Few Judicial Pronouncements after the Enactment of the SH Act, 2013:

1) InAdditional District and Sessions Judge, ‘X’ v. Registrar General, High Court
of Madhya Pradesh & Ors.(2015 (1) KLT SN 49 (C.No.67) SC = AIR 2015 SC 645 = (2015) 4 SCC 91 : 2014 (14) SCALE 238).

   The Supreme Court on 18-12-2014, held that by not strictly abiding by procedure contemplated under “in-house procedure” evolved by the Supreme Court, the Chief Justice of the High Court of Madhya Pradesh introduced serious infirmities in investigative process assigned to three-member committee and thus the Writ Petition was disposed leaving the matter to the Chief Justice of India to reinitiate investigative process, under “in-house procedure”.

2) In P.S.Malik v. High Court of Delhi & Ors. (2019 (3) KLT OnLine 3138 (SC) =
2019 (11) SCALE 242 : 2019 (3) Crimes 357(SC).

 The Supreme Court on 21.8.2019 held,

(i)   There was no error in the decision of the Full Bench of the High Court of Delhi, suspending the Petitioner (Addl.District Judge, Dwarka, New Delhi) and initiate the inquiry proceedings against Petitioner (Para 22),and

(ii)  The right of appeal is given to an aggrieved person only when report is submitted under Section 13 to the employer. The Court held, “No prejudice could be held to be caused to the Petitioner by non-supply of the Preliminary Inquiry Report. Thus, the submission of the Petitioner that due to non-supply of Preliminary Inquiry Report, the proceedings had been vitiated, was not accepted.(para 25)”.

3) Ms.Sunita Thawani’s case :

In a very recent judgment in 2020, the Supreme Court (disposed the S.L.P. filed by Sunita Thawani) upholding the Delhi High Court judgment of July, 2019 whereby the Supreme Court refused to entertain an appeal seeking protection for complainants and witnesses in sexual harassment at workplace cases from victimization or retaliation by the accused or organizations involved, as the SH Act does not have any provision mandating protection for victims and witnesses. The Supreme Court however granted the Petitioner the liberty, “to work out her remedy in accordance with law, including by making representation before the authorities concerned”. The High Court of Delhi had earlier dismissed the plea, stating the Petitioner was effectively seeking the creation of a new offence under the head of “retaliation”, something which the Act has not provided. It had concluded that Ms.Thawani’s plea was “fundamentally misconceived”.

Pausing the Tick of the Clock of Limitation –An Overview

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

a. Vide the Writ Petition (Civil) No. 3 of 2020, the Supreme Court of India has taken suo motu cognizance of the situation arising out of the challenge faced by our country on account of the COVID-19 virus and the resultant difficulties that may be faced by the litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under special laws (both Central and/or State). Vide the order dt. 23rd March 2020 - In Re Cognizance For Extension of Limitation (2020 SCC OnLine SC 343), to obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including the Supreme Court, it has been orderedthat a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or special laws whether condonable or not shall stand extended with effect from 15^th March 2020 till further order(s) to be passed by the Court in the present proceedings. The Court while exercising the power under Article 142 read with Article 141 of the Constitution of India declared that this order was a binding one within the meaning of Article 141 on all Courts/Tribunals and authorities. Vide this order, the Apex Court has virtually stopped the pendulum swing of the clock of limitation from 15^th March 2020till its final order, the legality of which is truly debatable. Going by the Apex Court order, limitation shall be extended with effect from 15^th March 2020 until further orders, meaning thereby that the period of lockdown would be wholly excluded while computing the period of limitation, thus recompensing a litigant for the time lost due to the lockdown. The true intent of the Supreme Court has been clearly indicated that it isto obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings.

b. Limitation entails fixing or stipulating a timeframe for initiation of a legal action. Section 2(j) of the Limitation Act, 1963 reads :

2. Definitions

(j) ‘Period of limitation’ means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of this Act.

Section 3 of the Limitation Act, 1963 reads :

3: Bar of limitation

(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.

(2) For the purpose of this Act

(a) A suit is instituted

(i) In an ordinary case, when the plaint is presented to the proper officer;

(ii) In the case of a pauper, when his application for leave to sue as a pauper is made ;
and

(iii) In the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator.

(b) Any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted.

(i) In the case of a set off, on the same date as the suit in which the set off is pleaded ;

(ii) In the case of a counter claim, on the date on which the counter claims is made in Court ;

(c) An application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court.

Section 4 of the Limitation Act, 1963 reads :

4. Expiry of prescribed period when Court is closed

Where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the Court reopens.

Explanation - A Court shall be deemed to be closed on any day within the meaning of this Section if during any part of its normal working hours it remains closed on that day.

Section 9 of the Limitation Act, 1963 reads :

9. Continuous running of time

Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.

Provided that where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues.

Section 29(2) of the Limitation Act, 1963, reads :

29. Savings

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.

c. The power of the Apex Court to have extended the period of limitation with effect from 15^th March 2020 until further orders could be viewed from two different angles. To support the foresaid order, the following judgments would appear supportive. In L.C.Golak Nath & Ors. v. State of Punjab & Anr. (1967 KLT OnLine 1230 = AIR 1967 SC 1643), speaking for an eleven Judges’ Bench of the Apex Court, Chief Justice K.Subba Rao defined the expression ‘declared’ as being wider than the words ‘found or made’. He went on to hold that to declare is to announce opinion. Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by the Supreme Court is the law of the land. If so, we do not see any acceptable reason why it, in declaring the law in supersession of the law declared by it earlier, could not restrict the operation of the law as declared to future and save the transactions, whether statutory or otherwise that were effected on the basis of the earlier law. To deny this power to the Supreme Court on the basis of some outmoded theory that the Court only finds law but does not make it is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country. In K.Veeraswami v. Union of India(1991) 3 SCC 655), a Constitution Bench of the Supreme Court has stated that the Supreme Court has been a law maker, albeit, in Holmes’s expression, ‘interstitial’ law maker. Indeed, the Court’s role today is much more. It is expanding beyond dispute settling and interstitial law making. It is a problem solver in the nebulous areas. More recently, in Nidhi Kaim & anr. v. State of M.P. & Ors.(2016 (3) KLT OnLine 2153 (SC) = AIR 2017 SC 986), a three Judges’ Bench of the Supreme Court opined that there cannot be any defined parameters, within the framework whereof, this Court would exercise jurisdiction under Article 142 of the Constitution. The complexity of administration, and of human affairs, would give room for the exercise of the power vested in this Court under Art.142, in a situation where clear injustice appears to have been caused, to any party to a lis. In the absence of any legislation to the contrary, it would be open to this Court, to remedy the situation.Certainly, the question arises whether these dicta clothe the Apex Court to exercise its plenary powers, under Articles 141 and 142 and effectively pause the clock of limitation which ticks for every litigant, for the period starting from 15^th March 2020, until further orders, for the purpose of achieving complete justice. On a comprehensive analysis of the forecited judgments, it is clear that Article 142 of Constitution of India empowers the Supreme Court to pass any decree or order necessary for doing complete justice in any matter pending before it. Article 142(1) neither confers a fresh source of power to the Supreme Court for creating new law nor creates an independent basis of jurisdiction, but it acts supplementary to Articles 32 and 136 of the Constitution of India. Basically the power enshrined under Article 142 of Constitution of India is an inherent power of Apex Court. Thus it can be safely concluded that power under Article 142(1) is a repository of the unenumerated power which has been left ‘undefined and uncatalogued’ so that ‘it remains elastic enough to be moulded to suit in the given situation’. There are cases where the Apex Court has laid down guidelines and directions in areas with legislative vacuum and that such exercise was essential to fill the void in the absence of suitable legislation to cover the field, like in Vishaka v. State of Rajasthan
(1997 (2) KLT SN 72 (C.No.72) SC = AIR 1997 SC 3011) for an effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places and Vineet Narain v. Union of India(1998 (1) KLT OnLine 1110 (SC) = (1998) 1 SCC 226) regarding C.B.I. investigations and CVC functioning. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr.(2005 (1) KLT OnLine 1107 (SC) = (2005) 3 SCC 284), the Apex Court went on to hold that Article 142 is an important constitutional power granted to the Apex Court to protect the citizens. In a given situation when laws are found to be inadequate for the purpose of grant of relief, the Court can exercise its jurisdiction under Article 142 of the Constitution. It was reiterated that directions issued by the Supreme Court under Article 142 form the law of the land in the absence of any substantive law covering the field and such directions ‘fill the vacuum’ until the legislature enacts substantive law. Also pertinent are to advert to the guidelines and directions issued by the Supreme Court in various other cases to safeguard, implement and promote fundamental rights, in the absence of legislative enactments. To quote a few are Lakshmi Kant Pandey v. Union of India(1984 KLT OnLine 1203 (SC) =
(1984) 2 SCC 244) regarding adoption of minor children by foreigners,Delhi Judicial Service Association & Ors. v. State of Gujarat & Ors.(1991 (2) KLT OnLine 1007 (SC) =
(1991) 4 SCC 406) regarding the procedures to be followed in the case of arrest and detention of a judicial officer, Union Carbide Corporation v. Union of India(1991 (2) KLT OnLine 1026 (SC) = (1991) 4 SCC 584) regarding compensation in the Bhopal Gas Leak
Disaster, Supreme Court Advocates-on-Record Association & Anr. v. Union of India
(1993 (2) KLT OnLine 1103 (SC) = (1993) 4 SCC 441) devising a specific procedure called ‘Collegium System’ for the appointment and transfer of High Court Judges,Common Cause v. Union of India (1996 (2) KLT SN 9 (C.No.8) SC = AIR 1996 SCC 929) regulating collection, storage and supply of blood for blood transfusions, M.C.Mehta v. State of Tamil Nadu
(1997 (1) KLT OnLine 1004 )SC) = (1996) 6 SCC 756) enforcing the prohibition on child labour and In Re Destruction of Public & Pvt. Prop. v. State of A.P. & Ors.(2009 (2) KLT 552 (SC) =
AIR 2009 SC 2266) regarding suo motucognizance of incidents of mass damage to public property and for setting up a machinery to investigate and award compensation.It is the judiciary which infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society ; thus, by making and moulding the law, takes part in the work of creation and this is much more true in the case of interpretation of the Constitution as held by the seven Judges’ Bench of the Apex Court inS.P.Gupta & Ors. v. Union of India & Ors.(1982 KLT OnLine 1002 (SC) = AIR 1982 SC 149), wherein it was further held that the judiciary has therefore a socio-economic destination and a creative function. It has, to use the words of Granville Austin, to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice.

d. Now looking from the other angle, in the words of Benjamin Cardozo, a Judge is not a legislator in general but highlights how the Judge does legislate new law in close cases to fill gaps between existing rules. The prescribed period of limitation stand extended with effect from 15^th March 2020 till further order(s) to be passed by the Court after lifting the lockdown. In case the prescribed period of limitation to file any petitions/applications/suits/appeals/all other proceedings had expired during the period mentioned in the Supreme Court order, the same would be required to be filed on the day when the Court reopens after the lockdown is lifted, in accord with Section 4 of the Limitation Act, 1963. The Apex Court has consciously invoked its inherent powers under Article 142 of the Constitution of India, being well aware that such extension of limitation is not stipulated within the scope of Section 4 of the Limitation Act, 1963, going beyond the statutory benefit, in effect, suspending the period of limitation for all filings, though used the word ‘extended’. A Court is not open merely because it is physically open. A Court is not merely a building with rooms. One cannot lose sight of the fact that the ongoing COVID-19 pandemic has forced unprecedented measures on the movement of people across the country, even bringing the functioning of Courts and Tribunals to a grinding halt. Social distancing is being preached across India to combat the everyday increasing threat of COVID-19. In fact on 24^th March 2020, the Central Government took the much-needed measure and announced a 21 days complete lockdown in the country, which was subsequently extended. Considering the present scenario, the Courts have become physically inaccessible. When the COVID-19 restrictions prevented parties from filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation, though in a highly technical sense, it could be said that the Court was not closed according to the Court calendar, but for all practical and legal purposes, it needs to be deemed as closed. This is why the Explanation to Section 4 deals with the situation like the present one, where although the Court may not be actually closed, it must be deemed to be closed, if during any part of its normal working hours, it remains closed on that day for any particular reasons and the restrictions imposed by the present lockdown. In Ajay Gupta v. Raju @ Rajendra Singh Yadav (2016 (3) KLT OnLine 2035 (SC) = AIR 2016 SC 3284), without much discussions, the Apex Court went on to state thatwhat is permitted under Section 4 of the Limitation Act, 1963 is the period coming under Court holiday. Whether a litigant can resort to the benefit of Section 4 too remains contentious. True, there may be practical difficulties as the litigants would be constrained to rush to Courts once the lockdown is lifted, sans having had a reasonable opportunity to have access to legal advice and meticulously settle their pleadings due to the restrictions of the lockdown, causing severe prejudice to them. Section 9 of the Limitation Act, 1963 postulates continuous running of time, holding that where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it. The proviso thereto does not take in its fold, the present situation. But that by itself cannot be construed to be a vacuum for the reason that nowhere in the Limitation Act, 1963, the legislature has granted any special concession for extending time in the time of a like crisis. Also relevant is to note that the Constitution does not clothe the Supreme Court with any additional reservoir of powers to meet such exigencies, especially when there is a statute which governs the limitation.

e. The extraordinary powers under Article 142 was brought about to bridge the gap created by any insufficient law so as to meet the ends of justice, grant of which is met out by passing an ‘enforceable decree or order’ by the Supreme Court. Article 142, for the very first time, came under light of interpretation in the Constitution Bench decision in Prem Chand Garg & Anr. v. Excise Commissioner, U.P. & Ors. (1963 KLT OnLine 1238 (SC) =
AIR 1963 SC 996) which added a rider to the exercise of extraordinary powers by laying down that though the powers are very wide, and the same can be exercised for doing complete justice in any case, the Court cannot even under Article 142(1) make an order plainly inconsistent with the express statutory provisions of substantive law. This view was endorsed by a nine Judges’ Bench in Naresh Shridhar Mirajkar & anr. v. State of Maharashtra & Anr.(1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1) and was reiterated by a seven Judges’ Bench in A.R. Antulay v. R.S. Nayak(1988 (1) KLT OnLine 1012 (SC) = AIR 1988 SC 1531). As held by the Constitution Bench in Supreme Court Bar Association v. Union of India (1998 (1) KLT SN 84 (C.No.85) SC = (1998) 4 SCC 409), the plenary powers under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power, exists as a separate and independent basis of jurisdiction, apart from the statutes. It stands upon the foundation, and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which the Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent ‘clogging or obstruction of the stream of justice’. It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed a powers which authorize the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to ‘supplant’ substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. A three Judges’ Bench in State of Punjab & ors. v. Rafiq Masih (White Washer)(2014 (3) KLT SN 42 (C.No.52)SC = (2014) 8 SCC 883) held that Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It is a justice oriented approach as against the strict rigors of the law. The directions issued by the Court can normally be categorized into one, in the nature of moulding of relief and the other, as the declaration of law. ‘Declaration of Law’ as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the highest Court of the land. Of late, a three Judges’ Bench of the Supreme Court in Union of India v. State of Maharashtra & Ors.
(2019 (4) KLT OnLine 2053 (SC) = AIR 2019 SC 4917), surveying plethora of precedents held that Article 142 cannot be applied to encroach upon the field reserved for the legislature. Legislative power can be exercised only by the legislature or its delegate and none else.In Union of India & Anr. v. Deoki Nandan Aggarwal(1992 (2) KLT OnLine 1008 (SC) =
AIR 1992 SC 96), it was held that it is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. The Supreme Court in Ajaib Singh v. Sirhind Co-operative Marketing cum Processing Service Society Ltd. & Anr.(1999 (2) KLT SN 52 (C.No.56) SC = (1999) 6 SCC 82) went on to hold that it is not the function of the Court to prescribe the limitation where the legislature in its wisdom had thought it fit not to prescribe any period. The Courts admittedly interpret law and do not make laws. Personal views of the Judges presiding the Court cannot be stretched to authorize them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature. The function of the Court is only to expound the law and not to legislate.

f.Vis-à-viscondonation of delay in special statutes, in Singh Enterprises v.
Commissioner of Central Excise, Jamshedpur & Ors.(2008 (1) KLT SN 62 (C.No.65)SC = (2008) 3 SCC 70), the Apex Court had considered the provisions of Section 35 of the Central Excise Act, 1944 which also limited the jurisdiction of the Commissioner of Appeals to condone the delay in filing an appeal, beyond a period of 30 days. The Court upheld the view that there was no power to condone the delay after expiry of the said period of 30 days. This was referred in Oil and Natural Gas Corporation Ltd. v. Gujarat Energy Transmission Corporation Limited & Ors.(2017 (1) KLT OnLine 2092 (SC) = (2017) 5 SCC 42), wherein a three Judges’ Bench of the Supreme Court considered the question whether the Supreme Court could condone the delay in filing the appeal underSection 125 of the Electricity Act, 2003, beyond the period as specified therein, wherein the proviso was clear that
the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. Referring to its earlier decisions, the Apex Court held that the delay beyond the specified period could not be condoned, holding that the Act is a special legislation within the meaning of Section 29 (2) of the Limitation Act, 1963 and, therefore, the prescription with regard to the limitation has to be the binding effect and the same has to be followed regard being had to its mandatory nature. To put it in a different way, the prescription of limitation in a case of present nature, when the statute commands that the Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it is uncondonable and it cannot be condoned taking recourse to Article 142 of the Constitution.

g. Overall, though it was a commendable and praiseworthy approach by the Supreme Court, with the litigants looking forward for further clarifications in near future, it does open doors for much legal debates on the core issue as to whether the Supreme Court has the power to issue such an all-encompassing order invoking Article 142 of the Constitution of India, rendering Sections 2 (j), 3, 4, 9 and 29 (2) the Limitation Act, 1963 otiose. Provisions of many
special statutes which prescribe the period of limitation too would be thrown overboard. Though a laudable one, this order arguably transgresses the clear language of the Limitation Act, 1963 and also the special statutes prescribing their periods of limitation, the ramifications of which ripple would tide over a period of time.

An Incongruously Irreconcilable Judgment

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

a. Benjeena.P.J. v. C.P.Pappachan & Anr.(2019 (4) KLT 1017) was a matrimonial appeal which emanated from an order of dismissal of an original petition filed by the appellant. The original petition was filed inter aliaseeking declaration that she was the legally wedded wife of the 1^st respondent, which happened to be dismissed on an application filed by the 1^st respondent under Order XIV Rule 2(2) of the Code of Civil Procedure, 1908, prior to filing his written objections to the original petition.

b. The Division Bench judgment considered five points, of which, this article concerns with the first three viz. (1) whether the Indian Christian Marriage Act, 1872, extends to the territories of Travancore - Cochin area, (2) whether the original petition can be quashed under Article 227 of the Constitution of India or Section 151 of the Code of Civil Procedure, 1908 and (3) whether the original petition could have been rejected under Order VII Rule 11(d) or Order XIV, Rule 2(2)(b) of the Code of Civil Procedure, 1908, on the issue of law.

c. Paras 20 to 25 of the judgment goes on to decide that the Indian Christian Marriage Act, 1872 does not apply to Cochin area. True, Section 1 thereof excludes Cochin area. In para 21 of the judgment, the Hon’ble Court observes that the appellant has alleged that the marriage was solemnized at Varappuzha, and she lived with the 1^st respondent at Varappuzha, which falls within the erstwhile Cochin area. At para 25, it has been held that the Indian Christian Marriage Act, 1872 does not apply to the erstwhile Cochin area, where the cause of action for the original petition arose. In the same para, it is held that the contention of the 1^st respondent that there was no marriage as per the provisions of the Indian Christian Marriage Act, 1872 is unsustainable in law and the finding of the Family Court in this regard is erroneous and is set aside. In para 26, the Division Bench goes on to disagree with the contention that by virtue of Articles 372 and 395 of the Constitution of India, the Cochin Christian Civil Marriage Act, 1095 is still in force as held in Merin Dominic v. Union of India(2017 (1) KLT 950) as the appellant alleged that her marriage with the 1^st respondent was solemnized under the Indian Christian Marriage Act, 1872 and not under the Cochin Christian Civil Marriage Act, 1095. If the appellant had a case that she married the 1^st respondent at Varappuzha, which fell within the erstwhile Cochin State, Indian Christian Marriage Act, 1872 does not apply and what necessarily applies is the Cochin Christian Civil Marriage Act, 1095. From a fleeting glance of paras 3 and 4 of the judgment, the appellant’s case was that after getting acquainted with the 1^st respondent, he used to visit her at her house at Varappuzha and he finally adorned a thali chain on her, accepted her as his wife and they declared before the Altar of Jesus Christ that they have entered into the sacred covenant of marriage, and would staunchly abide by it. Subsequently, on 08.11.2015, the 1^st respondent again tied a thali chain on the appellant at Chittoor Dyana Kendram - a Christian Charismatic Retreat Centre, where also, the 1^st respondent declared that he accepted the appellant as his wife and the appellant confirmed her consent in accepting the 1^st respondent as her husband. Indian Christian Marriage Act, 1872 prescribes certain formalities to be satisfied for marriage among Christians. Section 27 therein reads :

Marriages when to be registered -

All marriages hereafter solemnized in India between persons one or both of whom professes or profess the Christian religion, except marriages solemnized under Part V or Part VI of this Act, shall be registered in manner hereinafter prescribed.

Section 4 of the Indian Christian Marriage Act, 1872 reads :

Marriages to be solemnized according to Act –

Every marriage between persons, one or both of whom is or are a Christian, or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void.

Section 5 deals with persons by whom marriages may be solemnized, which postulates that marriage may be solemnized in India (i) by person who has received Episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of which he is a Minister, (ii) by any Clergyman of the Church of Scotland, provided that such marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of Scotland, (iii) by any Minister of Religion licensed under the Act to solemnize marriages, (iv) by or in presence of a Marriage Registrar appointed under the Act and (v) by any person licensed under the Act to grant certificates of marriage between Indian Christians. Of course, though Section 5 lays down certain classes of persons who can solemnize marriage between Indian Christians, the Act nowhere provides that the marriage amongst the Indian Christians can be proved only in the manner as stated in Section 5. A bare conjoint reading of the foregoing provisions would highlight that the Christian marriage could be performed not in any manner the parties may like, but only in a particular manner as contemplated under the Indian Christian Marriage Act, 1872 and if not, the same shall be void. A cursory glance of the facts as narrated in paras 3 and 4 of the judgment would unambiguously and axiomatically make it clear that the appellant and the 1^st respondent did not undergo any marriage in accordance with the Indian Christian Marriage Act. 1872. It is the averments in the original petition that would govern the maintainability of the civil litigation. Going by the facts pleaded by the appellant as seen in paras 3 and 4 of the judgment, as of now, no marriage between her and the 1^st respondent under the Indian Christian Marriage Act, 1872 could be inferred. The issue itself was whether the Indian Christian Marriage Act, 1872, extends to the territories of Travancore - Cochin area and having said that the appellant’s case was that she married the 1^st respondent under the Indian Christian Marriage Act, 1872 at Varappuzha, which fell within the erstwhile Cochin State, the appellant’s case ought to have fallen, then and there. Moreover, what is seen held in para 26 is that as held in Merin Dominic v. Union of India(supra), by virtue of Articles 372 and 395 of the Constitution of India, the Cochin Christian Civil Marriage Act, 1095 is still in force, was not agreed to by the Division Bench, merely because the appellant contended that her marriage was one solemnized under the Indian Christian Marriage Act, 1872 which in my most humble view appears to be incorrect.

d. Coming to the second issue whether the original petition can be quashed under Article 227 of the Constitution of India or Section 151 of the Code of Civil Procedure, 1908, which is dealt with in para 29 of the judgment, it was held that the decision cited by the 1^st respondent in Tiny @ Antony v. Jacky & Ors. (2012 (1) KLT 155) (mistakenly mentioned as Jacky v. Tiny @ Antony & Ors.in the first sentence of para 17 of the judgment) was overruled by the Hon’ble Supreme Court in Jacky v. Tiny @ Antony & ors.(2014 (2) KLT 303 (SC) = AIR 2014 SC 1615) and hence the original petition could not be quashed. It is relevant to note that in the matter, the Hon’ble High Court was exercising its appellate jurisdiction and certainly not the extraordinary jurisdiction under Article 226 or the supervisory jurisdiction under Article 227 of the Constitution of India. This is being said just to point out the fact that in Jacky v. Tiny @ Antony & Ors.(supra), the Apex Court had made it very clear that if a suit is not maintainable it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings, but in no case power under Articles 226 and Art.227 of Constitution of India can be exercised to question a plaint. Having dealt with the case on hand in its appellate jurisdiction, it was certainly open for the Hon’ble High Court to decide the maintainability of the matter. As held in T.Arivandandam v. T.V.Satyapal & anr.(1977 KLT 965 (SC) = AIR 1977 SC 2421), if on a meaningful, not formal reading of the plaint, it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order VII Rule 11 of the Code of Civil Procedure, 1908, taking care to see that the ground mentioned therein is fulfilled. If clear drafting has created the illusion of a cause of action, the Court needs to nip it in the bud at the first hearing by examining the party searchingly under Order X. Trial Courts are to insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. This position was reiterated in ITC Limited v. Debts Recovery Appellate Tribunal & Ors.(1998 (1) KLT OnLine 1131 (SC) = (1998) 2 SCC 70). In S.P.Chengalvaraya Naidu v. Jagannath& Ors.(1995 (1) KLT SN 23 (C.No.32) SC = (1994) 1 SCC 1), it is held that Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. More often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal gains indefinitely. The Apex Court went on to hold that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. Thus, there was no embargo at all for the Hon’ble High Court to terminate the original petition, if it was not maintainable.

e. Finally the third issue as to whether the original petition could have been rejected under Order VII Rule 11(d) or Order XIV, Rule 2(2)(b) of the Code of Civil Procedure, 1908, on the issue of law, is dealt with in paras 31 and 32 of the judgment. The Division Bench points out that the 1^st respondent has not filed a written objection to the original petition and being so, there is no foundation for his defence to assert that there is no valid marriage between him and the appellant, which issue is a pure question of fact. It was held that necessarily, the 1^st respondent has to file a written objection refuting the allegations in the original petition and then only an issue of fact can be decided. Reliance was placed on Vimal Chand Ghevarchand Jain & ors. v. Ramakant Eknath Jajoo(2009 (3) KLT Suppl. 866 (SC) = (2009) 5 SCC 713) wherein it is said to have been held that determination of an issue without pleading is impermissible. It needs to be adverted to the fact that in Vimal Chand Ghevarchand Jain & Ors. v. Ramakant Eknath Jajoo (supra) the Apex Court never considered Order VII Rule 11(d) or Order XIV, Rule 2(2)(b) of the Code of Civil Procedure, 1908 and on a meaningful reading of the same, the Apex Court never held therein that determination of an issue without pleading is impermissible. On the other hand, in Arasmeta Captive Power Company Private Limited & anr. v. Lafarge India Private Limited (2014 (2) KLT 1053 (SC) = AIR 2014 SC 525), the Hon’ble Supreme Court dealing with the principle for understanding the ratio decidendi of judgments, referring to Ambica Quarry Works v. State of Gujarat & Ors.(1987 (1) KLT OnLine 1003 (SC) = (1987) 1 SCC 213) held that the ratio of any decision must be understood in the background of the facts of that case and that the case is only an authority for what it actually decides, and not what logically follows from it. The Apex Court after discussing a plethora of other precedents, went on to hold that it is not apposite to pick up a line from here and there from the judgment or to choose one observation from here or there for raising it to the status of the ratio decidendi, further observing that is most likely to pave one on the path of danger and it is to be scrupulously avoided. True, as under Order XIV Rule 1 of the Code of Civil Procedure, 1908, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. So as to frame an issue, there should be pleadings by both sides. That merely relates to the procedure under Order XIV Rule 2(2)(b) with which we are concerned in the instant case. But for Order VII Rule 11(d), pleading by the defendant is not necessary. Order VII Rule 11(d) of the Code of Civil Procedure, 1908 reads :

Rejection of plaint -

The plaint shall be rejected in the following cases –

(d) where the suit appears from the statement in the plaint to be barred by any law.

The Hon’ble Supreme Court in P.V.Guru Raj Reddy & anr. v. P.Neeradha Reddy & Ors.(2015 (2) KLT Suppl.195 (SC) = AIR 2015 SC 2485) held that rejection of the plaint under Order VII Rule 11 is a drastic power conferred in the Court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII Rule 11 are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether the suit is barred under any law. At the stage of exercise of power under Order VII Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. If on a reading of the plaint, the suit appears to be barred under any law the plaint can be rejected. In other situations, the claims will have to be adjudicated in the course of the trial. In Sopan Sukhdeo Sable & ors. v. Assistant Charity Commissioner (2004 (1) KLT OnLine 1257 (SC) = AIR 2004 SC 1801), it was held that the real object of Order VII Rule 11 is to keep out of Courts, irresponsible law suits. Therefore, Order X of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facieof the view that the suit is an abuse of the process of the Court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code can be exercised.It was further held with reference to Order VII Rule 11 that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint and that the trial Court can exercise the power at any stage of the suit, even before registering the plaint or after issuing summons to the defendant or at any time before the conclusion of the trial. The Apex Court further held that for the purposes of deciding an application under Clauses (a) and (d) of Order VII Rule 11 of the Code of Civil Procedure, 1908, the averments in the plaint are the germane and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. Likewise, in Popat and Koteca Property v. State Bank of India Staff Association(2005 (3) KLT OnLine 1108 (SC) = (2005) 7 SCC 510), earlier judgments on the subject were revisited the Hon’ble Supreme Court held that under Order VII Rule 11, an independent remedy is made available to the defendant to challenge the maintainability of the suit, irrespective of his right to contest it on merits. The use of the word ‘shall’ casts a duty on the Court to perform its obligations in rejecting the plaint when it is hit by any of the infirmities provided in the four clauses of Rule 11 of Order VII, even without intervention of the defendant. Order VI Rule 16 (c) of the Code of Civil Procedure, 1908 reads :

Striking out pleadings –

The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading –

(c) which is otherwise an abuse of the process of the Court.

Order VI Rule 1 of the Code of Civil Procedure, 1908 reads :

Pleading -

‘Pleading’ shall mean plaint or written statement.

As held in Abdul Razak (Dead) through LRs & ors. v. Mangesh Rajaram Wagle & Ors. (2010 (1) KLT SN 33 (C.No.42) SC = (2010) 2 SCC 432), recognizes this power, holding that the Court can strike off the pleadings if it is satisfied that the same is an abuse of the process of the Court. Of course, this power has to be exercised with great care and circumspection. Section 151 of the Code of Civil Procedure, 1908 saves the inherent powers of a Court, which reads :

Saving of inherent powers of Court –

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

The Apex Court in K.K.Modi v. K.N.Modi & Ors.(1998 (1) KLT OnLine 1132 (SC) = AIR 1998 SC 1297) has held that under Order VI Rule 16, the Court may, at any stage of the proceeding, order to be struck out, inter alia,any matter in any pleading which is otherwise an abuse of the process of the Court. Mulla in his treatise on the Code of Civil Procedure (15^th Edition, Volume II p.1179, note 7) has stated that power under clause (c) of Order VI Rule of the Code is confined to cases where the abuse of the process of the Court is manifest from the pleadings and that this power is unlike the power under Section 151 whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. Merely because the application was one filed under Order XIV Rule 2(2) of the Code of Civil Procedure, 1908 does in no manner, restrict the Court to invoke the other powers which were available to grant the remedy. Needless is to emphasize that the nomenclature under which a petition is filed is inconsequential and not relevant. It does not debar the Court from exercising its jurisdiction which otherwise it possesses, unless there is special procedure prescribed which procedure is mandatory. Going by the facts in the case on hand, though power under Order XIV Rule 2(2) of the Code of Civil Procedure, 1908 could not have been invoked, powers under Order VII
Rule 11(d), Order VI Rule 16(c) and Section 151 of the Code of Civil Procedure, 1908 ought to have been invoked.

f. To recapitulate, with regard to first issue as whether the Indian Christian Marriage Act, 1872, extends to the territories of Travancore - Cochin area, true, the same does not apply
to Cochin area. But as the appellant herself contended that her marriage with the 1^st respondent was solemnized under the Indian Christian Marriage Act, 1872, and not under the Cochin Christian Civil Marriage Act, 1095, the appeal should have gone against her. Concerning the second issue whether the original petition can be quashed under Article 227 of the Constitution of India or Section 151 of the Code of Civil Procedure, 1908, the original petition could not be quashed by invocation of Articles 226 or 227 of the Constitution. But this was a matrimonial appeal, wherein the Hon’ble High Court was exercising the appellate jurisdiction on the matrimonial side and going by Jacky v. Tiny @ Antony & Ors.(supra) and other dicta forecited, when the original petition itself was not maintainable, the issue of maintainability could have been decided by the Hon’ble High Court in the appeal itself. Finally, regarding the third issue whether the original petition could have been rejected under Order VII Rule 11 (d) or Order XIV, Rule 2(2)(b) of the Code of Civil Procedure, 1908, on the issue of law, though Order XIV, Rule 2(2)(b) of the Code of Civil Procedure, 1908 could not be invoked prior to the adversary putting in his pleading, under Order VII Rule 11(d), only the plaint averments are to be looked into and not otherwise. Likewise, the Court always had the powers under Section 151 of the Code of Civil Procedure, 1908 to strike out pleadings or dismiss proceedings which are an abuse of its process, apart from the power to strike off pleadings under Order VI Rule 16(c).

g. A thorough reading of Benjeena.P.J. v. C.P.Pappachan & Anr. (supra) makes one not only wholly confused but also reassuringly convinced that the discordant views therein are unsupported by the principles of law, besides portions thereof being irreconcilable with its other portions and goes against the authoritative laws on the subject. This judgment, in my most humble opinion, suffers from infirmities as the incongruities contained therein cannot be reconciled and would run counter to the grain. One could only wish that the glitches in this judgment would not open the gateway for any misinterpretation of the settled laws, depriving the litigants of their rights and transform all bogus or vexatious litigations to long-drawn battles.