* Interview of Mr. Justice Kurian Joseph (Former Judge, Supreme Court of India)

By Shri. Prashant Padmanabhan, Advocate-on-Record on behalf of “The Leaflet”

December 5, 2018

    Prashant Padmanabhan: Sir, today is the fourth death anniversary of Justice V.R.Krishna Iyer.  Anything particular about J. Krishna Iyer, which you would remember?

Justice Kurian Joseph (Retd.):  I had a close association with him. Together, we handled a very sensitive issue between two communities in Kerala.  He has spoken in the public meeting that I am the messenger of Peace.

 Prashant Padmanabhan: Justice Krishna Iyer had suggested Appointment, Performance and Punitive Commission for Judges.  Your thoughts?

Justice Kurian Joseph (Retd.): How will you do it and who will do it?  An Amendment in the Constitution may be required for review of  performance of High Court Judges by the Supreme Court.

 Prashant Padmanabhan:  What about Supreme Court Judges? 

Justice Kurian Joseph (Retd.): I don’t agree for a committee outside the Consti-tution.  It is not ripe for India.  Indian democracy/policy has not reached that level of maturity.  It could be left to the collegium on whose recommendation the C.J.I. can withdraw work.

 Prashant Padmanabhan: Mr.Fali Nariman had suggested that there should be a portrait of J. Krishna Iyer in the Supreme Court. We have given a memorandum.
Do you think that it should be there. 

Justice Kurian Joseph (Retd.): I support.

 Prashant Padmanabhan: Most memorable case in your position as a Judge of the Supreme Court or in the High Court?

Justice Kurian Joseph (Retd.):   Every single case I dealt with is memorable.  Particularly those involving the weaker sections.

Prashant Padmanabhan:  Most memorable case as a lawyer.

Justice Kurian Joseph (Retd.):  The one reported in 1988 (1) KLT 727. One paragraph encomium to me by the Chief Justice’s Bench.  Special mention for excellent preparation by Shri Kurian Joseph who led the arguments.  I was appearing as a private lawyer.  When I was just eight years in practice. Chief Justice was J. Malimath.

 Prashant Padmanabhan: You’ve worked with seven seven different Chief Justices. They are Hon’ble Mr.Justice Altamas Kabir, Hon’ble Mr.Justice P.Sathasivam, Hon’ble
Mr.Justice R.M.Lodha,  Hon’ble Mr.Justice H.L.Dattu, Hon’ble Mr.Justice T.S.Thakur, Hon’bleMr.Justice Jagdish Singh Khehar and Hon’ble Mr. Justice Dipak Misra. Out of them, whom do you consider the best Chief Justice of India? And the reason why?

Justice Kurian Joseph (Retd.): Not including the present C.J.I., because he is a sitting Judge. The best was Chief Justice R.M.Lodha,  I would rate him the best because of his transparency, objectivity and clarity.  Nobody has raised a little finger against him.  He is the only CJI, out of the seven, who left without a single allegation.

 Prashant Padmanabhan: If you consider the past two decades. 2000-2010 and 2010-2018, whom do you consider the best Judges?   

Justice Kurian Joseph (Retd.): Again, I will not include any sitting judges. Barring the sitting, I can mention CJI Lodha.

 Prashant Padmanabhan: Can you name a few lawyers who are outstanding?

Justice Kurian Joseph (Retd.): There are quite a few.  But it won’t be proper for me to name them.  I found myself to be fortunate sitting on the Bench listening to them. Starting with Ram Jethmalani who retired from the profession now and the doyens like Fali Nariman.

 Prashant Padmanabhan: Now that you are retired, can you judge yourself? Justice Holmes has mentioned about “Inarticulate major premise” of a Judge.  Would it be correct, if we say that “compassion” inspired by your deep religious leaning and a disciplined life, was your inarticulate major premise? 

Justice Kurian Joseph (Retd.): Justice tempered with mercy and righteous indignation against injustice.

 Prashant Padmanabhan: Was there any occasion/s in which your beliefs/convictions conflict with your duty as a Judge?  In tough cases like death penalty, abortion and divorce?  Where there is sharp division even among the Judges of the United States Supreme Court. 

Justice Kurian Joseph (Retd.):  I have done justice to my oath.  My oath is to uphold the Constitution and the laws without fear or favour, affection or ill-will. My faith is my personal matter.

ON DEATH PENALTY

 Prashant Padmanabhan: How did you deal with death penalty cases?  Have you ever upheld a death sentence as a Judge either in the Kerala or Himachal Pradesh High Courts or in the Supreme Court? 

Justice Kurian Joseph (Retd.): I have commuted a death sentence to life in 2014.  I was a puisne Judge then siting with Justice C.K.Prasad.

ABORTION

Prashant Padmanabhan: Did you think twice before allowing abortion of a womb? There is an Order dated July 28, 2015 wherein you were part of the Bench, allowing a 14-year-old rape victim to abort the 24-week pregnancy, ‘only if there is a serious threat to her life’, if the child is not aborted. 

Justice Kurian Joseph (Retd.): That is the mandate under the Medical Termination of Pregnancy Act, 1971.

MATRIMONIAL DISPUTES

 Prashant Padmanabhan: How did you feel when a 10-year-old child handed over a “thank you card” for settling the disputes between his warring parents? It formed part of your judgment? 

Justice Kurian Joseph (Retd.): It was a very satisfying moment in my career as Judge. The child was able to touch justice. When he got justice, he was happy.

ON CERTAIN DECISIONS OF THE SUPREME COURT

 Prashant Padmanabhan: What is your opinion about some of the Supreme Court Judgments; one dealing with Section 377 I.P.C. (reading down adult consensual homosexuality in private) and Section 497 I.P.C. (on adultery). There was some observation regarding women’s sexual autonomy? 

Justice Kurian Joseph (Retd.): I have my difference of view on both.  I don’t agree to both.

 Prashant Padmanabhan: Whether homosexual marriages are to be allowed?  If that stage comes?

Justice Kurian Joseph (Retd.): I don’t agree. It defeats the purpose of marriage.

 Prashant Padmanabhan: What according to you should be included in ‘Constitutional morality’? There was a recent comment by the Law Minister that it should not differ from Judge to Judge. 

Justice Kurian Joseph (Retd.):  Liberty, equality and dignity.

 Prashant Padmanabhan: LGBT community challenged the application of Section 377 IPC on those grounds. Liberty, equality and dignity. Your comments on that? 

Justice Kurian Joseph (Retd.): There may be some cases where all these principles will apply. If there is a case where one of the constituting factors of constitutional morality conflict with the other, then the constitutional morality principle should not be applied.

 [Subsequently, in another interview by Suhant Singh of Indian Express on behalf of Leaflet on 7.12.2018, Justice Kurian Joseph (Retd) clarified that it is his personal opinion and  “as a Judge, while deciding these questions, liberty, equality and dignity of LGBT community should be definitely taken into consideration.”]

ABOUT GIVING EMPLOYMENT TO AN ACID ATTACK VICTIM

 Prashant Padmanabhan: Before coming to Judge’s selection and appointment, I want to ask you about another very important appointment made by you. Sometime in December, 2013 when you were a junior Judge of the Supreme Court, you had given appointment in the Supreme Court  to an acid attack victim.  How did you look at this incident? 

Justice Kurian Joseph (Retd.): Looking at her plight, I could not find a better person to opt for appoint, though there were several requests pending with me.

SELECTION OF JUDGES

 Prashant Padmanabhan: A three-judge Bench of Supreme Court comprising of the present C.J.I., Justices Rohinton F.Nariman and Navin Sinha, in a judgment dated October 12, 2017, in Writ Petition (C) No.454 of 2015, titled Ms. Indira Jaising v. Supreme Court of India, through Secretary General, laid down the criteria for selection of lawyers as senior advocates. Supreme Court notified the guidelines and now applications are also invited on August 6, 2018. A total of 105 lawyers have applied and now a notice dated November 13, 2018 is issued inviting suggestions of other stake holders. Any comments on that? 

Justice Kurian Joseph (Retd.): That is now the law. It is done to ensure objectivity and transparency.

 Prashant Padmanabhan: Why can’t we have such an objective criteria for the selection and appointment of Judges to the High Court and Supreme Court?  This will be a big step in ensuring transparency.  

Justice Kurian Joseph (Retd.): Who said it is not there? It is there in the selection of Judges. These factors are assessed by Collegium.

 Prashant Padmanabhan: Is it in consonance with democratic principles that a Collegium of a few Judges alone selects Judges for appointment?

Justice Kurian Joseph (Retd.): It is done only to ensure independence of judiciary. Person appointed should not feel obliged to someone outside the system  who may have an interest in the outcome of litigation.

 Prashant Padmanabhan: Can we have system of appointment similar to UK or USA?   

Justice Kurian Joseph (Retd.):   Not for India as of now.

 Prashant Padmanabhan: Sir, in the Constitution Bench judgment wherein NJAC was held unconstitutional, you’ve observed that the Collegium system needs to be improved requiring a “glasnost” and a “perestroika”. Are you satisfied with the working of the Collegiums system at present? Has the improvement been made?

Justice Kurian Joseph (Retd.): Still not. Though quite a few improvements are made.

 Prashant Padmanabhan: What is your opinion regarding appointing senior advocates instead of only retired High Court/Supreme Court Judges to different Commissions, quasi judicial bodies etc?  

Justice Kurian Joseph (Retd.): Very welcome suggestion.

 Prashant Padmanabhan: Any opinion on retired Judges opting for different commissions?

Justice Kurian Joseph (Retd.):  There is no harm in it.

 Prashant Padmanabhan: Any comment about a cooling-off period between retirement and fresh appointment?

Justice Kurian Joseph (Retd.): Where the political executive perceives it as a charity, one should not take up it as assignment.  No Judge shall go after them for appointment.  The Government should go after them.

CONTEMPT

 Prashant Padmanabhan: Is the position of a High Court Judge as important and almost on par with the Judges of the Supreme Court, in view of these following provisions:

Appointment by same authority Art.124, Art.217. Removal by same procedure Article 124(4) and Article 217(1)(b) which refers to Article 124(4). Bar on discussion in the House Art.122 and Art.212. According to Article 127(1) of the Constitution, sitting Judges of the HC can act as ad hoc Judges of the Supreme Court?

Justice Kurian Joseph (Retd.): Both are Constitutional Courts.   Supreme Court has no supervisory control over the High Courts.

 Prashant Padmanabhan: Do you think that there should be supervisory jurisdiction for the Supreme Court over High Courts?

Justice Kurian Joseph (Retd.): Any such change may affect Federalism.

Prashant Padmanabhan: Can a sitting Judge of the Hon’ble High Court be punished for contempt of Court? 

Justice Kurian Joseph (Retd.):  Yes.

 Prashant Padmanabhan: Can a Judge of the Supreme Court be punished for contempt
of Court? 

Justice Kurian Joseph (Retd.):  Yes. Why not?

 OTHER ISSUES

 Prashant Padmanabhan: What is your view on the creation of four regional Courts of Appeal as final appellate courts, while restricting the Supreme Court of India to its true function as a Constitutional Court, as suggested by Mr.K.K.Venugopal?

Justice Kurian Joseph (Retd.):  I would agree.

Prashant Padmanabhan: Would it help in reducing the heavy burden on the Supreme Court? 

Justice Kurian Joseph (Retd.): Not only reduction of pendency in the Supreme Court.  It would ensure speedier justice to People.

Prashant Padmanabhan: Sir, Mr.Fali Nariman has suggested increasing the age of retirement of Judges from 65 to 70.  Do you agree? Should it be same for High Court and Supreme Court Judges or different? 

Justice Kurian Joseph (Retd.): I agree. To me, every judicial officer, starting with Civil Judge Junior Division to Supreme Court Judge should retire by the age 70. I agree and take it forward.

 Prashant Padmanabhan: Previously, there had been many High Court Chief Justices who refused to accept SC judgeship.  In your career as a Judge, have you ever met any single HC Judge who declined to accept a SC berth?

 Justice Kurian Joseph (Retd.):  I have not seen.

 Prashant Padmanabhan: How often did you refer to Constituent Assembly Debates? In India, initially the Courts avoided referring to CAD, but gradually it changed. Was there occasions in your tenure as a Judge, to refer to CAD?  

Justice Kurian Joseph (Retd.):  Yes, many cases.  Particularly NJAC.

Prashant Padmanabhan: C.J.I. T.S.Thakur had a plan and constituted  five-Judge benches on a regular basis.  How far it is a good idea, in reducing pendency?

Justice Kurian Joseph (Retd.):  Certainly a good idea; any such move is welcome.

 Prashant Padmanabhan: What is your opinion about giving more importance to drafting skills and reducing the time for oral arguments? 

Justice Kurian Joseph (Retd.):  I would agree.

 Prashant Padmanabhan: What about fixing a time limit for any case?  Irrespective of which senior is arguing? Only Justice R.F. Nariman’s judgment in Md.Ariff v. Supreme Court, (2014) 9 SCC 737, fixed 30 minutes for review in death penalty cases.  Isn’t it wise to fix such time limit for all final hearing matters?

Justice Kurian Joseph (Retd.): Has any Court been  able to limit?  In practice, no Bench was able to stick to that time limit. Because to deal with life of a person, it requires details regarding the application of the parameters.

 Prashant Padmanabhan: Will it be better if lawyers submit written submissions or argument notes before the final hearing date? 

Justice Kurian Joseph (Retd.):  I agree .

 Prashant Padmanabhan: What is your view on Courts, discharging the board if other cases cannot be taken up?  This will save lot of time of lawyers. 

Justice Kurian Joseph (Retd.): Ideal thing to do. I have always done that.

FOREIGN JUDGES

 Prashant Padmanabhan: Sir, the present Chief Justice of the United States Supreme Court, John Roberts, made some interesting remarks to the Senate Committee on the Judiciary, during his confirmation hearing.  To quote him: “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.” Do you think that sometimes Indian Judges are crossing the limit of an umpire?

Justice Kurian Joseph (Retd.):  In the Indian context, the Judge is not an umpire.

 Prashant Padmanabhan: Do you think that such type of intense examination of the candidate before being appointed as Judge is good for India? If not by lawmakers, by an Appointment Commission as is being done in England?

Justice Kurian Joseph (Retd.): That is being done in the Subordinate judiciary.  Not there in High Courts or Supreme Court.

 Prashant Padmanabhan: Recently, Judge Brett Kavanugh has undergone an intense procedure in the hearing before Senate Committee on the Judiciary, because of the allegations about his sexual misconduct and CNN called his confirmation as a national disgrace. Do you think that such a transparent system of appointment will go a long way in ensuring transparency in judicial appointments? 

Justice Kurian Joseph (Retd.):  100%.

 Prashant Padmanabhan: Sir, a liberal Judge in the US Supreme Court, J. Ruth Bader Ginsberg, commented that she will move to New Zealand, if Trump is elected President. 
J. Ruth Bader Ginsberg is now 85-year-old and still continuing in office. Perhaps to maintain the equilibrium. Any comment?

Justice Kurian Joseph (Retd.):  I have no comment.

 Prashant Padmanabhan: Recently, President Trump has described a certain Judge as an “Obama Judge”.  Chief Justice John Roberts rebuked President Trump for that but the President reiterated it.  Is it imaginable in India?

Justice Kurian Joseph (Retd.): Such public attributions, nobody would dare to do it in India.

 Prashant Padmanabhan: In the United Kingdom, Judges of Supreme Court have declared their backgrounds. Two Judges, Lady Black and Lord Briggs have proudly declared that they are the first lawyers in the family.  Do you think that the first generation law graduates are having a disadvantage in legal profession in India? 

Justice Kurian Joseph (Retd.): I don’t think so. I am a first generation lawyer.

 Prashant Padmanabhan: Sir, then exceptions emphasise generality. There is a general perception that one needs a godfather to be successful in the legal profession. 

Justice Kurian Joseph (Retd.): Perception is there.  But that is not correct.

Prashant Padmanabhan: What is your opinion regarding selection of junior advocates without any experience at the Bar, to positions as Judicial Magistrates/Civil Judge junior division/still called Munsiff in some States? 

Justice Kurian Joseph (Retd.): I am against it.

 Prashant Padmanabhan: Do you think that the word Subordinate (Judiciary) in the Constitution be replaced with some other words dignified word like Civil or Criminal Court?

Justice Kurian Joseph (Retd): Subordinate to whom? Subordinate to the High Court.  Not subordinate to the High Court Judge.

 Prashant Padmanabhan: Mr.Gopal Subramanium has opined that all Courts are Constitutional Courts. Your opinion?

Justice Kurian Joseph (Retd.):  In a sense, yes.

 Prashant Padmanabhan: What is your view on Government segregating the name of Gopal Subramanium from a list sent by collegium?  Was it proper?

Justice Kurian Joseph (Retd): Government should have referred back the recommen-dation.

 Prashant Padmanabhan: Any comment on Justice Jayant Patel’s resignation?

Justice Kurian Joseph (Retd): No.

 Prashant Padmanabhan: What is your message to fellow Judges? 

Justice Kurian Joseph (Retd.):  To be humane, clear and consistent.

 Prashant Padmanabhan: What is your message to lawyers, especially young lawyers?

Justice Kurian Joseph (Retd.):  To be clean in conscience and clear in thoughts.

* Reproduction of the Interview conducted by the Leaflet, with the permission of the Leaflet and Senior Adv. Ms.Indira Jaising.

Cheers Home Buyers – Now You Can Initiate Proceedings for
Liquidation of Real Estate Company

(By Dr.P. Syamjith, Ph.D. in Law, Chennai)

Great news to home loan buyers or allottees who have invested their hard earned money into real estate projects. Now they shall be treated as financial creditors and participate in the meeting of Committee of Creditors. This in turn means that they can file application for liquidation of real estate companies and even raise their claims in the Committee of Creditors who will consider the resolution plan of the company. They will be able to decide the destiny of the company they have invested to cherish the dream of owning a home.

The Lok Sabha cleared the amendments to the Insolvency and Bankruptcy Code (IBC) that provide relief to home buyers who as financial creditors will be able to take part in the resolution process of the liquidation of Real Estate Company. The bill which was passed by Lok Sabha on July 31, 2018 was approved in the Rajya Sabha by a voice vote. 

The Hon’ble Supreme Court of India has also given their stamp of approval vide its judgement delivered on 9th August, 2018 in Chitra Sharma and Ors. v. Union of India
(W.P.No.744/2017) and held that as a result of the amendment brought about in the definition of ‘financial debt’, amounts raised from allottees under real estate projects are deemed to be amounts “having a commercial effect of a borrowing”. Hence out standings to allottees in real estate projects are statutorily regarded as financial debts. Such allottees are brought within the purview of the definition of ‘financial creditors’. The Section 7 of the IBC creates a statutory right in favour of financial creditors to initiate the corporate resolution process.

The Insolvency and Bankruptcy Code (IBC), 2016 was enacted by the Central Government to consolidate and amend the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner. Due to the huge surge in Non Performing Assets (NPA) level of banking sector, the Government felt that the early resolution of the companies will help in recovering substantial chunk of NPA.

Of late, the financial creditors have started initiating the liquidation proceedings against the real estate companies who have failed to repay the dues to the Banks. The resolution proceedings initiated by the Banks against the companies such as Jaypee Infotech and Amarpali Group are few such instances.   This amendment is a tool to protect the interest of the home buyers will be taken care in case of liquidation of Real Estate companies.

As it was originally enacted, IBC did not contain an adequate recognition of the interests of home buyers in real estate projects. The home buyers who have invested their hard earned money were not given any priority in case of liquidation of the company or any say in the liquidation proceedings. Later on, due to the constant appeal made by the home buyers across the country, the Central Government brought out the Insolvency and Bankruptcy (Amendment) Ordinance, 2018 which came into force on 6 June 2018 to address the concerns of the home buyers. As a result of the Ordinance, home buyers are brought within the purview of financial creditors under the IBC.

No doubt the Home buyers are vital stake holders while deciding the liquidation proceedings of real estate companies. Most of the home buyers have invested the money in real estate project by accumulating their lifelong savings and borrowings from
Banks/Financial Institutions. The process of corporate insolvency resolution directly impacts upon their rights and interests.

In terms of Section 7 of IBC, when a company failed to repay the dues, the financial creditor is entitled to file an application before the National Company Law Tribunal for initiating corporate insolvency resolution process against the defaulting company.

In terms of IBC, the term financial creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred, The term financial debt is defined as a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes–

(f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing;

It is  explained in the Act that any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and the expressions, “allottee” and “real estate project” shall have the meanings respectively assigned to them of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016).

As a result of the amendment brought about in the definition of ‘financial debt’, amounts raised from allottees under real estate projects are deemed to be amounts “having a commercial effect of a borrowing”. Hence out standings to allottees in real estate projects are statutorily regarded as financial debts. Such allottees are brought within the purview of the definition of ‘financial creditors’.

Section 7 of the IBC creates a statutory right in favour of financial creditors to initiate the corporate resolution process. It says that a financial creditor either by itself or jointly with other financial creditors or any other person on behalf of the financial creditor may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. In terms of the IBC, the interim resolution professional shall after collation of all claims received against the corporate debtor and determination of the financial position of the corporate debtor, constitute a committee of creditors. Financial creditors are entitled to a voting share proportionate to the extent of the financial debt owed. It is a welcome step from the Central Government and the highest court of the country.

Let’s hope that the new amendment and the consequent judgement of the Supreme Court will ameliorate the hardships of the home buyers who are waiting so long to receive the possession of their dream home.  It is said that an act or judgment will have multiplier effect if it is used to its optimum.  Hope further that the home buyers will rise up to the occasion as a united front and will keep the law going on to establish a new jurisprudence to grant relief to home buyers in distress.

a[yØ NÀ¨ AYh Mediation, {]hÀ¯\hpw e£yhpw

(By P.R.Shaji*, Advocate, High Court of Kerala)

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FÃmw XÀ¡]cnlmc a[yØ NÀ¨Ifpw hnk½X¯n \n¶pw Bcw`n¨v, k½X¯n Iemin¡pt¼mÄ BWv Hcp a[yØ NÀ¨ hnPbw BIp¶Xv.

FÃm a[yØ NÀ¨Ifpw hnhn[ coXnbnepÅ hnk½X¯n \n¶pw BWv Bcw`n¡p¶Xv F¶XnÂ\n¶p Xs¶, BbXn a[yØ NÀ¨kvXw`\§Ä adnIS¡m\pÅ, a[yØsâ kzXan²tam, BÀPnXtam, c­Ipw IqSnbtXm Bb IgnhmWv ]et¸mgpw a[yØ NÀ¨sb hnPb¯nte¡v \bn¡p¶Xv.  C§s\bpÅ a[yØ NÀ¨ kvXw`\§Ä GXv L«¯nemtWm Hcp a[yØt\m, ]mÀ«nIÄt¡m andIS¡m³ IgnbmsX hcp¶Xv At¸mÄ a[yØ NÀ¨ ]cmPbs¸SpIbpw, NÀ¨IÄ ]cyhkm\n¨Xmbn a[yØÀ {]Jym]n¨v a[yØNÀ¨ ]ncn¨v hnSpIbpw (Terminate) ho­Ipw tImSXnIÄ Sn tIknsâ tImSXn \S]SnIfpambn apt¶m«p t]mIpIbpw sN¿p¶p.

IpSpw_XÀ¡§fn {]tXyIn¨pw `mcym`À¯r _Ôhpambn _Ôs¸« XÀ¡§fmb hnhmltamN\w, Ip«nIfpsS c£mIÀXrXzw, c£m]me\w, kµÀi\ AhImiw, Poh\mwiw XpS§nb XÀ¡§fn a[yØNÀ¨ kvXw`\w Ft¸mÄ thWsa¦nepw kw`hn¡mhp¶Xpw FÃmbvt¸mgpw kw`hn¡p¶XpamW.v ChnsS a[yØsâ AXn hnZKvZamb ]mShhpw, {]hÀ¯n ]cnNbhpw, hnhn[Xcw adp]cnlmc§Ä \nÀt±in¡m\pÅ Ignhpw H¶psIm­Ip am{Xambncn¡pw ]mÀ«nIÄ X§Ä¡v Ccp¡q«À¡pw, k½Xamb Hcp Xocpam\w FSp¡m³ Ignbp¶Xv.

a[yس Hcn¡epw Ccp I£nIfn Btcbptam, Hcp I£nsb X\nt¨m Xm³ \nÀt±in¨v AYhm A`n{]mbs¸Sp¶ ]cnlmcamÀ¤§sf kzoIcn¡phm³ th­In I£nIfn k½À±w sNep¯phm³ ]mSnÃm¯XmWv. I£nIÄ k½À±¯n\p hgt§IXpanÃ.

ChnsSbmWv IpSpw_ XÀ¡ ]cnlmc¯n a[yØ-NÀ¨bpsS {]m[m\yw.

a[yØ-NÀ¨bpsS XoÀ¸v kmamt\y\ Ipdª kab¯n\pffn kw`hn¡p¶Xn\m CXv I£nIfpsS `mhnsb A[nIw _m[n¡msXbpw Ccn¡p¶p.

tImSXn XÀ¡ ]cnlmc¯nsâ ]cyhkm\¯nsâ kab ssZÀLytam, km¼¯oI _m[yXtbm {]hN\mXoXamWv. 

kz¯v kw_Ô XÀ¡¯n DSaØmhImiw, I¿hImiw, ]m«mhImiw, ]n³XpSÀ¨mhmImiw, ]Wbkw_Ô XÀ¡w, IpSnInS¸mhImiw PzÞhImiw, D]tbmKmhImiw XpS§nbhbpw, k¼¯v XÀ¡§fn ]WanS]mSpambn _Ôs¸« FÃm XÀ¡§fpw DÄs¸Sp¶p. 

tImSXn A\p_Ô a[yØ NÀ¨bn A`n`mjIcpw a[yØ NÀ¨bpsS `mKambXn\m A`n`mjIcpsS D¯chmZnXzhpw, NpaXebpw {]Xn_²Xbpw AhÀ tImSXnbn X§fpsS I£nIfpsS hmZapJw D¶bn¡p¶ coXnbn \n¶pw hn`n¶amb coXnbn Bbncn¡pw.  a[yØ NÀ¨bn ]s¦Sp¡pt¼mÄ sN¿p¶Xv ChnsS X§fpsS I£nIÄ¡v thI­n hmZ{]XnhmZ§Ä apt¶m«ph¨Ã X§fpsS I£nIsf klmbn¡p¶Xv. adn¨v A\pcRvP\ kw`mjW¯n\v DXIpw hn[w X§fpsS I£nIsf AhchcpsS tIÊnsâ KpWtZmj§Ä D]tZin¨pw Ahkm\ hn[n D­ImIphm³ FSp¡p¶ Imehnf¼w kqNn¸n¨pw, hn[n \S¸n D­ImIp¶ ImeXmakhpw, aäv Akm[mcWambn D­Imhp¶ hn[n \S¯n¸v kvXw` kµÀ`§fpw {]iv\§fpw Nq­InImWn¨pw, XzcnXKXnbn Xocpam\§Ä D­ImIpt¼mÄ D­ImIp¶ KpWKW§sf ImcyImcWklnXw hnhcn¨v sImSp¯pw ]ckv]c hn«p hogvNbv¡v thI­n am\koIambn X¿mdm¡p¶Xnt\msSm¸w Xs¶ Mediation settlement agreement X¿mdm¡p¶Xn\v I£nIsf {]m]vXcm¡n klmbn¡pIbpw BWv sN¿p¶Xv.

AXmbXv A`n`mjI³ tImSXnbn \ymb[n]s\ XoÀ¸v I¸n¡p¶Xn\pth­In \nba¯nsâbpw, sXfnhnsâbpw hyJym\w \ÂIn klmbn¡pt¼mÄ litigation lawyer Bbpw, a[yØ NÀ¨bn I£nIsf ka\zb¯nsâ ]mXbnte¡v sIm­Iphcm³ klmbn¡p¶ a[yØ NÀ¨ klmb A`n`mjI³ AYhm Mediation lawyer Bbpw BWv {]hÀ¯n¡p¶Xv. a[yØ NÀ¨ klmb A`n`mjI\v a[yØm NÀ¨ XÀ¡]cnlmc{]{Inbbn {]tXyIw {]mhnWyw BhiyamWv. ImcWw XÀ¡ ]cnlmc NÀ¨Ifn {]iv\ ]cnlmc Nn´bn I£nIÄ X½n D­ImIp¶ hnet]i X{´§Ä AYhm Bargain strategies c­Iv hn[¯nemWv  sa\bp¶X.v H¶v Integrative Bargain AYhm [Àa\njvSm[njvSnX hnet]iÂ, cI­v Distributive Bargain AYhm hn`mPIm[njvTnX hnet]iÂ. [À½\njvSm[njvSnX hnet]i X{´¯n CcpI£nIfpsSbpw Bhiy§Ä \ndth䯡 hn[¯n CcpI£nIÄ¡pw t\«w am{Xw D­ImIp¶ Hcp ]cnlmc amÀ¤w BWv Dcp¯ncnbp¶Xv.  ChnsS I£nIÄ R§fpsS XÀ¡ kw_Ôamb AdnhpIÄ At\ym\yw ]¦n«pw Bhiy¯nsâ coXn A\pkcn¨v \ne]mSv amtä­I kµÀ`¯n \ne]mSv amäm³ X¿mdmhpIbpw sN¿p¶p.

F¶m hn`mPIm[njvTnX hnet]i X{´¯nÂ, Hcp \nÝnX Afhn Dff \nhy¯n, Hcp I£n¡v em`amIp¶hn[¯nepw, aäpI£n¡v, \jvSw kw`hn¡p¶ hn[¯nepw hn`P\w sN¿p¶ coXnbnepff Cu hn`mK¡mÀ XÀ¡¯n\v A[njvSnXamb hkvXpXIsf Ipdª Afhn am{Xw ssIamdp¶tXmsSm¸w Xs¶ Ipd¨v hn«p hogvN am{Xw sN¿p¶p.

I£nIÄ X§fpsS hnet]i X{´¯n\mbn Bdv hn[¯nepff hnet]i ssienIfmWv Ahew`n¨v ImWp¶Xv. CXn BZys¯ hn`mK¯nÂs]Sp¶ kacks¸S ssien¡À AYhm Accommodative FÃmbvt¸mgpw, \nsâ hgnsb F¶ \ne]mSv kzoIcn¨v X§Ä¡v \jvShpw aäpI£nIÄ¡v em`hpw D­ImIpw hn[¯nemhpw H¯v XoÀ¸n F¯ntNcp¶Xv. c­Imas¯ hn`mK¯nÂs]Sp¶ klIcW ssien¡mÀ AYhm co-operative or collaborative, \½psS hgnsb F¶ coXn kzoIcn¨v Ccph`mK¯n\pw t\«ap­Im¡p¶ hn[¯nepff H¯v XnÀ¸n Bbncn¡pw F¯n tNcp¶Xv. aq¶mas¯ hn`mK¡mcmb aÂkc kzcq] ssien¡mÀ AYhm competitives Fsâ hgnsb F¶ coXn kzoIcn¨v X§Ä¡v t\«hpw FXnÀI£nIÄ¡v \jvShpw D­ImIp¶ hn[¯nepff Hcp H¯pXoÀ¸nembncn¡pw F¯n tNcp¶Xv. \memas¯ hn`mK¡mcmb A\pcRvP\ ssien¡mÀ AYhm compromise persons GXp hgnbpw F¶ coXn kzoIcn¨v, CcpI£nIÄ¡pw \jvSw kw`hn¨v Bbmepw Hcp H¯p XoÀ¸n F¯n tNcp¶p. A©mas¯ hn`mK¯nepffhcmWv XnckvImc ssien¡mÀ   AYhm avoidance. ChÀ  Hcp  hgnbpw kzoIcn¡m¯hcpw Hcn¡epw Hcp H¯p XoÀ¸nse¯m³ klIcWw ImWn¡m¯hcpw BIp¶p. Bdmas¯ hn`mK¡mÀ Hgnªpamd ssien kzoIcn¡p¶hcmWv. XnckvImc ssien¡mcpw aÂkckzcq] ssien¡mcpw Chsc Wriggle outers F¶v ]dbp¶p.  ChÀ a[yØ NÀ¨bn DS\ofw ]s¦Sp¡pw F¶m XÀ¡ ]cnlmc Nn´bpsS Ahkm\ L«¯nÂ, Htcmtcm ]pXnb ]pXnb ImcW§Ä I­Ip ]nSn¨v Hgnªv amdnsIm­Incn¡pItbm settlement agreement H¸nSm³ htcI kabw H¸nSm³ hcmXncn¡pItbm sN¿p¶p. XnckvImc ssien¡mcpw aÂkckzcq] ssien¡mcpw Hgnªpamd ssien¡mcpw hyàn_Ôw ]p\Øm]\¯n bmsXmcp hnebpw sImSp¡m¯hcmbncn¡pw F¶m aäv aq¶v hn`mK¡mcpw hyàn_Ôw ]p\:Øm]n¨v sIm­Imbncn¡pw AhÀ XÀ¡]cnlmc DS¼Snbn H¸v hbv¡p¶Xv.

a[yØ NÀ¨bnse Cu hnet]i X{´hpw hnet]i ssienbpw, a\knem¡n thWw a[yس Xsâ ]mSh§Ä {]tbmKn¡phm³. k¼¯v XÀ¡]cnlmc¯nembmepw km¼¯nI CS]mSv XÀ¡ ]cnlmc¯nembpw NÀ¨kvXw`\w ]et¸mgpw D­ImIp¶pIv. BbXv a[yØsâ Ignthm, AXn ]s¦Sp¡p¶ A`n`mjIcpsS AIagnª klmb klIcW§ÄsIm­tIm am{Xta AXnPnhn¡m³ km[n¡pIbpffp. {]tXyIn¨pw a[yØNÀ¨bn lmPcm¡p¶ A`n`mjIÀ tImSXn XÀ¡]cnlmc coXnbn Ahew`n¡p¶ ssien Xs¶bmWv a[yØ NÀ¨ ]cnlmc¯nepw A\phÀ¯n¡p¶sX¦nÂ, XnÀ¨bmbpw a[yØ NÀ¨ 100% ]cmPbambncn¡pw, AtX kabw a[yØ NÀ¨coXn¡v, tbmKycpw, AXv A\phÀ¯n¡p¶hcpw BWv CcpI£nIfpsSbpw A`n`mjIÀ F¦nÂ, XÀ¡anÃ, XÀ¡]cnlmc NÀ¨ hnPb¯nte Iemin¡q.

a[yØ NÀ¨ ]cnlmc {]{Iobbn a[yØsâ XÀ¡]cnlmc kao]\hpw, ssienbpw Adjudication AYh \ymbnhnNmcW XÀ¡ ]cnlmc {]{IobbpsSbpw, a[yØ NÀ¨ XÀ¡ ]cnlmc {]{IobbptSbpw {]hÀ¯\ ssienbpw, e£yhpw c­Ipw, c­Ip hn[¯nemWv.

\ymbhnNmcWbn tImSXnap³Ime kw`h§Ä¡v {]m[m\yw sImSp¡pt¼mÄ a[yØ NÀ¨bn `mhn Imcy§Ä¡mWv {]mapJyw I¸n¡p¶Xv. tImSXnIÄ hkvXpXIfn {i² tI{µoIcn¡pt¼mÄ, a[yس hyàn_ԧġv Du¶Â sImSp¯mbncn¡pw ]cnlmcw ImWm³ {ian¡p¶Xv. tImSXn hn[nbneqsS sXäpw, icnbpw, D¯chmZnXzhpw Øm]n¡m³ th­Ip¶ At\zjWw \S¯pt¼mÄ a[yØ NÀ¨bn hyàn_Ôw ]p\Øm]n¡m³ th­Ip¶ {ia§Ä \S¯p¶p. hn[n{]Øm\w KpWtZmj {]Ømh\bn Iemin¡pt¼mÄ a[yØNÀ¨ s]mcp¯ s]StemSpIqSnb Hcp XÀ¡]cnlmc¯n F¯ntNcp¶p. tImSXnhn[nIÄ IÂ]\bpsS cq]w hcn¡pt¼mÄ a[yØ XÀ¡]cnlmcw, \S]Sn{Ia§fneqsS Dcp¯ncnª,v D`bk½Xamb Hcp XoÀ¸n F¯n tNcp¶p. \ymb hnNmcWbn A`n`mjI\pÅ taÂtImbva a[yØ NÀ¨bn I£nIfpsS AhImiamWv.

    a[yØ NÀ¨ XÀ¡ ]cnlmcNÀ¨ thfbnÂ, ap³]n\mse \ne\n¶ncp¶Xpw, a[yس II­p]nSn¨p F¶v AhImis¸Sp¶ Hcp XÀ¡mhØbnte¡v Asæn XÀ¡¯nsâ Npäp]mSpIfnte¡v Hcp a[yس cwK{]thiw sN¿pt¼mÄ BWv a[yØ NÀ¨bv¡v XpS¡ambn F¶v ]dbp¶Xv. Hcp XÀ¡w Asæn Hcp {]tXyI AhØ amän In«phm³ I£nIÄ kzta[b ssIsIm­Ip ]ehn[ hnet]i {ia§fpw hyÀ²amIpt¼mÄ, AhÀ X§fpsS XÀ¡ ]cnlmc kvXw`\mhØbn F¯p¶p. 

km[mcWbmbn Adntªm AdnbmsXtbm Hcp \nÝnX \nhr¯nbn \n¶pw hn`P\mSnØm\¯n F\n¡v F´v e`n¡pw, \n\¡v F´v \jvSamIpw F¶pw, [Àa\njvS[njvSnX hn`P\¯n Ccp I£nIÄ¡pw ]ckv]c t\«¯n\pÅ kmlNcyw \ne\n¡p¶p­I­v F¶XmIpw I£nIfpsS Nn´IÄ.

Hcp a[yس, a[yØNÀ¨ {IaoIcW coXnsb, km[mcWbmbn tPmUnIfmbmbn BWv  hnhcn¡p¶Xv.  AXmbXv {]iv\ ]cnlmc¯ns\Xncmbn  AhØm ]cnhÀ¯\w F¶pw Asæn hyànXz¯n\v FXncmbn hyàn_ÔXzw F¶pw, a[yØ NÀ¨ {]{Inbsb hn\ymkcoXnItfbpw, ssienItfbpw tPmUnIco¡p¶Xv KpWtZmj aqey\nÀWbSnØm\¯n\v FXncmbn XÀ¡]cnlmc Ifsamcp¡Â F¶pw, AhImimSnØm\¯n\v FXncmbn XmÂ]cymSnØm\w F¶pw, ¢n]vXs¸Sp¯nb {]iv\ \nÀhN\¯ns\Xncmbn  kv]jvSamb {]iv\\nÀhN\w F¶pw BWv.

a[yس Xsâ {]mtbmKnI ]cnioe\¯ntâbpw {]hÀ¯n]cnNb¯ntâbpw ASnØm\¯nepw kzkn²hpw, BÀÖnXhpw Bb IgnhpIfpsS ASnØm\¯nepw, Xsâ imkv{XobambtXm, XXzimkv{X]cambtXm Bb hnizmk¯nsâbpw ASnØm\¯nepambncn¡pw a[yØ NÀ¨bn Xsâ CSs]SepIfpw, CSs]SmXncn¡epItfbpw Xocpam\n¡p¶Xv.

km[mcWbmbn aq¶p hn[¯nepÅ a[yØ NÀ¨ {IaoIW (Orientation) BWv, a[yØÀ kmlNcy§Ä A\pkcn¨v A\phÀ¯n¡p¶Xv.

    1. XÀ¡s¯ ¢n]vXs¸Sp¯n, hyàambn ImWp¶, \nba]camb AhImi§sf {IaoIcn¨pÅ kao]\w ssIs¡mÅp¶ a[yØÀ, I£nIsf AhÀ¡pÅ \nba]camb AhImi§sfIpdn¨v Hcp ImgvN]mSp­ImIphm³ th­I klmbw sN¿pIhgn, I£nIsf X§fpsS tIÊnsâ \nba]ÝmXe¯nepÅ _et¯bpw,  e£yt¯bpw Ipdn¨v Aht_m[w D­fhm¡pIbpw sN¿p¶p. Nne kµÀ`§fn Nne a[yØÀ I£nIfpsS tIÊnsâ KpWtZmj \nÀWbw sNbvXv, D]tZi¯nsâ kao]\w kzoIcn¨v, Hcp ]s£ tIknep­ImIm³ t]mIp¶ hn[nsb Ipdn¨vt]mepw {]hNn¨v I£nIÄ X½n Hcp H¯pXoÀ]nse¯p¶Xn\pth­In {ian¡p¶p.

    2. Nnea[yØÀ H¯pXoÀ¸v F¶ e£y¯n\v Du¶Â sImSp¡p¶Xn\p ]Icw, ]cnhÀ¯\ {]Xyimkv{X N«IqSnsâ klmbt¯msS, I£nIfpsS imàoIcW¯n\pw, AwKoImc§Ä¡pw, DÅ Ahkc§Ä¡mbn D]tbmKn¡p¶p.

   3. [Àa\njvTm[njvSnX a[yØ NÀ¨ XÀ¡ ]cnlmc {]{Iobbn a[yس I£nIsf Xsâ e£y {]m]vXn¡mbn kv]jvSamb XÀ¡ \nÀhN\¯neqsSbpw, XÀ¡ ]cnlmc e£yw IIpsIm­IpÅ Hcp kao]\¯neqtSbpw, I£nIÄ¡v At\ym\yw em`w D­Im¡p¶ hn[¯nepÅ Hcp XÀ¡ ]cnlmckmlNcyw Hcp¡nsImSp¡p¶p.  Cu coXn Ahew`n¡p¶ a[yس km[mcWambn a[yØNÀ¨ Ifsamcp¡Â ssien Ahew_n¨v, I£nIfpsS \nehnepÅ XmXv]cy§fpw Bhiy§fpw a\Ênem¡n AXn {i² tI{µoIcn¨v, Ccp I£nIÄ¡pw kwXr]vXn D­Im¡p¶ hn[¯nepÅ Hcp XÀ¡ ]cnlmc¯n I£nIsf F¯n¡p¶p. 

            I£n XmÂ]cym[njvSnX XÀ¡ ]cnlmcXXzw Ahew`n¨v a[yØ NÀ¨ sN¿p¶ a[yس, I£nIsf AhcpsS \nehnepÅ AhØbpsS ImgvN]mSn \n¶pw, AhcpsS ZrjvSn amän, AhcpsS Bhiy§fn tI{µoIcn¡phm³ t{]mÂkmln¸n¡p¶p. AXn\pth­In AhcpsS Hfn¨p hbv¡s¸«ncp¶ XmÂ]cy§tfbpw, Bhiy§tfbpw

]pds¯Sp¯v Im«ns¡mSp¯v, I£nIfpsS XmÂ]cy¯nsâ ASnØm\w t\m¡n  [Àa\njvTm[njvTnX XmÂ]cymSnØm\ hnet]i ssienbneqsS AhchcpsS \nhr¯nbpsS aqey hym]vXn hÀ²n¸n¡m³ Ignbpw F¶pw AXphgn AhcpsS ]caamb e£y{]m]vXnbn AhÀ¡v F¯m³ Ignbpw F¶pw a\knem¡n sImSp¡p¶p.

            “I£nIsf X§fpsS hn`P\m[njvTm\ \oXn t_m[¯nsâ temI¯p\n¶pw, AhcpsS aÕckzcq] X{´w amäm³ Blzm\w \ÂIn AhcpsS Ct¸mgs¯ ØnXnbn \n¶pw hn`n¶ambn X§fpsS bYmÀ° Bhiy§fpw XmÂ]cy§fpw a\Ênem¡n sImSp¡pIbpw F¶XmWv I£nXmÂ]cymSnØm\ þ I£n klIcW ssienbneqsS ]cnlmc¯n\v {ian¡p¶ a[yØsâ Gähpw henb shÃphnfn."

            ]e a[yسamcpw, a[yØ NÀ¨]cnlmc thfbn H¶n IqSpX a[yØ NÀ¨ XÀ¡]cnlmc kao]\§Ä FSp¡p¶pI­v. km[mcWbmbn a[yØ NÀ¨Isf Ifsamcp¡Â AYhm {]Xy£s]Sp¯Â, kao]\¯nÂ, I£n XmÂ]cymSnØm\ XÀ¡]cnlmc kao]\ ssienbn \n¶pw XpS§n KpWtZmjaqey\nÀ®bw AYhm hgn¡m«Â kao]\w Ahew`n¨, AhImimSnØm\ XÀ¡]cnlmc amXrIhsc kzoIcn¡p¶p.

*(LL.M in Adr+., From Hamline University, MN - U.S.A.),acredited to be Meditor of Supreme Court of Minnesota at U.S.A., Acredited Mediator and empaneled Arbitrator of High Court of Kerala,Erstwhile Research Intern of Hamline University Mediation Clinic, at Minneapolis in U.S.A.).

CAN A MAGISTRATE ACTING UNDER S. 146 of the Cr. P CODE

TAKE POSSESSION OF THE ATTACHED PROPERTY BY

HIMSELF OR THROUGH HIS SUBORDINA1ES?

(K. Raghavan Nair, Advocate, Tirur)

It has almost become the common accepted practice in the erstwhile Malabar area of the State for Magistrates acting under S. 145 of the Cr. P. Code to attach property; in dispute and entrust it to the Village Officer for management. The question is: Is that practice warranted by law? Does the section confer any such power on the Magistrate?

2. There are indeed a catena of cases which take the view that he has such power all of which including the recent decision of our High Court reported in 1968 KLT 554 harp on the question: what else should he do? None of the decisions unfortunately goes into the scheme of the sections of the Code and try to pinpoint the conferment of power therein. There are also some decisions contra But as has been pointed out in a recent Full Bench case 1970 K.LT 611, there is no Deed to perpetuate erroneous decisions.

3. S. 145 no doubt arms a Magistrate to deal with a situation which may lead to a breach of the peace. Attachment of the property under that section is not the rule but the exception. S. 145 (4) 3rd proviso contemplates an attach­ment only in the case of an emergency, implying that in ordinary cases the very fact that as soon as a likelihood of the breach of the peace is brought to the notice of the Magistrate normalcy will prevail, it, the person who is in actual possession whether rightfully or not, will not be disturbed until the dispute is settled in the proceedings before him. The emergency contemplated in the proviso cannot be acts of violence because an order taking the property into the physical custody cannot certainly prevent it. The emergency must be with reference to the property, like forcible dispossession of the party in actual possession or transfer of possession by him to some third party eventually defeating the object of the ultimate order. In the case of the former, the Police can act even without an order of attachment; the person ultimately succeeding in the proceeding being restored to possession. And in case the person who is in actual possession transfers possession to third parties, the order of attachment can be invoked so as to effectively prevent the successful party being deprived of the fruits of the decision under S. 145 (4).

4. S. 145 (4) contemplates only a situation where it is possible to determine who was in possession on the date of the order under Sub section (1). It also contemplates only a summary proceeding lasting for a few weeks. That is why it does not make any provision for the interim management of the property. On the other hand, even during this short duration of the inquiry certain acts of husbandry may have to be done in the property and the Code by way of abund­ant caution provides for such a situation in Sub S. (8). It is interesting to note in this connection that a separate order is to be made by the Magistrate under this sub-section. If the order of attachment under the proviso above referred to is all embracing so as to enable the Magistrate to take over the management of the property it was quite .unnecessary to have made provision for a separate order under this Sub-Section.

5. S. 146 on the other hand envisages a situation which is to last a little longer and where it may be necessary to provide for long term arrangements. Here he has to attach the properties as soon as he comes to the conclusion that none of the parties to the dispute was in possession of the property or when he is unable to come to a decision and forward the records of the proceedings to the Civil Court along with his statement. The words "may attach it" in this section have to be interpreted to mean "shall attach it", as since according to the opinion of the Magistrate none of the parties to the dispute was in possession or he is unable to decide as to who was in possession on the date of the first order he has to obtain actual control. Sub-S. (2) Then provides for the appointment of a Receiver and that too only if the Magistrate thinks it fit to do so. Here again the appointment of a Receiver, even when the property is according to the opinion of the Magistrate "in medio" is not a matter of course.

6. Thus it will be seen that when a longer period of litigation was envi­saged express power was conferred by the Code for the appointment of a Receiver and when a shorter period was in view only power for proper custody of sale of articles subject to speedy and natural decay. If the word ''attach" in these Sections has the same meaningas it should have by all canons of statutory construction to include in its ambit the taking into possession of the property in dispute, then Sub S. (8) of S. 145 and Sub S. (2) of S. 146 are both redundant. Such a construction has always to be avoided and by 'a true construction of the Sections S. 146 only empowers the Magistrate to get actual control of the pro­perty. As has been pointed out by the Supreme Court in 1966 (II) SCWR. 48 (para II) where the legislature when it wanted certain things to be included in­corporated it in certain Sections but did not do so in other sections is a clear indication that the omission was willful. Here again it is interesting to note that S. 146 does not provide for any situation as is contemplated in S. 145(8). It was because S. 146 (2) was sufficient to meet such situations also.

7. This inevitably leads to the conclusion that under S. 145 the Magistrate has no power to get actual control of the property except in cases under Sub S. (8). Any order passed attaching the property and entrusting it to Village Officers is totally without jurisdiction and void. If the Courts introduce into the Section any such power by way of interpretation it will be usurping legislative functions which has always been frowned upon by Superior Courts.

8. In this connection, it may be of use to refer to S. 88 of the Code where elaborate provisions are made for the attachment of the properties of an absconder, conditions expecting to last for any uncertain time.

9. In my humble view the decision in 1968 KLT. 544 may require reconsideration.

Liability of Hindu husband for maintenance

Of his wife

(K. K. Unni Advocate, Trichur)

I read with interest an article" in the above caption appearing in the September issue of AIR 'contributed by Advocate Sri. B. R. Mandlokar of Nagpur The article is mainly directed against the decision of the Supreme Court in Nanak Chand v. Chandra Kishore Aggarwal and others reported in AIR. 1970 Supreme Court 446. The writer fears that the decision has created an anomaly by holding that the scope of S. 488 Cr. P.C. is different from that of S. 4 (b) of Hindu Adoptions and Maintenance Act 1956 and that the result of the decision is if the wife seeks remedy of enforcement for maintenance in Criminal Court her personal property and income derived there from has to be ignored.

What is decided in the above said case by the Supreme Court is that there is no inconsistency between the provisions in the Hindu Adoptions and Maintenance Act and S. 488 of Criminal P.C, that both can stand together and that S. 4 (b) of Adoption and Maintenance Act does not repeal or affect in any manner the provisions contained in S. 488 of Criminal P.C. One other point considered and decided in the decision by the Hon'ble Court was as to the meaning and cope of the word 'child' used in S. 488. Having considered the different meanings of the word 'child' Their Lordships held that in S. 488 of Cr. P.C. as the word is used in correlation with the father, it does not mean a minor son or daughter and can only mean a son or daughter without any limitation as to age, the only qualification necessary to entitle to maintenance being that it is unable to maintain itself. This decision sets at rest the conflict of opinion on this point amongst the High Courts and even among the Judges of the same High Court.

In the light of what has been decided in the above said decision of the Supreme Court, it is difficult to imagine how the fear expressed in the article by Shri. Mandlokar could be justified. For one thing the question of maintenance of wife did not arise for consideration in the said case nor was it considered, the claim in the case being for the maintenance of children only. It is not therefore correct to say that the result of the Supreme Court decision is ''that if the wife seeks remedy of enforcement of maintenance in Criminal Court her personal property and income derived there from has to be ignored and excluded in determining the quantum of maintenance to be awarded to her." The Supreme Court Judgment does not even touch this aspect. The learned writer of the article appears to be under the impression that it is only by applying the provisions in the Hindu Adoptions and Maintenance Act that a Court will have the power to take into account the income of the wife for the purpose of fixing the quantum of maintenance. That is quite unnecessary. For one thing the Hindu Adoptions and Maintenance Act applies to Hindus only. Can it be that regarding the Hindus alone the wife's income is to be taken into account and not in the case of other communities? S. 488 of the Criminal P.C. is intended for all communities. It is a self-contained provision. It gives wide discretionary powers to the Magistrate in the matter of granting maintenance. Where the court's power is discretionary all factors including the resources of the wife can be taken into account for fixing the quantum of maintenance or even to refuse the grant of maintenance. There is nothing in S. 488 to show that in fixing the monthly allowance the court should consider the means of the husband alone and shut its eyes to the means of the wife. S. 488 does not warrant the grant of maintenance to a wife; with a fabulous income by a husband with meagre resources.

Instances are not rare where courts have not only considered the income of the wife in arriving at the quantum of maintenance to be granted but have even re­fused to grant maintenance to the wife when she has sufficient means to maintain herself. There is a catena of decided cases of various High Courts bearing on this question. I would like to refer only to a very recent ruling of the Kerala High Court reported in 1970 KLT. 554 (Ramankutty Achan v. Kalyanikutty) in which, after discussing the case law on the point the learned Judge holds that the wording of S. 488 does not warrant the exclusion from consideration of the wife's income in fixing the rate of maintenance. The wife in that case was an earning member and her income almost equalled that of the husband and being sufficient for her maintenance according to her status, the High Court set aside the order granting her maintenance.