Dissenting Note on “Aju Varghese v. State of Kerala”,
Reported in 2019 (1) KLT 643

(By Sajeer H., Section Officer, Law Department, Govt.Secretariat,Thiruvananthapuram)

Quashing of F.I.R. may lead to uproot the entire prosecution story. If an interpretation leads to dilute the rigidity of any penal provisions, it becomes a precedent and its violations will continue without any hurdle. On going through Section 228A in its entirety, one can see that its construction is intented to give predominant consideration for the well being of the victims who suffered physical and mental injuries from the merciless males and sheltered them from further abuse.

The factual matrix of the title case was that the petitioner Aju Varghese is an artist in the Malayalam film industry. The victim therein is a well known cine actress in the same industry. Prosecution story was that on February 2017, while the victim was proceeding to Ernakulam in her car, she was sexually assaulted by a group of persons in the vehicle, which led to the registration of Crime No.297 of 2017 of the Nedumbassery Police Station for offences punishable under Sections 342, 366, 376, 506(i), 120(b) r/w 34 of the Indian Penal Code and 66E and 67A of I.T. Act. The petitioner posted a comment in his facebook account, inter alia,deprecating the act towards the actress and commenting that, it was a heinous act. He had disclosed the name of the victim in the above post. According to the petitioner, immediately on getting information that disclosing the identity of the victim was against the law, he immediately tendered an apology through his facebook and removed her name from the post. He tendered an apology to the victim also. In the meanwhile, the de factocomplainant therein, who allegedly had occasion to see the facebook post, filed a complaint before the Kalamassery Police Station alleging commission of offence punishable under Section 228A of the I.P.C. It led to the registration of a crime. After investigation, final report was laid and the same was pending as C.C.No.1297 of 2017, before the Judicial First Class Magistrate Court, Kalamassery.

Against the final report the petitioner has approached the Honourable High Court by contending that, he was not well versed with law and being an ordinary human being, who succumbs to human frailties, and in his anxiety to support his associate, had inadvertently mentioned the victim’s name. He also claimed that he had immediately removed her name from the facebook and also apologized to the victim, who gracefully accepted it. While proceeding the case in the Honourable High Court, the victim has sworn an affidavit and produced it in court by affirming that the petitioner was her associate, had been a good friend of her over a long period of time and without any mala fideintention, he had published her name in the official facebook. She has stated that, she has no objection in quashing the criminal proceedings in Crime No.1385 of 2017 of Kalamassery Police Station resulting in final report and the proceedings in C.C.No.1297 of 2017.

The Honourable High Court held that, though the rigour under Section 228A I.P.C. is strict and based on the predominant social reasons and it has to apply with all its rigour in all cases, but, wherein, the victim has condoned an act of disclosure of identity, it is a fit case, which Section 482 Cr P. C. can be invoked appropriately.

Going through the case, it is seen that two defences had been taken by the petitioner for praying the benefit of Section 482 Cr. P.C. First one is that the ignorance of law (According to the petitioner “not well versed with the law”) and the second one is the authorisation obtained from the victim after committing the act. On examining the defences one by one, in the light of the relevant facts, one can see that Section 228 A was not properly cooked in the case and quashing of F.I.R. ought to have been avoided.

There are two relevant maxims, which are to be considered in this regard. Such maxims are Ignorantia juris non excusator Ignorantia legis neminem excusat. The meaning of the first maxim is that “ignorance of the law excuses not” and other is “ignorance of law excuses no one”. It is the legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because of its ignorance. If anyone asks for a benefit, he has to prove that he has no guilty intention and guilty mind while committing the offence. Here the prosecution is bound to prove the fact that the accused has such criminal mind or guilty intention for committing the offence.

On a torch expedition of the case in hand, it is seen that the petitioner uploaded comment by denoting the name of the victim in his facebook. While uploading the same he knows that the face book post may be seen by a large number of people and they could easily identify the name of the victim. Why because, the victim is a well known artist in the film industry. The act of the petitioner may thereby cause injury to the victim as defined in Section 44 of I.P.C.

Section 44 of the I.P.C. says injury means any harm whatever illegally used to any person in body, mind, reputation or property. It becomes clear that the consequences of harmful conduct may not only cause bodily harm to another person but it may cause harm to his mind or to his property or to his reputation etc. That mental scar happened to the victim may come under the purview of injury, if the act may be intentional or negligent.

Publishing the name of the victim against the rigour of Section 228A, shall not be treated as liberal. The verdict of individual cases may lead negative impact to the society at large. The defence of “ignorance of law” or “not well versed with law” cannot be taken into
account in such a serious crime. His claim that he was unaware about the fact, that the disclosure of identity of the victim is offensive in India cannot be treated as tenable. At the time of uploading the name of the victim on his face book post, the petitioner ought to have been well aware that the name of the victim was not even been cited by any news paper or social media, which reported the case at the relevant time, because of the bar in
disclosing it.

It is the cardinal principle of law that a crime is not committed if the mind of the person doing the act in question be innocent. Traditional maxim in this regard is that Actus non facit reuas nisi mensit reaus,which means a person cannot be convicted and punished in a proceedings of a criminal nature unless it can be shown that he had a guilty mind. The uploading of name of the victim in the social media definitely come under the purview of rash and negligent act (if it considers the plea of the petitioner). The term mens reaincludes intentionally, voluntarily, dishonestly, fraudulently, wantonly, malignantly, rashly and negligently. The basic requirement of the principle of mens reais that the accused must have been aware of those elements in his act, which make the crime, with which he is charged.

While going through Section 228A, it can be seen that the clog attributed in it is that the revealing of identity of the victim to public is punitive. In Bupinder Sarma v. State of Himachal Pradeshthe Honourable Supreme Court held that, (of revealing the name of victim) the physical scar may heal up but the mental scar will always remain. When a woman is ravished what is inflicted is not merely physical injury, but the deep sense of some deathless shame upon her, her family and the whole society around her.

In the instant case the petitioner (if he pleads innocence) ought to have expressed his allegiance to the victim either over phone or visit directly to her home. But instead, he expressed the same through social media with the aim of getting popularity for his act. That act tantamount to the guilty mind of the petitioner and so he cannot be wiped out from the clutches of Section 228A I.P.C. So the defence of ignorance of law and innocence of act cannot be taken into account as a defence in the present case.

Secondly, the petitioner herein says that the victim gave him an authorisation stating that the act of the petitioner does not amount to hurt her and so she has no objection for allowing the application of the petitioner. The petitioner claimed it as a defence under Section 228A(2)(b) of Cr. P.C. Really Section 228A is a preventive and protective umbrella towards the victims and giving a shelter for them from stalking.

Now let us look into what Section 228A says, it reads that “Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is, by, or with the authorisation in writing of, the victim; on a plain reading of it, it can be seen that the authorisation is to be obtained prior to the disclosure of identity of the victim and not later”. Once an offence is committed its subsequent ratification cannot be possible in criminal law. A crime is set into motion at the time of its occurrence and not later. Because Section 228A IPC has prospective operation and not retrospective. The ex post factoauthorisation ought not to have been considered at any point of time by the court of law. It can be considered as a novus act, wherein the petitioner produced authorisation of the victim before the court of law while moving the petition.

Section 228 A itself is a powerful weapon and its fields are fenced with it its rigour. If the court of law interprets it liberally or any dilution is made, then the wrongs will continue in the society. If the case law becomes a precedent, it will lead to exode of petitions in the similar nature for seeking same relief.

The Doctrine of Basic Structure:
Is it the Soul of the Constitution or its Illegitimate Offspring?

(By V.K. Babu Prakash, Secretary, Kerala Legislature Secretariat)

In the Constitutional parlance, the basic structure of the constitution envisions those distinctive features, which form the core of the constitution. Once they are compromised, it would be detrimental to the fundamental character of the constitution. There are two concepts underlying the same. On the one hand, the constitution evolved out of certain fundamental values and principles, which are articulated in the provisions or conventions that also flourished along with specific constitutional practices. On the other hand, significant socio political and economic inputs arising out of the prevalent context with which the constitution is organically linked. The doctrine of basic structure is conceptually empowering since it also enables us to grasp the foundational basics of democracy. Broadly speaking, there are two major forms of democracy, which draw its sustenance from the demos. On the one hand, there is the Westminster form of parliamentary democracy in which it is parliament, which is supreme, and everything else is subordinate. The second is the American system of democracy in which neither the Congress nor the President who holds sovereign authority, but the constitution which remains supreme. The idea of American democracy is very simple, that is to say the only source of authority is the constitution and all other institutions of governance derive their constitutional right in governance from the constitution. The Indian constitution does not follow either of these formulations of governance.  Instead, by creatively, blending these two unique constitutional experiences, it articulates a third alternative, namely a parliamentary democracy in which constitution is made the supreme authority in which the constitution cannot be by passed by any of the institutions of political authority. In such a context, basic structure doctrine assumes tremendous constitutional significance.

In the formulation of the doctrine of basic structure, the Indian judiciary has played a very significant role. Not only has the judiciary acted as a guardian of constitutional democracy in India, it has creatively interpreted the constitutional provisions in the context of the changing socio-economic circumstances.

What is basic structure doctrine?

The basic structure doctrine is rooted in the processes leading to democratization of governance in India. The beginning of the doctrine is usually traced back to the judicial concern for misuse of power by the Parliament as per Article 368 of the constitution. According to Article 368, Parliament may in exercise of this constituent power amend by way of addition, variation or repeal any provision of this constitution in accordance with the procedure laid down in this Article. Jawaharlal Nehru in the constituent assembly argued as follows:“ While we want this constitution to be as solid and as permanent a structure as we can make it, nevertheless, there is no permanence in constitutions. There should be certain flexibility. If you make any thing rigid and permanent, you stop a nation’s growth, therefore while we make a constitution which is sound and as basic as we can, it should also be flexible and we should be in a position to change with relative flexibility”.1

In conceptual terms, basic structure means those values and principles, which form the core of constitution. The doctrine is about certain characteristics, which are essential since they define the nature of the constitution and once they are separated, the constitution, by implication, loses its identity. Although the idea has philosophical roots in some of the classical texts in democracy, federalism and republicanism, it was very clearly articulated in the commentary on the Weimer constitution in Germany before the reign of Nazism in the early 1930’s. Ernest Rudolf Huber, who is infamous for his support to the Nazi regime, underlined the importance of constitutional norms in governance which, if by passed would lead to the collapse of the constitutional structure in no time. The point provides three important conceptual inputs to articulate the basic structure doctrine:

a)   No amendment is permissible if it effectively alters the basic essential principles of the constitution if it means a significant departure from the purpose for which it was framed.

b)   If the amendment destroys the functional values of the constitution, it is unconstitutional and thus uncalled for.

c)   Finally, if the amendment under mines the basic values of the constitution, it has no intention of revising the constitution but desiring to eliminate the constitution, then also it cracks the basic structure.

In India the idea of basic structure is a judicial invention and is attributed to Barrister M.K.Nambiyar, a lawyer who appeared before the Supreme Court in the I.C.Golaknath v. State of Punjab1967 case.2Nambiar owed this idea to Dietrich Conrad, an academic from Germany who delivered a speech in Hindu Banaras University in 1965. According to Conrad,“ any amending body organized within the statutory scheme, how so ever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.” 3

As stated above, the basic structure doctrine evolved in India in the course of a series of Supreme Court judgments since 1967 Golaknath case. The idea of basic structure was first mooted in the 1964 caseSajjan Sing v. State of Rajasthan4. In that case Justice P.Gajendra Gadkar raised the question that whether the basic features of the constitution under which we live and to which we owe allegiance are to endure for all time or at least for the foreseeable future or whether it is no more enduring than the implemental and subordinate provisions of the constitution. In the 1967 Golaknath case the majority of the Judges held as follows:

1)    “The constitution is indented to be permanent and therefore it cannot be amended in a way, which would injure, maim or destroy its indestructible character.

2)    The word amendment implies such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed and it cannot be so construed as to enable the Parliament to destroy the permanent character of the constitution.

3)    The amending power cannot be used to abolish the compact of the union or destroy the democratic character of the constitution.

4)    The fundamental rights are a part of the basic structure of the constitution and therefore the said power can be exercised only to preserve rather than destroy the essence of these rights.”

However, the parliament took the verdict in Golaknathcase as an infringement in its constitutional right for being the voice of the people. The result was the amendment made by Indira Gandhi as the 24^th, 25^th and 29^th amendment happened in 1971 to the constitution. The intention of the amendment was to abrogate the Golaknathjudgment and to restore parliament’s unconditional authority in the matter of constitutional amendment.

These amendments were put to test in 1973 in Keshavanandha Bharathi case5. The Supreme Court in its full bench of 13 Judges probed in to the constitutional validity of this amendment. By a majority of 7 Judges as against six the court ruled that Article 368 does not enable parliament to alter the basic structure of the constitution. In the judgment there are three different expressions like basic structure, basic elements and basic features. Although the judges did not conclusively define what constituted basic structure, they left enough input to identify those essential characteristics which according to them constituted the basic structure. The idea was enlarged by Justice H.R.Khanna in the following words:“Amendment to the constitution necessarily contemplates that the constitution has not to be abrogated but only changes have to be made in it. The word amendment postulates that the old constitution survives without loss of its identity despite the change and continues even though it has been subjected to alteration. As a result of the amendment, the old constitution cannot be destroyed and done away with”. The Keshavanandha Bharathijudgment enlisted the following features as basic structure, which is not exhaustive.

1)    Supremacy of the constitution

2)    Republic and democratic form of government

3)  Secular character of the constitution

4)   Separation of power between the legislature, executive and the judiciary

5)    Federal characteristic of the constitution

6)    The mandate to be a welfare state (Part 4 of the constitution)

7)    Unity andintegrity of the nation

8)    Fundamental rights

9)   Judicial review

In 1975 in the Indira Gandhicase, the Supreme Court devised a principle to characterize basic structure6. Justice K.K.Mathew in the judgment held has follows:“To be a basic structure it must be a terrestrial concept having its habitat within the four corners of the constitution. What constitutes basic structure is not like a twinkling star up above the constitution. For instance, the preamble enumerates great concepts embodying the ideological aspiration of the people, but these concepts are particularized and their essential features delineated in the various provisions of the constitution”. Dissatisfied by the verdict in Keshavanandha Bharathi, Indira Gandhi Government enacted the 42ndamendment in 1976 to dilute the basic structure doctrine. The Supreme Court again intervened and reaffirmed the idea of basic structure in 1980 in Minerva Millscase. Striking down the 42nd amendment the Supreme Court held as follows: “ The parliament has conditional authority of amendment, it has no inherent power of amendment to the constitution and being an authority created by the constitution, it cannot have such inherent power but the power of amendment is conferred upon it by the constitution and it is a limited power”7. The same view was followed by the Supreme Court in 2007 in I.R. Coelho v. State of Tamil Nadu.8

Critique against basic structure

The basic structure doctrine seems to have put the two major organs of governance in a collusion mode. The Court has appropriated powers, which ordinarily belongs to the parliament since it represents people. The minority bench in theKeshavanandha Bharathi,led by Justice A.N.Ray endorsed the view that being people’s voice, the parliament remained supreme in India’s constitutional governance which, by implication, means that it was authorized to enact legislations, in accordance with what was required to fulfill politico ideological mission that the elected representatives had. By striking down parliament’s decision as it is contrary to the basic structure, the Supreme Court appears to have assumed a Veto power on all constitutional amendments9Instead of interpreting the amendment Clause, the Court has, in effect become the arbiter by suggesting that it will decide whether to permit the legislature to amend the constitution. The basic structure creates an environment in which the constituent power gets transferred from the elected representatives of the people to the judges of the Supreme Court, which is a serious threat to constitutional democracy. Highlighting this aspect of the judicial overreach, H.J. Kania, the first Chief Justice of India remarked that, “in a democratic country, the people make the laws through their legislature. It is not a function of the Court to supervise or to correct the laws passed by the legislature as an over riding authority. In the name of protecting the constitution, judiciary through its self-invented doctrine of basic structure appears to have destroyed the most basic feature of Indian polity, namely, the primacy of the people and democracy being a government of the people, by the people and for the people. This is an endeavor to replace the duly elected representatives by a small, often divided set of appointed judges to device policy preference”10. In a nutshell the basic structure doctrine is being challenged as an illegitimate offspring, which can neither claim the constitution as its father nor mother.11

In the final analysis, the basic structure is not merely a judicial decision, but a political intervention in governances which was likely to be derailed due to specific socio political context reportedly leading to the consolidation of anti democratic and authoritarian forces, especially during the emergency period. By raising concerns, the judiciary seems to have created an environment for fostering a democratic dialogue around key constitutional principles between the institutions of government. In principle, the doctrine is thus an important aid for keeping the executive within a limit. It is appropriate to remember the poignant words of justice H.R.Khanna in his descenting judgment in the Habeas Corpus case. “There is no modern instance in which any judiciary has saved a whole people from the grave currents of intolerance, passion and tyranny which have threatened liberty and free institutions. The attitude of a society and of its organized political forces rather than of its legal machinery, is the controlling force in the character of free institutions. The ramparts of defense against tyranny are ultimately in the hearts of the people. The constitution, the Courts and the laws can act only as aids to strengthen those ramparts, they do not and cannot furnish substitute for those ramparts. If the ramparts are secure, any one who dares to tamper with the liberties of the citizens would do so at his own peril. If however the ramparts crack down, no convention, no court would be able to do much in the matter”.

Foot Note:

1. Constituent Assembly debate book No.2, page 322.

2. 1967 KLT OnLine 1230 (SC) = AIR 1967 SC 1643.

3.A.G.Noorani in his Article in Front Line dated 28th April 2001 on Prof. Dietrich Conrad.

4.1965 KLT OnLine 1319 (SC) = AIR 1965 SC 845.

5.1973 KLT OnLine 1110 (SC) = (1973) 4 SCC 225 (Keshavanandha Bharathi v. The State of Kerala).

6. 1975 Supplementary SCC page 1 in Indira Gandhi v. Raj Narain.

7. 1980 KLT 573 (SC) = AIR 1980 SC 1789 in Minerva Mills Ltd & Ors. v. The Union of India.

8.2007 (1) KLT 623 (SC) = (2007) 2 SCC, 1 in I.R.Coelho v. The State of Tamil Nadu.

9. Subhas C. Kashyap, Indian Constitution: Conflicts and controversies, page 246.

10. N.R.Madhava Menon, Basic structure after 30 years, the Supreme Court v. the Constitution page 62.

11.  Madav Khosla, the Indian Constitution, page 155.

Conflict of Two Special Acts

(By Sajeer H., Section Officer, Law Department, Govt.Secretariat,Thiruvananthapuram)

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019 was promul-gated by the President for the protection of the rights of married Muslim women and also to prohibit divorce by pronouncing talaq and for all the matters connected therewith and incidental thereto. This ordinance declared that the pronouncement of talaq is void and illegal. On going through this ordinance, its clauses were in conflict with the existing similar laws. It can be seen that the Chapter II and Chapter III of the Ordinance are mutually contradictory. Besides, the provisions of this Ordinance are also in conflict with three special Acts such as, The Muslim Marriages and Divorces Registration Act 1974, The Dissolution of Muslim Marriages Act, 1939, The Muslim Women (Protection of Rights on Divorce) Act, 1986.

Muslim matrimonial disputes are governed by the Muslim Marriages and Divorces Registration Act 1974, The Dissolution of Muslim Marriages Act, 1939, The Muslim Women (Protection of Rights on Divorce) Act, 1986 and The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019. All these laws except the Muslim Women (Protection of Rights on Marriage) Ordinance permitted the Muslim husbands to pronounce talaq upon their Muslim wives.

In Clause 3 of The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019, it is seen that “any pronouncement of talaq by a Muslim husband upon his wife, by words either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”. That means whoever pronounces talaq upon his wife, that talaq will not stand in the way of the marital status of the parties and so their marital bondage will continue as what it persists.

Chapter III of the Ordinance is titled as “Protection of Rights of Married Muslim Women”. If we go through the legislation as such then the title is not apt and suit. The legislature intentionally uses the term “married”. That means, if a Muslim lady heard the pronouncement of talaq from her husband, that whisper is to have a waterline effect and that words will not stand in the way of her marital status. Therefore she is called the married Muslim Women and not a talaq lady. But clauses 5, 6 and 7of the ordinance giving certain rights to her, as in the case of a divorced lady, in contrary to the title word as “married”.

Clauses 5 and 6 of the Ordinance are fully against the wordings in clause 3. Because clause 3 prohibits the pronouncement of talaq and if it done the husband is liable to be punished for a term of three years and the talaq became void. If the talaq declared to be void then the marital status of the lady continues as married and the lady cannot be called as divorcee. That means the pronouncement of talaq would have a value of mere pronouncement and not a valid offer of divorce. Hence the lady, who denies and resist talaq, shall not be eligible for payment of subsistence allowance, as and when their marriage had been validly and legally prevailed. Clause 6 allows the talaq lady to claim custody of her minor children. If the talaq is not accepted and declared as void and irregular, then there will not arose a question of custody of minor children to the lady before a court of law.

Clause 7 of the Act says that an offence punishable under this ordinance shall be cognizable and compoundable. Clause 7(b) says that an offence punishable under the ordinance shall be compoundable at the instance of the married women upon whom talaq is pronounced with the permission of the Magistrate on such terms and conditions as he may determine. Clause 7(C) reads, no person accused of an offence punishable under this ordinance shall be released on bail unless the magistrate after hearing the married women upon whom talaq is pronounced and also satisfied that there are reasonable grounds for granting bail to such person. Here on a joint reading of these sub-clauses it is to be realised that the magistrate has the supremacy over the matrimonial issues by over reaching the supremacy of the Family Court .Moreover the lady shall be heard before granting bail to the Muslim husband who alleged to have committed the offence of pronouncement of talaq upon his Muslim wife. The legislature ought to have considered that, it is the common practice in family court and magistrate court in matrimonial issues that the whimsical ladies falsely alleging statements against their husbands and their relatives, in order to drag them towards their untenable moves. The ladies can move to the nearest police station and to lodge complaints alleging the pronouncement talaq by her husband orally. The SHO has no authority, under this Act, to make a preliminary enquiry, than to move with the complaint. He used to mechanically arrest the husband and proceed against him on the basis of the sole testimony of the wife. As and when he arrested his bail application shall not be entertained unless the lady is to be given an opportunity of being heard. If the lady refuses to move to the court with her case then the husband has to wait behind bars at the mercy of his wife, for obtaining bail. Whenever the husband defuses the case of the lady, then only he got bail from the court of law.

The Muslim Women (Protection of Rights on Divorce) Act Section 2 (a) defines divorced women means a Muslim woman who has married according to Muslim law and has been divorced by or obtained divorce from her husband in accordance with Law. Here it means that a Muslim woman get divorce from her husband in accordance with Muslim law. Muslim law permits the husband to pronounce talaq upon his wife. It also mandates that if a lady wants a divorce from her husband then she can obtain it from her husband by pronouncement of talaq upon her. It is the statutory right of a Muslim lady who can obtain a divorce from her husband and can get it registered under Muslim marriages and divorces (Registration) Act 1974.

Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act reads that notwithstanding anything contained in any other law for the time being in force a divorced women shall be entitled to a reasonable and fair provision of maintenance, to be made and paid to her along with the iddat period by her former husband. Section 3(l)(b) says that where she herself maintain the children born to her before or after her divorce a reasonable and fair provision of maintenance to be made and paid by her former husband for a period of two years from the respective date of birth of such children. On going through the above sections it can be seen that the husband has the mandate to provide divorce to his wife. That means the law permits the husband to pronounce talaq to his wife, but to provide reasonable and fair provision of maintenance to his wife and children.

Section 2 of the Dissolution of Muslim Marriages Act, 1939, clearly mentioned about the grounds for obtaining divorce from a husband of a Muslim lady. But no provision of the same has declared unconstitutional after the enactment of Muslim Women (Protection of Rights on Divorce) Act. In Danial Latifi v. Union of India (2001 (3) KLT 657 (SC)) the honourable Supreme Court has declared that the provisions in the Muslim Women (Protection of Rights on Divorce) Act are not unconstitutional. That means a Muslim husband can validly pronounce talaq upon her wife.

Facts being so, the newly enacted Ordinance prohibit the pronouncement of talaq by a Muslim husband towards his Muslim wife. If it is done it is void and illegal and the husband who pronounced talaq shall undergo penal consequences as per clause 4 of the Ordinance. But the pronouncement of talaq is not a penal provision in the Muslim Women (Protection of Rights on Divorce) Act and it is permissible. The ordinance directed the Muslim husbands to pay subsistence allowances to the talaq ladies; Muslim Women (Protection of Rights on Divorce) Act directed them to claim reasonable and fair provision of maintenances.

Therefore, The Muslim Women (Protection of Rights on Divorce) Act 1986 and Clause 3 of the Muslim Women (Protection of Rights on marriage) Ordinance, 2019 were in conflict with each other. If a special statute is in conflict with a general statute then the special statute will prevail is the rule inGeneralia Specialibus Non Derogant. But if two special statutes were in conflict, then what will be the result? The court has to intervene and to declare any one will prevail over the other. Or else, the legislature may take up the matter and repeal any of the eclipsed provisions in the statutes in order to fill up the lacuna.

Contract for Sale Whether Creates ‘Charge’ Over the Property

(By P. Biju, Advocate, Nedumangad, Thiruvananthapuram)

1. Transfer of Property Act is the law which governs the transfer of properties in India. The property under T.P. Act includes properties of any kind as stated in S.6 of the Act i.e., it includes both movable and immovable. Transfer may be transfer of ownership, transfer of possession or transfer of any other interest which the transferor has over the property. There are many modes to transfer properties. Sale, gift, lease, mortgage and exchange are the modes of transfer. Out of the said modes transfer by sale and contract for sale of immovable properties are the topics I intent to discuss. Specific Relief Act, Limitation Act and Contract Act are also relevant for the discussion.

2. Sale and contract for sale are defined u/S.54 of the T.P. Act. From the definition of sale it can be seen that S.54 deals with sale of immovable property only and ownership over the property alone is transferred by such sale. It is not stated in the definition that the possession of property is also transferred on sale by the seller to the buyer. At the same time it is stated in S.55(1)(f) of the Act that possession should be asked by the buyer from the seller after purchase of ownership of the property and if so asked the seller shall give possession. S.55 describes the rights and liabilities of the buyer and seller with respect to the property sold. Getting possession is one among such a right available, after sale, to the buyer and one among such liability cast upon with the seller, after sale took place. A reading of Ss.54 & 55(1)(f) together will make the point clear that sale of immovable property does not include passing of possession also and possession will be passed to the buyer by the seller on request u/S.55(1)(f) of T.P. Act.

For ready reference S.55(1)(f) is extracted below.

S.55(1). The seller is bound:

(a) to (e) ******

(f) To give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits.

3. That means handing over possession is not the ingredient of sale but is only incidental to sale, that tooonly if the buyer so requests. So, when one person sold immovable property to another, it does not legally mean to say that possession is also handed over. That is why while drafting sale deeds words which shows handing over possession is worded specifically and separately to show that possession is also handed over.

4. Then what doescontract for sale means? It is also described in S.54 of the T.P. Act. Contract for sale is a document by which the buyer will get right to purchase a property and the seller became bound to sell it. Usually the seller will execute sale deed to the buyer as stated in the contract for sale. But there may be circumstances where one party is willing and the other party is unwilling to perform their respective part. Then the provisions of T.P. Act, Specific Relief Act, Limitation Act and Contract Act start to function.

5. If the seller decline to execute sale deed as per the terms of the contract, though the buyer is ready to purchase, the buyer may file suit for specific performance as provided under Chapter -II of Specific Relief Act. When such a suit is filed prayer for possession is to be asked separately which is prescribed u/S.22(1)(a) r/w 22(2) of the Specific Relief Act. The suit if decreed in his favour the seller has to execute sale deed and then pass possession to the buyer. If the seller did not execute the sale deed even after decree and where the buyer pays the purchase money before court, the court will execute the sale deed in favour of the buyer as provided u/S.28(3)(a) and cause delivery of possession as provided u/S.28(3)(b) of Specific Relief Act. These provisions also say that passing possession will take place after sale.

6. So, the buyer may get sale deed in his favour through any of the three modes i.e., [1] sale deed by the seller voluntarily, [2] sale deed by the seller himself under obedience of decree for specific performance, [3] sale deed by the court in case of disobedience of decree by the seller. Whatever is the mode, once a sale deed is executed in favour of the buyer, he has a right to ask for possession. If the seller voluntarily executes sale deed, the buyer should ask for possession to the seller himself u/S.55(1)(f). If the buyer gets sale deed by the court u/S.28(3)(a) of Specific Relief Act he has a right to ask for possession before the court itself u/S.28(3) of Specific Relief Act. All these provisions affirm the importance of asking for possession by the buyer and the liability of the seller to give possession if asked. Since the aforesaid provisions are available the seller is not expected to keep the possession with him after sale take place. The contract for sale is a gentleman agreement and there is practice of handing over possession to the buyer along with the sale deed itself.

7. But there may be circumstances where the buyer declines to accept delivery of possession after the execution of sale deed. He may have his own reasons for such declination. If the buyer declines to accept delivery without any proper reasons he has no opportunity to blame the seller and will have nothing to sue against the seller.

8. But, the buyer, if declined to accept delivery with valid reasons i.e., reasons not attributable to the buyer, has the right to get back the purchase money (not the advance money) paid to the seller at time of sale deed. Such a right is provided in the first limp of S.55(6)(b) of the T.P. Act. Because without possession the buyer has nothing to do with the sale deed and there will be no meaning in keeping the title alone. Therefore a right is prescribed for him to get back the purchase money paid by him, if he is unable to obtain the possession from the seller.

9. The second limp of S.55(6)(b) provides some more reliefs if the buyer has properly declined to accept delivery. Before discussing those reliefs, first of all what advance money is, what is earnest money and what is purchase money are to be borne in mind. Advance money means the amount paid in advance towards sale consideration before execution of deeds i.e., at the time of contract for sale. S.74 of the Contract Act contains provision for fixing the maximum amount to be paid towards compensation in case of breach of contract by either of the parties. That amount is calledearnest money. Provision for earnest money may or may not be included in a contract for sale. If no earnest money is fixed in the contract the parties can claim any amount as compensation. Purchase money means the total amount of consideration paid in total by the buyer to the seller towards sale consideration.

10. If the contract for sale contains any provision for earnest money the buyer can claim, after sale takes place, apart from the purchase money, the earnest money (not the advance money) or compensation, as the case may be, as if the contract has not been performed by the seller. Because as far as the buyer is concerned the contract is not performed as he is not able to get the possession though sale deed is executed. So also by virtue of the second limp of S.55(6)(b)of the T.P. Act the buyer if got the sale deed through a decree is entitled for cost of the suit also if any is awarded. Because though the suit is decreed and got the sale deed the buyer has in effect failed as he did not get the possession. So he can claim for return of purchase money paid to the seller or deposited in court along with the earnest money or compensation, as the case may be, and cost of the suit if any is awarded.

11. Yet another relief available for the buyer is to rescind the contract before sale takes place as provided u/S.27 of the Specific Relief Act. In that case also the buyer can realize cost for the suit from the seller. If we read S.55(6)(b) after reading all the aforesaid provisions it can be seen that S.55(6)(b) speaks about the rights available to the buyer in whose favour the sale deed is executed and who declines to accept delivery of property for reasons not attributable to him. While suing for return of purchase money, earnest money or compensation, as the case may be, and cost by such a buyer, he has a charge over the property as per S.55(6)(b) of the T.P. Act. For ready reference S.55(6)(b) is extracted:-

Section 55. Rights and liabilities of buyer and seller.— In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold:-

(1) to (5) ***

(6) The buyer is entitled—

(a) ***

(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.

***

12. Then what is charge? When a charge is created over a property the person in whose favour a charge created has a specific right to avail his claim upon charging the particular property itself. The person against whom the charge created has no other option than to pay the debt to release the property from the charge. He cannot substitute the property with another one or another kind of security as in the case of an attachment under O.38 R.5.

13. From the reading of S.55(6)(b) it is crystal clear that charge over the property is crated in favour of the buyer only after sale takes place and the buyer declines to accept delivery for reasons not attributable to him or when the buyer has filed suit for recession. It is a benevolent provision to save a buyer who purchased the property by paying money and thereafter failed to obtain possession not due to his fault or the buyer who sued for recession. Such a benevolent right which is available only to the buyer who purchased the property or who sued for recession is not expected to be provided to the buyer to a contract for sale who did not purchase the property or did not sue for recession, but who sues for return of advance money with or without compensation or claim for earnest money as the case may be. Because, charge can be created only by operation of law or by act of parties, as defined under Section 100 of the T.P. Act. No law prescribes such a charge for a buyer who enters in to a mere contract for sale.

14. So, by entering into a contract for sale parties do not create charge. By virtue of S.54 of T.P. Act no charge is created by operation of law. Hence the contract for sale does not create a charge. That is what is stated in the 3^rd heading of S.54 of T.P. Act 3^rd heading of S.54 is extracted here for ready reference.

Contract for sale.–A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.

15. Then, what right the parties to contract for sale has if sale deed is not executed. It is stated in Ss.73 & 74 of the Contract Act. By virtue of those provisions the parties are entitled to sue for compensation from the other who committed breach. So also the buyer may sue for advance money paid by him to the seller towards advance sale consideration at the time of entering contract for sale. Though there is no specific provision for return of advance money in the Specific Relief Act, Contract Act, T.P. Act or any other related statutes, it is being permitted under the benevolent principle that unlawful enrichment in favour of one person is to be avoided. Of course, if the buyer is at fault in purchasing the property the seller is entitled to get compensation from the buyer on account of the fault of the buyer, provided any actual damage is sustained to the seller. Such amount shall be deducted from the advance money and only the balance has to be returned to the buyer. But in a suit for return of advance money with or without compensation or earnest money, as the case may be the buyer has no charge over the property. No law prescribes such a charge. The only privilege available for the buyer is to get an order of attachment under O.38 R.5 over that property. But such an attachment is liable to be lifted if any other sufficient security is offered, as in the case of other money suits.

16. In this context I have come across some verdicts of the Hon’ble Supreme Court and Hon’ble High Court of Kerala lasting from 1962 to 2017. Some of them are 1962 KLT 728, 1965 KLT 877, 1989 (1) KLT 581, 2004 (1) KLT 159, 2016 (1) KLT 394 & 2017 (1) KLT 429. Unfortunately all the verdicts affirm that the buyer who sues for return of advance money, before sale takes place, has a charge over the property by interpreting S.55(6)(b) of T.P. Act. How far those interpretations will stand?

17. With due respect to the Coram, legal luminaries appeared in those cases for both sides, let me disagree with the interpretations made on those judgments. What I understood from those judgments is that all those interpretations were made under the impression that S.55(6)(b) speaks about buyer in a contract for sale who sues for return of advance money. But in fact S.55(6)(b) meant only the buyers who purchased the property by paying the entire purchase money and thereafter declines to accept delivery of possession due to reasons not attributable to him. Suit for return ofadvance money without the sale being take place and suit for return ofpurchase money paid after sale takes place are distinct and different. Charge is created to the latter category only by virtue of S.55(6)(b) of T.P. Act. But somehow such privilege is being given to the former category also through the aforesaid judgments. Those judgments unfortunately do not address the aforesaid differences.

18. This would be clearer if we read S.54 again. Towards the last portion of S.54 it is categorically stated that the “contract for sale, of itself, do not create any interest in or charge on such property”. Through that provision charge over the property is specifically excluded. When something is excluded specifically all other provisions are to be understood subject to the specific exclusion. But nothing regarding the specific exclusion had been discussed in the judgments referred above. Even if the aforesaid exclusion is omitted to be considered, S.55(6)(b) is very clear as to whom and at what stage charge will be created. We can make sure that law will not intend to create charge for buyer suing for return of advance money if the following consequences are considered.

19. Let us imagine the consequences if the buyer under a contract for sale has a charge over the property for the advance money paid by him. By virtue of Article 62 of Limitation Act the period to claim money is 12 years when there is charge. Otherwise it is only 3 years. If the buyer who failed to purchase property kept mum for period of 12 years and files suit for return of advance money just before the expiry of 12 years the seller would be put to trouble as he might have sold the property already to some others. Because, the seller who decided to sell the property, might have so decided for fulfilling his financial needs. If charge is available to the buyer by virtue of mere, contract for sale the seller should wait for another 12 years to sell his property to others. Even if he plans to sell the property before 12 years, he must honestly disclose the new buyer that a charge subsists over the property. Nobody will purchase a property over which a charge is created according to the seller himself. Net result would be that, nobody will come forward to purchase the property and the earlier buyer may pressurize the seller to settle the account at his directions. The buyer, even if he is not the defaulter does not deserve that much of mercy from law simply because he had advanced some amount to purchase a property. Likewise the seller, even if he is the defaulter is not bound to be penalized that much by the law simply because he failed to return the advance money received by him. No law would contain that much of blemish. Law is made to ensure justice and to prevent injustice. Law does not mean to create troubles to persons who resort to it. When giving interpretations to law it should be harmonious and should be able to give effect to all the provisions, as said by Hon’ble Supreme Court and the Hon’ble High Court on many a occasion.

20. I read Ss.54 & 55 of T.P Act repeatedly to cure my doubts. I kept the topic throughout in my mind. But still I am unable to accept the verdicts as containing harmonious interpretations.

21. But situation may be different, if the contract for sale itself contains provision to create charge even for advance money. Because charge can be created by act of parties also as per S.100 of the T.P. Act. The specific inclusion of such a provision in the contract for sale may come within the purview of ‘act of parties’ and thereby creates charge. But no such interpretation has been made so far.

22. If the verdicts of the Hon’ble Supreme Court and Hon’ble High Court are to be followed all the buyers may file a suit for return of advance money and thereby obtain an order restraining alienation of the property under the guise that they have a charge over it. At the same time they will not file suit for specific performance and will not come forward to purchase the property. The seller, in effect, would not be able to sell his property. Though the suit by the buyer is only for return of advance money, the seller would not be able to furnish security as in the case of an attachment order under O.38 Rule 5 C.P.C. The seller would be bound to keep the property unsold till the final disposal of the case which is indefinite.

23. It is reminded that suits for return of advance money are being tried in trial courts which are bound to follow the decision of the Hon’ble High Court and Hon’ble Supreme Court. Since, these verdicts subsists, though not good, the trial courts are bound to follow it and are bound to pass orders in favour of buyers who approaches the court with a claim of charge. This may create unpleasant situation.

Let these words be an eye opener to all concerned, if correct.

Now is the Time

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

A young sprightly lawyer from Thiruvananthapuram had taken up the issue of Lawyers’ robes particularly in summer at the most appropriate time and got an order from the High Court that at least in trial Courts gowns are not compulsory during the summer. There is already a practice in Delhi, Punjab, Uthar Pradesh, etc., that between May through August, the gown need not be worn even by the Judges. This is a most welcome practice.

A more welcome practice will be to effect complete changes in the dress code of Lawyers. Like our judicial system itself, the dress has been borrowed from the British, which was designed to suit the climate in England and not the tropical climate. It will be extremely foolhardy to wear a dress which may even create health problems in a hot country like India merely because our erstwhile rulers had followed that dress code in their cold country.  In fact this humble contributor had pointed out the anomaly in dress habits in one of his articles earlier in an esteemed Law Journal.

It is primarily the duty of the Bar Council of India to address the issue and now is the time to do that since even a State like Kerala with comparatively mild climate is facing intense and unprecedented heat.  Section 49(1)(gg) of the Advocates Act empowers the Bar Council to frame rules including the form of dress. Section 49(1)(gg) reads as follows:-

“49(1)(gg) – the form of dresses or robes to be worn by Advocates, having regard to the climatic conditions, appearing before any court or tribunal.”

Unfortunately the Bar Council of India, which is a powerful body, is refusing to address itself to the problem while it calls for boycott, strike, etc., by Lawyers adversely affecting the administration of justice.  No doubt rules have been framed by the Bar Council of India under Section 49(1)(gg) which has prescribed the following dress:

“I.  ADVOCATES OTHER THAN LADY ADVOCATES – (a) A black buttoned upcoat, chapkan, achkan, black sherwani and white bands with Advocates’ Gowns, or

(b) A black open breast coat, white shirt, white collar, stiff or soft, and white bands with Advocates’ Gowns.

[In either case wear long trousers (white, black striped or grey) or Dhoti].

II.  LADY ADVOCATES – (a) Black and full or half sleeve jacket or blouse, white collar stiff or soft, with white bands and Advocates’ Gowns.

OR

White blouse, with or without collar, with white bands and with a black open breast coat.

(b)  Sarees or long skirts (white or black or any mellow or subdued colour without any print or design) or Flare (white, black or black striped or grey) or Punjabi dress(Churidar-Kurta or Salwar-kurta with or without dupatta) white or black”.

Significantly the rules themselves contain a proviso reading as follows:-

“Provided that the wearing of Advocates’ gowns shall be optional except when appearing in the Supreme Court or in a High Court.

Provided further that in Courts other than the Supreme Courts, High Court, District Courts, Sessions Courts or City Civil Courts a black tie may be worn instead of bands.”

Rules have been framed by the High Court of Kerala under Section 34(1) of the Advocates Act which prescribe the following:-

“12. Advocates appearing in Court shall wear the following dress:-

(1) Advocates other than lady advocates:-

(a) Black buttoned-up coat (chapkan, achkan or sherwani) Barrister’s or Bachelor of Laws’ gown and bands, or

(b) Black open collar coat, white shirt, white collar, stiff or soft with Barrister’s or Bachelor of laws’ gown and bands.

(2)    Lady Advocates – Regional dress of subdued colour with Barrister’s or Bachelor of laws’ gown, white collar, stiff or soft, and bands.”

It may therefore, be seen that there is a marked preference in favour of lady Advocates who are free to wear the regional dress with a gown, while the male Advocates are compelled to wear a Coat with the band and gown, which rule is prima faciediscriminatory.  The climate of the area is common to both men and women.  A dress code will have to be necessarily fixed taking into account the climatic conditions of different regions.  Unfortunately till date no attempt has been made by the authorities concerned to fix an appropriate dress, in spite of the advent of freedom which we obtained about 72 years back.  It is ungainly to ape the British model in regard to dress as the Barrister’s dress and gown are designed to meet the English climate, which everybody knows is erratic and can be resisted only with thick dress. Fortunately that is not the condition in Kerala or in any part of India except during winter in the Northern India.

It is therefore, time that the Bar Council, which appears to be concerned with so many issues not very much relevant to the legal profession, addresses itself to a very crucial issue namely wearing of dignified robes by Indian lawyers suiting the climate of the country.  

I was wondering why the legal profession cannot copy the model of the doctors by wearing a long black coat even avoiding the band and gown.  This will give the profession the distinct identity it needs as to my knowledge there is no other profession adopting the long black coat as a uniform.  Black small coat is adopted even by Railway men not to speak of the waiters in five-star hotels and the trainees in Catering.  Either the existing coat and gown can be substituted by a long coat, or gown alone, or if some are particular of the discriminatory senior’s gown with that distinction, wearing of the black gown alone shall be insisted.  No doubt, the dress shall be decent, congenial and consistent with the dignity of a member of the legal profession.

I should think that this is the most appropriate time for the Bar Council to deliberate over the matter and make effective appropriate changes to the dress code and make it part of the rule under the Advocates Act. The High Court should respond appropriately.