IF A CHRISTIAN WOMAN MARRIES A HINDU SOLELY IN A HINDU CEREMONY OF MARRIAGE IS SHE ENTITLED TO AN

ORDER FOR MAINTENANCE UNDER S. 488 OF THE

CRIMINAL PROCEDURE CODE?

By

J. Duncan M. Derrett, D.C. L.

Professor of Oriental Laws in the University of London

This short article is a criticism of Kunhiraman Nair v. Annakutty 1967 KLT 24 the decision of a single judge Mr. Justice K. Sadasivan. There can be no doubt but that his judgment met the needs of justice. The woman, whose right to maintenance had been challenged by a man who had kept her as his wife for several years and who had begotten a child on her, and who had recognized her as his wife and his child as legitimate, was certainly morally entitled to be maintained by him, and the learned judge, in upholding the magistrate's order did what any right-thinking man would have wished him to do. But technically the decision may have been wrong. And the Indian law should be reconsidered, so that a better state of affairs may be arrived at. If, as I contend, Sadasivan, J/s decision was incorrect in law, but right in morals, the case of Annakutty convicts the Indian law of error. Let us look into the matter.

Marriages between Christians and Hindus take place quite often. And it is of no use for upper-class Hindus, whether in Madras City or in New Delhi, to say that ''such people ought not to exist, it is better that we ignore them". There are castes, of which the best known is that of the Madras, amongst whom marriages between Christians and Hindu are common. Admittedly, the majority provide no practical problem, because one of the spouses is converted-- though even there an attempt is made sometimes to contend that the conversion was not complete or effective in law. When Christians are converted to Hinduism for this purpose, and the union is accepted by the caste, the matter is not worth scrutiny, and in practice the sincerity of the conversion, and its relation to public policy, is not entered into. A recent and typical case is Seethalakshmi v. PonuswamyILR. I966 2 Mad. 373, 1967 2 MLJ. 334. The fact that Pakistan might, in similar circumstances, take a very different view -- Mhd. Mustafizur Rahman v. Mrs.Rina Khana P. L. D. 1967 Dacca 652. Compare Mira Devi v. Aman Kumari AIR. 1962 M. P. 212 (profession of a religion is a formality). -- is neither here nor there, for Pakistan is not a secular state.

We are concerned here with marriages between Christians and Hindus in which neither spouse was converted prior to the marriage and each retained his or her religious affiliation. I think most readers would agree that India being a secular state it is high time that if there is (as there certainly is) a problem here there ought not to be one. As matters stand we have the personal law system, so that the Christian wife of a Hindu will have no rights against the Hindu at Hindu law unless the Hindu law itself recognizes the marriage as valid. Alongside this particular situation there is the Indian Christian Marriage Act, 1872, which permits non-Christians to marry Christians;-- It permits a Christian and a non-Christian to marry in the forms prescribed by the Act itself. In 1892 the Legislature believed that marriage between a Christian and a non-Christian was utterly outside the scope of the Act of 1872. This is made abundantly clear by the provisions of the Marriage Validation Act, II of 1892, which actually penalises any person licensed under S. 9 of the Act if he performs any such marriage (S. 6): i. e. such marriages must be performed under Parts I and III of the Act of 1872, or not under the Act -- and there is the Special Marriage Act, 1954, which permits Indians of any religion or none to intermarry. The argument often heard is that since we have these two statutes there should be no problem, since the spouses can get their marriages registered under either of them, and if they are not intelligent enough to do this, they deserve no consideration but what of their issue? Should they have been more intelligent in choosing their parents? I am afraid the difficulties of the couple who actually marry under Hindu rites, one of them being at the time a Christian, must be investigated in their own interests and in the interests of their children.

1 pointed out in my Religion, Law and the State in India London (Faber). 1968, p. 342 that the Hindu Marriage Act, 1955, left it completely uncertain whether Hindus who married Christians under Hindu rites and ceremonies would be governed in matrimonial matters and otherwise by the Hindu law. I had made the same objection in my earlier book, Hindu Law, Past and Present, but the only reaction was that a reviewer duly noted the fact. (S. Varadachariar at The Hindu– Sunday 23 Feb. 1958). In my Introduction to Modem Hindu Law (1963) Atbpara 262, I dealt with the topic very briefly, but a reviewer somewhat nastily declared that I was completely wrong. (S. S, Nigam at Law Quarterly Review, April 1965, p. 315. I had never heard of Mr. S. S. Nigam until I read his detailed and curiously-pitched review of my book, and I have never heard of him since apart from two articles on the development of Hindu law). I fear he himself did not know the Hindu law on the subject.

The position is that the Hindu Marriage Act provides for marriages between any two Hindus; and since it does not contemplate marriage between Hindus and Christians the "over-riding" section applies. The previous law is only abolished so far as the Act of 1955 makes provision, and (he previous law remains in force so far as it is not inconsistent with the Act's provisions (S. 4). From this it is evident that if a marriage between a Hindu and a Christian under Hindu rites was valid anywhere at Hindu law before 1955, it remains so still. But the matrimonial regime will not necessarily be that laid down in the Hindu Marriage Act, except in so far as Justice, Equity and Good Conscience so provide, until (that is to say) the non-Hindu spouse is converted to Hinduism, whereupon (I apprehend) the matrimonial reliefs set out in the Hindu Marriage Act would be available to them. But the reader will object: what is the use of this supposition, since the Indian Christian Marriage Act in the clearest terms provides that a marriage between a Christian and a Hindu not registered in accordance with that Act is void'? This requires careful scrutiny.

I think we should commence with the Indian Christian Marriage Act. The position revealed is exceedingly unsatisfactory. Sec. 4 of that Act provides that "every marriage between persons, one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void." If this were to be taken literally the position would be as described by Napier, J., in his order of reference to the Full Bench in In re Kolandaivelu (1917) 40 Mad. 1030 (33 M. L. J. 148) at p. 1032-3.

"If this section is not to be so read (i e as not referring to marriages purporting to be solemnized in accordance with usage amongst Christians) it would follow that the legislature in 1872 has declared void all marriages according to casts custom between a Hindu and a Christian, with the necessary result that the children are illegitimate and cannot acquire rights of property. I very much doubt whether the legislature intended to interfere in this manner with Hindus among whom marriages are regulated by caste custom’

Sadasiva Ayyar, J., in the same order of reference (Ibid., at p. 1035) said,

"If the word 'solemnize' as used in the Act merely means 'celebration (including celebration with Hindu or Mussalman rites), the Act cannot be said not to violate the principle of religious neutrality followed almost without exception by the Indian legislature, a violation which visits followers of religions other than the Christian with very severe criminal penalties for doing acts not prohibited by those other faiths. A construction which credits the legislature with such violation should, if possible, be avoided. A Sunni Mussalman male and a male of one of several of the Shiah sects can validly marry according to his law in the permanent form and with Muhammadan rites a 'Kitabia'…If S. 68 of the Christian Marriage Act be interpreted as widely as has been done in Queen-Empress v. Yohan (1894) 17 Mad. 391 and Queen-Empress v. Paul (1897) 20 Mad. 12 a Khaz who performs a marriage between a Mussalman male and a Christian female according to Mussalman rites is liable to the punishment of transportation for ten years. Whereas a Christian minister or Marriage Registrar who performs a marriage with Christian rites or the declaration ceremonies mentioned in S. 51 between a Mussalman male and a Christian female is not subjected to any such penalty and performs a perfectly lawful and valid act. It may be said that when S. 4 declares that a marriage 'solemnized otherwise than in accordance with S. 5 between two persons though one of them alone is a Christian is void, the legislature does interfere with the Mussalman religion and the additional imposition of criminal penalties of a severe nature on such solemnization by the later S. 68 does not, in principle, carry the interference further."

In "spite of these sensible remarks the decision of the Full Bench was that when a Hindu purohit solemnizes marriage between a Hindu and a Christian (he of necessity could not be appointed a Marriage Registrar, not being a Christian) he is guilty of an offence under sec. 68 of the Indian Christian Marriage Act, 1872. The judgment of the court included the words, ''Under that Act all marriages of Christians must be performed, on pain of nullity, in one of prescribed forms". The reasoning was that the whole history of the legislation, in, England and then in India, was to prevent clandestine marriages. The reasoning is hardly sufficient to support that conclusion, which, though at first glance entirely supported by a literal interpretation of sec. 4, is obiter and was not required for the decision of the question, which was that of the purohit's guilt. In fairness one should point also to the obiter remarks of Shephard, J., at Queen-Empress v. Fischer (1891)14 Mad. 342, 361, and to the opinion of the Legislative Council expressed in the i Bangalore Marriages Validating Act, XVI df 1936 (Preamble). To be weighed along with the Madras we have the Allahabad and Bombay views. They too do not deal with our question directly, and provide only sidelights upon it. But both in Emperor v. Maha Ram (1918) 40 All 393 and in Saldanha v. Saldanha (1929) 54 Bom 288 the learned judges agreed with observations in Madras that the validity of marriages was not the chief concern of the Act of 1872, and opined further that the Act was not intended to operate to the prejudice of personal laws except as to matters of form. In the Allahabad case, the circumstances in which were not utterly dissimilar with those of the South Indian situations with which I am concerned now, the judges expressed great doubts whether the legislature could have intended to prohibit, or render void, marriages performed in a non-Christian form and valid by customary law. These are only opinions, though entitled to great weight, because common sense is behind them. In Sm. Swapna Mukherjee v. Basanta Ranjan Mukherjee AIR 1955 Cal. 533 which was a bigamy prosecution, the husband was acquitted because the court assumed that his alleged conversion to Hinduism was not valid and that therefore his marriage to a Hindu woman by Hindu rites was not a valid marriage, wherefrom he could not be guilty of bigany So strict an interpretation suited a criminal case of that description. But where their Lordships go on to say, without citation of authority, that a Christian cannot marry a Hindu under Hindu rites and ceremonies they take as established something which the law has not yet determined, and though not obiter this expression of opinion could conceivably be per incuriam To make matters worse we shall see that when it comes to proof of celebration of marriage for the purposes of applying sec. 488 of the Criminal Procedure Code, the courts have not insisted upon actual proof: thus it does not follow that the marriage is "void" if one cannot show that it has been performed with all due regard for the "prescribed forms" laid down in the Act. However, I must emphasize that the law had not (until our instant Kerala decision) gone so far as to dispense with proof of ceremonies conforming to the Act when there was proof that ceremonies inconsistent with the Act were actually performed: that is quite another matter.

Thus, taking into account the Madras Full Bench decision and the equally obiter opinions in Allahabad and Bombay, and the unsupported judicial opinion in Calcutta in more recent times, the legal position in Malabar as left in In re Kolandaivelu (1917) 40 Mad. 1030, 33 MLJ. 148 in 1917 is this: -

(1) Irrespective of the validity of any marriage solemnized under the provisions of the Act of 1872; and

(2) Irrespective of the validity of any marriage solemnized under non-Christian rites between two parties one of whom only is a Christian (an issue which was not thrashed out thoroughly in the Full Bench judgment);

(3) it is a penal offence to celebrate a marriage ceremony purporting to marry a Christian and a non-Christian otherwise than in strict accordance with the Act (the severity of the penalty depending upon the gravity of the offence);

(4) but it remains not finally decided whether a customary marriage between a Hindu and a Christian under Hindu rites is valid as a marriage, the general inference left after reading In re Kolandaivelu (1917) 40 Mad. 1030, 33 MLJ. 148 being that it is not. In an area of India governed by Madras autho­rities that inference prima facie rules until a decision to another effect is obtained from the High Court.

What does Hindu law say upon all this? In Mrs. Chandramani Dubey v. Ram Shankar Dubey AIR. 1951 All. 529, 1950 All LJ. 932 the matter was gone into thoroughly and it was held that Hindu law raised no objection to a marriage between a Hindu and a non-Hindu under Hindu rites. This need not be doubted. The dharmasastra rules do not contemplate a marriage between a Hindu and a non-Hindu of a sacramental, samskara type; but it is clear that the dharmasastra never exhausted the whole Hindu law of marriage, as even an elementary know­ledge of legal history would confirm. In Rajammal v. Mariyammal AIR. 1954 Mys. 38 it was held, following the Dubey case, that there is no rule of Hindu law which forbids the subsistence of a marriage one of the parties to which is a non-Hindu. The learned judge pointed to the ideals of the secular state and, rightly, held that the marriage was valid. In the Dubey case the couple did marry under the Act of 1872, and the problem had been about the rights of inheritance of the issue.

At this point the reader may ask, why was the Indian Christian Marriage Act, s;c. 4, not referred to in the case of Rajammal AIR, 1954 Mys. 38? The answer is simple. That Act was not introduced into Mysore state excepting the C. & M. Station, Bangalore) until 1 April 1951 under the provisions of sec. 3 of the Part B States (Laws) Act, Act 3 of 1951. The marriage between the Hindu male and the Christian female, valid at Hindu law, took place before that date.

Thus we are in this position, that marriages in parts of India where the Indian Christian Marriage Act was not in force (and is still not in force) at the relevant time the ceremonies we are discussing were not criminal offences and the marriages were (and are) valid if in accordance with caste usage and custom. But as soon as the Act was introduced (for in the greater part of India it has been introduced) the discrimination the learned judges in Madras complained of actually came into effect. Yet, the fact that celebration of such a marriage will be a crime does not determine whether the marriage is really "void". Such an anomalous situation is well known to all India. Several marriages (e. g. child marriages) which it is a crime to procure or celebrate are unquestionably valid

While I prefer the Allahabad view and deplore the decision in In re Kolandaivelu (1917) 40 Mad. 1030, as did the learned editor of the Madras Weekly Notes at the time (1917 M.W.N, cl.xxxiv-v), I am bound to take note of it, and so are the judiciary in the Malabar area of Kerala. Perhaps one day the Supreme Court will iron out this tangle. May be the contemplated Code of Family Law will arrive sooner. Meauwhile we cannot expect the High Court of Kerala to proceed as if there were no problem when the case is between persons domiciled in the Malabar area, who were subject to the Act since 1872.

Now in Kunhiraman Nair v. Annakutty 1967 K. L. T. 24, the wife applied under sec. 488 of the Criminal Procedure Code, and the husband denied the validity of the marriage. As we have seen, there were abundant materials which supported his previous belief that he was validly married to her. In June 1960 the couple were married simply and solely with-rites such as are recognizable as rites appropriate to the marriages of Nairs. The husband urged that the cere­mony was void under the Indian Christian Marriage Act. He was entitled to do so, relying purely and simply (though dishonestly) upon the wording of sec. 4. He did this because he and his wife belonged to Malabar, were married at Calicut and had their matrimonial domicile in Malabar. The order petitioned against was that of the Munsiff Magistrate of Manantoddy. Had the spouses belonged to the Cochin area or the Travancore area it would have been another story, since the Indian Christian Marriage Act was never introduced there. (The section reads "It extends to the whole of India (except the territories which, immediately before the 1st November 1956 were comprised in the States of (Travancore-Cochin, Manipur and Jammu and Kashmir)." See Civil Court Menual (M. L. J.) vol. I (1959), p. 636. Manipur in fact has received the Act as a result of the Part C States (Laws) Act, 30 of 1950. The Miscellaneous Personal Laws (Extension) Act, 48 of 1959, did not extend the I.C.M.A., 1872, to any territories). The learned judge said in 1967 K. L. T. 24, 25:

"We are not very much concerned in this case as to whether the marriage between the respondent and the revision-petitioner was solemnized under the provisions of the Indian Christian Marriage Act. For the purpose of S. 488 Cr P. C, it is enough if the respondent satisfies the court that she has been treated by the revision petitioner as his wife."

And the learned judge refers to an Orissa case which does not entirely bear him out (it was between two Christians!), and to which we shall turn presently.

If this were to be correct (it is not) we should have in modern Indian law two standards by which to assess matrimonial status. We have the validity of marriage as established by the personal law of the spouses, or the personal laws of the two spouses where these differ (a matter of some doubt in this instance;), and we have an ad hoc validity for the purpose of the Criminal Procedure Code. This cannot be right. The Criminal Procedure Code cannot authorize the magi­strate to treat as married two spouses who do not have the capacity to marry; where the marriage could not have taken place; where any actual marriage de facto cannot have been valid de jure; or where it has actually been declared null and void! This last point, which is obvious, had to be established in (Govindasami Mudaliar v. Muthulakshmi Ammal (1966) 1 M. L. J. 208: "Where there is a finding as to the status of the parties that there was no relationship of husband and wife between them, by a civil court, it would obviously bar a criminal court from entertaining a petition under S. 488 of the Code."

The law on these points, it is submitted, is as follows. The burden of proof of the subsistence of a vaild marriage lies upon the applicant wife: Manickam v. Poongavanammal A.I.R. 1934 Mad 323; older uncontradicted authorities to the same effect: Pwa Me v. San Hla A. I. R. 1914 Low. Bur. 266, Wafoon v. Ma Thein Tin AIR. 1914 Upp. Bur. 30. A definite finding that the applicant is the husband's wife must be recorded if the validity of the relationship is challenged. Only legally married wives are entitled to maintenance, and the High Court will interfere if the magistrate awards maintenance without justifying his action by a finding as to the relationship: A. T. Lakshmi Ambalam v. Andiammal, AIR. 1938 Mad. 66. In many such cases the man contends that the woman is only a concubine and that no valid ceremony ever took place. Such questions must be decided by the magistrate in his own court: Mt. Mangli v. Ganda Singh AIR 1932 Lah. 301, Mt. Ganga Devi v. Ram Sarup AIR. 1939 Lah. 24, approved in Mathura Bai v. Mt. Marachoo Kuer AIR. 1946 Pat. 176. If the question is whether the couple lived' as man and wife or as a man with his concubine, and if no evidence as to the marriage is forthcoming, the magistrate is not compelled, as a civil court is in restitution cases, to demand strict proof of the marriage ceremony. The presumption raised by several years of open and continuous cohabitation, accepted by the community as a marriage, and confirmed by the birth of issue taken generally as legitimate, will suffice and the magistrate may proceed upon that at basis alone K. J. B. David v. Nilamoni Devi AIR. 1953 Or. 10 (a marriage between Christians in Orissa, purporting to have taken place in conformity with theIndian Christian Marriage Act may be proved from cohabitation and repute for strict proof of the ceremony, e. g. the qualifications of the minister, may be impossible and unreasonable); Satish Chandra Sen Gupta v. Charu Bala A.I.R. 1962 Tri. 61; Bogis Mangati v. Applama A.I.R 1932Cal 866, 59C1 1257; Parvathy Ammal v. Gopala Goundar (saptapadi omitted) 1956 2 M. L. 3. 468; Veeraraghava Gramani v. Bommiammal (presumption held) A.I.R. 1955 N. U. C. 3194 (.Mad.); Gopal v. Gopal (presumption rebutted) A.I.R. 1955 N. U. C. 1039 (Punj.).

Where the marriage is challenged by the husband upon a ground which is plainly intelligible to the magistrate, or the High Court acting in revision of his order, there is no objection to the validity's being tried by him or by the High Court: Manickam v. Poongavannmmal (marriage between sub-castes valid at Hindu law though unknown to custom), AIR. 1934 Mad.323. Where the marriage was irregular but not invalid, the order under S, 488 must be made, even though the personal law shows that such marriages ought not to take place, and the magistrate may take judicial notice of the difference between irreguarity and nullity: Mating Pathan v. Ma San A. I. R. 1939 Rang. 207; Conally v. Conally A. I. R. 1931 Pat. 213, 133. T. C. 175. Where, however, the personal law or laws utterly forbid the marriage, as in Calawlia Jude v.Lancelot Jude 1945 2 Cal. 462, marriage under the Act of 1872 is void, notwithstanding compliance with its forms.

Where, on the other hand, the husband contends that, though he lived with the applicant as his wife, they could not have been validly married because of some abstruse point of personal law, upon which rulings are not readily to hand (as they were in our instant case), the magistrate may award maintenance and his order may be terminated or vacated if and when the husband succeeds in a declaratory suit or a petition for nullity in the civil court: E. S. Nath Das v. S. Dassi (1937) 41 C.W.N. 898; Satish Chandra Sen Gupta v. Cham Bala A. I.  R. 1962 Trip.61.

Now in many cases the personal law includes the right of divorce otherwise than by decree. It is notorious that a husband's divorce of his wife under Muhammadan law operates to put an end to her rights under S. 488, and he can exercise his right to divorce her even in his answer to her application! The magistrate has no jurisdiction to ignore this divorce. Similarly, many castes have customary divorces, and the husband's claim that the wife has already been divorced. In one very strong case the High Court held that the magistrate should have awarded maintenance under S. 488 though at one time the wife was living with the husband's brother as if she were his wife and so had raised the presumption that she had been divorced. But it was not proved on the husband's behalf that he divorced her under Hindu customary law, nor that any panchayat had met to dissolve the marriage or to recognise its dissolution by him; Babu Nandan v. Mt. Punia A. I. R. 1926 AH. 426.

In conclusion I am under the impression that in Kunhiraman Nair's case 5967 K.L.T. 241, the learned judge should have taken notice of the invalidity of the marriage, (since, whatever we think S. 4 of the Indian Christian Marriage Act ought to mean, an authoritative opinion of the Madras High Court was available to him), and should have set aside the magistrate's award-- even though that would have been hard on the hapless reputed wife. If he believed that the law of Travancore-Cochin applied, he should have taken issue as to domicile, and the question would have been argued and recorded. It evidently did not apply, and the Act of 1872 went to the root (or must have appeared to go to the root) of the marriage. True, strict proof of marriage is not always required, but where the marriage is denied upon the ground that no prescribed ceremony took place, but rather that a non-prescribed ceremony took place, and this is not contested by the wife, the whole suggestion of "marriage by repute" falls to the ground. It is wel known that solemn taking of women as concubines is an institution of Hindu usage, with which the Anglo-Hindu law has failed to cope adequately. On the whole S. 488 of the Cr. P. C. has enabled many second-class marriages to count as marriages for the summary protection of discarded women: and that is prob­ably consistent with public policy. The best way one would think, of teaching men not to take women in forms ostensibly matrimonial but actually and intentionally as initiatory of concubinage is to nail them under S. 488. But this argument is not enough to rescue the decision of Sadasivan, J., from technical inaccuracy.

Had the learned judge been properly served by counsel ha would, I surmise, have submitted the question to a Full Bench in the Kerala High Court. Had this been done the discrepancy between Malabar law and Travancore-Cochin law would have been ventilated, and some Kerala legislation would have resulted. The Kerala legislature has tidied up so many corners of the confused personal laws of Kerala that this surmise seems quite reasonable.

Meanwhile let us devoutly hope that S. 488 will not be allowed to create a new matrimonial status, called by a special name so that we have Hindu marriages, Muslim, Jewish, Christian, Parsi, and Special marriages, and a final category 'S.488 Cr. P. C. marriages'. That would really be intolerable.

DECISION IN 1969 K.L.T. 498

(N. K. Sreedharan, Advocate, Ernakulam)

The above decision appears to have created great confusion in the minds of judges, landlords and tenants. Normally a landlord claims market rate for paddy and other commodities when the tenant is not inclined to pay in kind and opts to pay in cash. Now according to the decision reported in 1969 KLT. On page 498 a tenant who has not got fair rent fixed by Land Tribunal for his holding is bound to pay the price notified under the Maximum Prices Order.

His Lordship V. R. Krishna Iyer J. has considered the impact of the Maximum Prices Order on the right of a landlord to demand the price of paddy and held that the tenant is not bound to pay the black-market rate, but is liable to pay the price fixed under the Maximum Prices Order.

Now the position is that a tenant while paying fair rent need pay only the price published by the District Collector under S. 43 of the Land Reforms Act whereas another tenant paying contract rent should pay a price not exceeding that fixed under the Maximum Prices Order. The price published by the District Collector may be the same as the maximum price fixed under the Maximum Prices Order. There may not be any difference at all between the two prices at a particular time. But sometimes there may be difference also.

Under S. 43 of the Land Reforms Act the District Collector causes to be published every quarter prices prevailing in each taluk of paddy, cocoanut, are canut, pepper, groundnut, tapioca, cashew nut, and any other notified crop. Price of paddy or any other commodity may not be the same throughout the State. There may be variation from place to place inside the State itself. The District Collector's publication will indicate such variations in the District. Differences in prices prevailing between Taluk and Taluk will be reflected in the publication. Further the publication will contain the prices of commodities other than paddy also. Moreover the prices will be reviewed quarterly. Whether publication of changes in the prices of commodities in this manner is advantageous to the landlord or tenant, what S. 36 (2) says, is that money value of commodities shall be computed with reference to the rates published in the Gazette under section 43. Of course Section 36 (2) restricts this facility to cases where fair rent has been determined under S. 31 or 33. But in the Miscellaneous Chapter IV it is expressly provided by S. 113 that for the purposes of the Act the price of any commodity referred to in S. 43 to be commuted into money at the market rate for any date shall be commuted at the price of that commodity published by the District Collector under S. 43 for the relevant quarter. In other words the prices published under S. 43 should be deemed to be market rates. Payment of rent cannot be said to be outside the purposes of the Land Reforms Act. Thus reading Ss. 36 and 113 together it can be seen that all tenants, whether fair rent has been fixed or not for their holdings, should pay the prices published by the District Collector under S. 43 from time to time in their respective Taluks and not any other price.

It would appear from a reading of the Order in question that His Lordship proceeded on the assumption that, when clause 2 of S. 36 is not attracted, there is no other provision in the Act specifying the money value of the rent payable in kind. There is no reference to S. 113 in the Order. Probably S. 113 was not brought to His Lordship's notice. The counsel might not have bothered to bring the Section to the notice of the Court since according to the tenant's counsel there was really no difference between the price relied upon by the learned Munsiff and the price notified as the "controlled price".

Even though the price published by the Collector and the price notified under the Maximum Prices Order may be the same I respectfully submit that a reference to the Maximum Prices Order was unnecessary in the case. Ss, 36, 43 and 113 covered all cases of money value of rent payable by tenants. When there was exhaustive and clear provision on the point it was not necessary to have relied upon the price fixed under a different Order.

Again resort to the Maximum Prices Order also will not solve the question. The aforesaid Order did not fix the price of paddy. It only prohibited sale of paddy for a higher price than that fixed therein. Paddy itself was divided into fine, medium and coarse varieties and different maximum prices fixed. The price of fine variety also varied according to the particular species of paddy. In all cases landlords may not be satisfied with the price for coarse variety, nor will the tenants be prepared to pay the maximum price for fine varieties. Therefore it becomes a matter for evidence. And each case will have to be decided on the evidence adduced therein with the anomalous result that one and the same court may be decreeing different rates for paddy for the same period according to the evidence available in each case.

The Kerala Paddy (Minimum and Maximum Prices) Order 1964 prevailed till 3 -- 9 -- 1965 until the Kerala Paddy (Maximum Prices) Order 1965 was publi­shed. Now since 1 – 4 -- 1968 the Kerala Paddy (Maximum Price) Order 1968 has fixed a uniform maximum price for all varieties of paddy of fair average quality of Kerala origin at Rs. 56.25/- per quintal. Evidently fine, medium and coarse varieties’ cannot fetch the same price in the market. But the same maximum price can be fixed for all these varieties because the Order does not fix the price at which paddy should be sold but only fixes the ceiling price and prohibits sale above that ceiling price. The 1965 Order remained in force for about 2 1/2 year. The Order did not take into consideration the local and seasonal changes which were to be taken into account in a publication of the prices by the District Collectors. Again the Kerala Paddy (Maximum Price) Order fixes the maximum price for paddy alone so that the tenant for whose holding fair rent has not been fixed will have to pay the market rate for other notified commodities until maxi­mum prices are fixed for those commodities too. A reference to Collector's publication under Section 43 will save the court and parties from an enquiry into the market value of such commodities. Section 113 provides for, warrants and directs such a reference.

The object of fixing the maximum price under the Maximum Prices Order is quite different from that of publishing the taluk price of commodities every quarter under Section 43 of the Land Reforms Act. Maximum Price Orders are made in exercise of the powers conferred under the Essential Commodities Act 1955", the provisions of which are meant to meet altogether a different situation.

The equitable consideration that the landlord will have to pay that price (that fixed under the Maximum Prices Orders) if he wants to buy rice or paddy is not every material in determining the price payable by a tenant in the face of express provisions in that behalf in the Land Reforms Act itself.

Under these circumstances it is respectfully submitted that the principle laid down in the above decision requires reconsideration. Or else the subordinate judiciary will be decreeing the maximum price fixed for paddy under the Kerala Paddy (Maximum Price) Order and will be enquiring into the market price of commodities like groundnut, cotton and sugarcane despite the clear provision in Section 113 of the Land Reforms Act.

The Kerala Land Reforms (Amendment)

Act 35 of 1969

Divesting of Jurisdiction of Civil Courts

(M. Velayudhan Nair, Advocate, Alatur—Palghat)

 The emasculation of the landholders which was begun by the Legislature about 40 years ago has been completed by the Kerala Land Reforms (Amendment) Act 35 of 1969 It is a revolutionary measure, containing drastic provisions which deprive land-owners of their rights of ownership and enjoyment and will throw them out of gear by upsetting their domestic economy. The new Amendment Act has abolished, overnight, the rights of ownership of all the landlords and intermediaries in the holdings outstanding in the possession of the cultivating tenants by vesting those rights in the Government with effect from 1st January 1970 and providing for assigning those rights to the cultivating tenants for a nominal price-payable in sixteen easy annual installments. The compensation provided “to be paid to the ultimate land-holders and intermediaries is most inadequate and illusory. On account of the vesting of the rights of ownership of the lands in the Government with effect from 1-1-1970, the landholders and the intermediaries are prevented from collecting the future rents of the properties accruing since that fateful day-1 st January 1970. This disability imposed by the Statute coupled with the absence of a provision for immediate payment of ad­equate compensation as the just equivalent of the rights of ownership and the provisions deferring the payment of compensation to a future date in sixteen annual installments will immediately create a problem for the landholders and the intermediaries they will be literally thrown into the streets. It is really a problem of existence of the large number of landholders in the State whose mainstay is the income that they have been getting from their lands. It is well to remember that there are only very few hereditary jenmies in the State. The fact is, but it is conveniently forgotten by the politicians who vie with one another ,n the matter of passing tenancy legislation, that the large majority of the landholders in the State belong to the middle class who have purchased properties with their hard earned savings and they either leased those properties to tenants or purchased the properties outstanding in the possession of tenants at a time when leases were permitted by the law and when granting leases was considered as a normal mode of enjoyment of properties. On the face of it therefore it was extremely cruel to tell these landholders and intermediaries one fine morning that from tomorrow onwards they will cease to be the owners of their properties and their rights of ownership stand transferred to the Government  and those rights are proposed to be assigned to the tenants on easy terms, whether they want it or not It is well known that the annual income from one acre of double crop land would now be about 250 paras of paddy, but "the fair rent" calculated according to the provisions of the new legislation would not come to more than 45 paras of paddy Per acre. The tenant has to deposit only the price of 45 paras of paddy for one acre of double crop land annually for 16 years towards the purchase mice and he can only enjoy the remaining income. In the meanwhile, the ultimate jenmi and the intermediary will not get any rent from the tenants and they are faced with the prospect of starvation. This, in short, is the desperate predicament to which the landlords and intermediaries .are reduced by the provisions of the Amendment Act. It is no wonder that the new Act has become a nightmare to all the landholders in the State.

2. One general observation falls to be made at this stage. And that is that all that the cultivating tenants really wanted was fixity of tenure besides a small reduction in the contract rent. These reliefs have been secured to them by the provisions of the parent Act I of 1964. There was therefore no need to thrust the jenm right on the cultivating tenants and to make provisions compelling them to purchase the jenm right from the Government-- whether they want it or not. It is a matter of common knowledge and it is significant that, although the parent Act I of 1964 contained provisions for enabling tenants to purchase the landlords' right through the Land Tribunals, very few tenants filed applications in that behalf.

3. For obvious reasons it is not possible to deal with all the drastic provisions of the new Act in this article. For the present, I am confining myself in this article to a criticism of the provisions in the new Act which seek to stultify the powers of the Civil Court in certain important matters and to transfer its jurisdiction to the Tahsildars and Land Tribunals.

4. In the guise of introducing measures of agrarian reform several provisions have been enacted in the new Act which have absolutely no relation to land reforms and which are calculated to open the door wide for trespassers and to enable unscrupulous persons to trespass on other people's lands and' to cultivate them and enjoy the rents and profits thereof without any obstruction being caused thereto by injunction orders granted and receiver appointments made by the civil courts. The so-called Amendment Act of 1969 seeks to effectually stultify the powers of the civil courts by depriving them of their jurisdiction to try and decide important questions regarding the existence of the relationship of landlord and tenant between the parties-- questions which are essentially matters to be tried and decided by the civil courts -- and investing the Tahsildars, the Revenue Divisional Officers and Land Tribunals with that jurisdiction. I am referring to new Ss 26, 29-B and 125 and to the amended S. 32 of the Act.

5. New S. 26 takes away the jurisdiction of the civil courts to entertain any claim for arrears of rent and invests the Land Tribunals with that jurisdiction. Be it noted that the Officers to be constituted Land Tribunals under the Act are judicial Officers of the rank of a Munsif or au Officer not below the rank of a Tahsildar. Even Subordinate Judge's courts, whose pecuniary jurisdiction is unlimited, cannot entertain suits for arrears of rent or michavarom after 1st January 1970. It is a matter of common knowledge that difficult questions of fact and law usually arise in suits for arrears of rent and michavarom. New Section 29-B enacts that any person claiming to be a cultivating tenant of any land is entitled to apply to the Tahsildar for an order that he is entitled to cultivate the land, complaining that he is prevented or obstructed from cultivating that land and the Tahsildar shall after making such enquiry as he deems necessary, decide whether the applicant is entitled to that land and the Tahsildar is entitled to pass an order restoring the applicant to possession of that land and allowing him to cultivate it. Sub-section 3 of new S. 29-B provides that if any suit is instituted by the opposite party relating to the said property after the date of the application to the Tahsildar, the Court shall not grant an injunction restraining the applicant from cultivating the land till the final decision in such suit. S. 32 has been amended by substituting the word "land" for the word "holding". These new-provisions are calculated to give a license to mischievous persons-- rather they amount to an invitation to them -- to take the law into their hands and to trespass on other people's properties and wrongfully enjoy the rents and profits thereof during the pendency of the proceedings before the Tahsildars and the Land Tribunals without any fear of their activities being interfered with by any injunctions granted or Receiver appointments being made by the civil courts.

6. New S. 125 which replaces old S. 125 is in the following terms:—

125. Bar of Jurisdiction of civil Courts.

(1) No civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Board or Government or an Officer of the Government:

Provided that nothing contained in the sub-section shall apply to proceedings in any Court at the commencement of the Kerala Land Reforms (Amendment) Act, 1969.

(2) No order of the Land Tribunal or the appellate authority or the Land Board or the Government or an Officer of the Government made under this Act shall be questioned in any civil court, except as provided in this Act.

(3) If in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only.

(4) The Land Tribunal shall decide the question referred to it under sub section (3) and return the records together with its decision to the civil court.

(5) The Civil Court shall then proceed to decide the suit or other proceeding accepting the decision of the Land Tribunal on the question referred to it.

(6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the Civil Court.

(7) No civil court shall have power to grant injunction in any suit or other proceeding referred to in sub-section (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub-section has arisen, till such question is decided by the Land Tribunal and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms (Amendment) Act, 1969 or before such question has arisen, shall stand cancelled."

7. This is one of the most mischievous and dangerous sections introduced by the Amendment Act. The effect of sub-sections 3 to 7 is that if in a suit for injunction or recovery of possession on the strength of plaintiff's title as against a trespasser, the defendant-trespasser simply puts forward a false and dishonest plea that he is a tenant of the properties, the civil court is bound to stay the suit and refer the question regarding the existence of the alleged tenancy to the Land Tribunal for decision and the civil court is bound to await the decision of the Land Tribunal and to give its imprimatur to the decision of the Land Tribunal on the question referred to it and to pass a decree accepting the decision of the Land Tribunal-- although the civil court is satisfied that the decision of the Tribunal is prima facie wrong and perverse or contrary to law. And till the Land Tribunal decides the question regarding the existence of the alleged tenancy referred to it under sub-section 3, the civil court is prohibited from exercising its jurisdiction togrant an injunction or appoint a receiver to protect the plaintiff's possession and to secure the rents and profits of the properties in the interval (Vide the first part of sub-section 7). If a person in possession' is wrongfully ousted from possession by a trespasser or if his peaceful possession is illegally threatened by another or if a person commits or threatens to commit waste on his property by cutting trees or demolishing buildings or otherwise, the person in possession should certainly be entitled under the general law to protect his possession by suing in ejectment or for an injunction on the strength of his possessory title. Such a person can always say that his possession cannot be disturbed and he is entitled to invoke the jurisdiction of the civil court to issue an interim injunction or to appoint a receiver to help him to maintain his possession or to secure the rents and profits of the properties pending suit. This is a fundamental right of the person who is in possession on the strength of his possessory title.

8. S. 125 is a dangerous provision which will lead to disastrous consequences, opening as it does, a wide door for persons to take the law into their hands and molest and disturb persons in peaceful possession of their properties. What is the remedy of the person who was in possession of the property, if the person who trespassed on his property claiming tenancy right is ultimately found to be an imposter, having absolutely no tenancy right or possession or right to possession of the property? He is obliged to submit to the trespass and to look on helplessly with folded hands when the trespasser harvests and takes away the crops raised by him and commits waste and cultivates his land and enjoys the rents and profits thereof, until such time as the Land Tribunal decides the question of the existence of the tenancy against the trespasser. And then it will be too late to grant the preventive relief of injunction, as by that time the trespass will have been completed and the plaintiff would be put to heavy and irreparable loss and difficulties.

9. Now, a dispute as to the existence of the relationship of landlord and tenant is an important matter and often raises difficult questions of fact and law. The question whether the defendant in a suit for injunction or for possession on the strength of plaintiff's title is a trespasser or is in lawful possession on tenancy right, is as his Lordship Chief Justice Mr. P. T. Raman Nayar points out in a recent case Kunchan Kumaran v. V. Ramachandra Iyer - 1969 K. L. T. 822 essentially a question for the civil court to decide. Besides rank trespas­sers, persons claiming to be in possession under leases granted in contravention of Section 74 of the Act and persons who may have obtained leases from the Urallers of a Devaswom to which the properties do not belong - just as in the case in Narayanan Nambiar v. Raman Chettiar (1969 K.L.T. 499)-- and persons claiming to be "deemed tenant" under Sections 4 to 11 of the Act may claim tenancy rights. These are difficult questions which can be satisfactorily decided only by the civil courts. What is the reason or justification for depriving the civil courts of their jurisdiction to decide questions involving such disputes and investing the Land Tribunals with that jurisdiction? Is it to be supposed that the Officers who are to be constituted Land Tribunals under the Act are more learned or more efficient and competent than the judges who preside over the civil courts?

10. Curiously enough, the jurisdiction of the civil court to entertain suits for injunction or possession on the strength of title as against a trespasser is not taken away by the Act. It is retained; but its jurisdiction to try and decide the question of the existence of the tenancy claimed by the defendant is taken away by the new Act and that jurisdiction is given to the Land Tribunal and the civil court is commanded to accept the decision of the Land Tribunal on the questions referred to it and to pass a decree accepting the decision of the Tribunal although the civil court-- it may happen to be a District Court or a Subordinate Judges' Court -- may justly feel that the decision of the Land Tribunal on the question referred to it is wrong and perverse and contrary to law. Paradoxically enough, the ultimate decree in the cause (which is based on the decision of the Land Trib­unal) will have the appearance and effect of a decree and judgment of the civil court, although the civil court has not applied its mind to the matter in dispute and is not in any way responsible for the decree and judgment! Nothing can be more absurd and ridiculous than such a situation. In ray opinion, the provisions of new S. 125 constitute an insult to the judiciary.

11. Sub-section 7 of new S. 125 enacts a contradiction in terms. The first part of sub-section 7 prohibits the granting injunction or appointment of receiver by the civil court only till the Land Tribunal decides the question of the "existence of tenancy etc., referred to it under sub-S. 3. It is obvious that the words "any such injunction or appointment" occurring in the second part of sub-S. 7 can relate only to the injunction granted or receiver appointment made by the civil court under the first part of this sub-section, viz., injunction granted or receiver appointments made by the civil court in any suit or other proceeding coming within the purview of sub-S. 3. And if, as I shall show presently, sub-section 3 applies only to suits and other proceedings initiated after the coming into force of the Amendment Act 35 of 1969, and suits and other proceedings pending at the commencement of the Act of 1969 will not fall within the purview of sub-section 3, injunctions granted and receiver appointments m3de by the Civil Court in suits and proceedings pending at the commencement of the new Act cannot be affected and cannot be treated as cancelled. The second part of sub-section 7 is inconsistent with the first part and is also in irreconcilable able conflict with the proviso to sub-section 1 which is a saving clause, saving proceedings pending in any civil court from the operation of sub-section 1 which is the provision that bars the jurisdiction of the civil Court to decide any question or matter which is required to be decided by the Land Tribunal. It is obvious that the question as to the existence of the alleged tenancy mentioned in sub-section 3 is a question which is "required to be decided" by the Land Tribunal within the meaning of sub-section 1.

12. Apart from the proviso to sub-section 1 of S. 125, the language used in sub-section 3 also shows that only suits and other proceedings which are instituted after the coming into force of the Amendment Act 1969 come within the purview of sub-section 3. Note that the expression used in sub-section 3 is "arises". Where therefore a dispute or question as to the existence of tenancy has already arisen between the parties in a suit or proceeding pending at the commencement of the new Act, in other words, where a civil court is seized of the question or dispute in a suit or proceeding instituted before the commencement of the Act, the civil court will not lose its jurisdiction to adjudicate upon that question and therefore is not bound to stay the suit and refer the question to the Land Tribunal for decision and the civil court is competent to grant injunctions and appoint receivers in such suits and proceedings. Such suits will not come within the purview of sub-section 3. In other words, the provisions in sub-sections 3 and 7 commanding stay of the suit and reference of the question mentioned in sub-section 3 to the Land Tribunal and prohibiting the granting of injunction and appointment of receiver have no retrospective operation and are inapplicable to suits and proceedings instituted before the coming into force of the Amendment Act. This principle is illustrated by the recent Full Bench decision in AIR. 1970 Andra Pradesh 1. The decision in this Full Bench case turned upon the correct interpretation of S. 56 (1) of the Andhra Pradesh Abolition and Conversion Act 26 of 1948 which provided interdict that when, after an estate is notified, a dispute arises as to (c) who is the lawful riot in any holding, the dispute shall be decided by the Settlement Officer''. The question before the Full Bench was whether S. 56 (1) applies to a case where the dispute contemplated by the section arose before the notification under sub-section 4 of S. 1 was published on 27-1- 1964 and as and from that   date the estate in suit stood transferred to the Government. The suit had been filed on 25-4-1959 and had been decided in plaintiff's favour on 24-1-1962. The appeal was filed in the High Court on 1-3-1962. The notification under sub-section 4 of S. 1 transferring the estate to the Government was published only during the pendency of the appeal on 27-8-64. The Full Bench held that the provisions of S. 56 (1) are not retrospective in operation, in divesting the jurisdiction of the civil court in matters arising before the date when the section came into operation. According to the learned Judges, a dispute will arise only when such a dispute has to be determined by some authority competent to determine it. "Where, however, a dispute in fact arises for adjudication before any of these authorities competent to determine it prior to the estate being notified, it cannot be said that the dispute arises again subsequently at any time". "The language of S. 56 (1) does not lend itself to the interpretation, whether express or implied, that the authorities already seized of a dispute in respect of matters referred to in that sub-section are prohibited from adjudicating thereon". Again Their Lordships say "It is a well established principle that a jurisdiction once vested cannot be divested unless the legislature has expressly or by necessary intendment directed otherwise". The principle had been laid down earlier in another Bench decision of the Madras High Court by Govinda Menon and Chandra Reddy JJL in an unreported case (which is referred to in the Full Bench decision) where their Lordships held that S. 56 of the Abolition Act 26 of 1948 does not affect pending proceedings nor does it take away the rights incidental to the filing of the suit.

JUDICIAL TAXATION WHETHER JUSTIFIABLE.

(S.Sasthankutty Pillai B- A., B. L., Advocate, Nagercoi)

1. Taxation byway of Court fee is being levied from parties throughout the world. But it is a matter to be seriously considered whether such taxation is justifiable and whether it should be continued.

2. Indian Union is considered to be one of the progressive States in the world. But in no part of the world such high fees are being levied as in India and in the Madras State the highest fee is being levied than in any other part of India Though the principle is that all fiscal statutes should be strictly construed and in cases of doubts and ambiguities interpretation should be in favour of the subject, in actual practice we find the other way Some courts assume the role of a taxing officer and try to exact as much as possible from the party. To set aside an adverse order on court fee by taking it in revision it will cost the party a very large sum, which in certain cases will be more than the amount that he may have to pay as ordered by the court.

3 The idea of taxing the litigant public to deal justice is against all notions of justice and that in a democrats; State It is the primary and the foremost of the duties of a State to administer justice to the parties and that without any remuneration. Generally the aggrieved party comes to court with a complaint, that he is wronged, that injustice has been done to him and that he should get redress through court. But the State makes a bargain and says, "pay our dues, then we will hear you." The party is in difficulties and he must undergo further trouble in raising the necessary funds for payment to the State. The aggrieved party is not always in affluent circumstances. Demanding Court fee from him is nothing but exploitation of his difficulties or to put it mildly it is doing business in litigation. The State should not be doing business in the administration of justice. Dealing out justice is a sacred duty imposed on the State. Otherwise there is no "difference between the State and the trader who sells commodities to his customers for ready cash payment. The trader hands over some concrete material to his customer in exchange for the price paid. But what do the litigants get in Courts of justice? It can be said that they get declarations and decrees. By the mere payment of institution fee the party does not get justice. The entire burden of proof and the conduct of the litigation is on him. The presentation of plaint in accordance with law, production of records, examination of witnesses, engaging a pleader for the conduct of the case, to argue it and place the matter before court are all his work. He has to incur further expenses for getting copies of Court records, for battas for the issue of commissions and several other innumerable payments. If no evidence is produced or if the evidence produced is inadmissibe the party looses his case, though his claim may be true in fact. For getting a decision that the party has not proved his case or that he has not conducted the case efficiently so as to bring conviction to the court he has to pay the stipulated dues and meet all other expenses. In our courts we get only legal justice; justice according to law and legal evidence. Courts of law have no responsibility in the decision of cases according to truth. Courts of law have their own limitations, the law of Limitation, the Evidence Act and the Procedure Codes and other enactments, control the courts. With these limitations they can give only such justice. Decision in accordance with truth in many cases is a mere chance. Very often the intelligent and powerful win and the weak and the poor loose. Dr. Rajendra Prasad in his article in "Young India" has observed as follows: "litigation has come to be regarded and rightly so as a sort of gambling; however true your cause, however true your case, you cannot be sure of winning it", See Extract of the article in Justice P. N. Rama-swamy's Magisterial and Police Guide, Volume I, page 201.

4. The levy of Court fee and other charges from the litigant public is of recent origin, after the British rule began in India. Under the Hindu Kings, a suitor was not required to bring his action in a court of justice by the precious payment of a duty in the shape of stamps as court fee just as one has to do at the present day, nor was any procees fee levied from him. The King entertained all complaints and enquired them. The King's attendant performed the duties of the peon and the process server. The Hindu Sovereigns regarded it his paramount duty to administer justice without any idea of remuneration. From the texts of the ancient Hindu Law-Givers such as Manu, Naradha, Yejnvalkva and Vishnu we find that no court fee was levied, but the defeated party had to pay a sum by way of fine to the successful party and out of that a portion was paid to the sovereign. During the Mohamedan rule prior to and subsequent to the Mughal period the administration of justice by the State was free. The local authorities and the Kazies of the provinces were entrusted with the administration of justice. Appeals were provided to the Chief Kazy. The parties can also get justice direct from the Emperor in person for which the Emperor had fixed certain days in a week. But aggrieved parties were never charged with any tax for giving them justice. History tells us that during Moghal period there were other taxes illegal and improper according to modern ideas such as the poll tax. But administration of justice was free and considered to be one of the primary duties of a sovereign.

5. In the early period of the British supremacy in India there was no tax on litigation. But subsequently on the pretext that frivolous and vexatious litigation should be controlled, the British Government began enacting laws imposing tax on the litigant. In Madras, court fee was first levied as per Regulation III of 1782, in Bengal court fee was first levied as per Regulation XXXVIII of 1795; in Bombay it was introduced in 1802; in the Native State of Travancore it was first introduced as per Regulation I of 1010 M. E. Before that, the State was defraying all the expenses of the judicial establishment in consonance with the accepted idea that it is the duty of the State to administer justice to the subjects free of cost.

6 .Levy of court fee is sought to be justified on the ground that the expenses incurred for the establishment of law courts, its maintenance and up-keep should be realised from the litigants who seek its help. That the object of the court fee Act is to levy fees for the services rendered by courts and public officers is expressed in some of the decisions of our High Courts. See I. L.R. 32 Madras 305 at page 311. But levy of Court fee by the State in exchange for justice is strongly condemned by jurists like Bentham. According to Bentham it is the primary duty of the State which is responsible for all the litigations to decide it without taxing the party. There are contrary views also. Another ground urged for its justification is that this is one of the sources of income to the general finance of the State. The observation of justice Manu k in 49 Indian Cases 442 at page 449 is to this effect. But this view is uniformly condemned as unjust. When the Court Fee Bill was first introduced in the Indian Legislative Council, the eminent jurist Maine strongly condemned the policy of taxing litigants for the benefit of the general finance of the State. Chief Justice Leach, of the Madras High Court in his farewell address to the Madras Bar, on the eve of his retirement has observed, that making of profit by administering justice cannot be justified on any ground

7. Every State is incurring a good deal of expenditure on the judicial establishment. But that is no justification for imposing any tax on the unfortunate litigant public. Litigants who come to courts are generally in difficulties and to tax such people is cruel. For meeting the expenses of the State in connection with the administration of justice, the State must look to the general finance and not to the litigant. There are innumerable sources of income to the State and new sources are being tapped day by day Innumerable taxes unknown to ancient society are being collected today. These taxes hit each and every individual in the State including the litigant. But from whatever source the revenue is taken, the State as the sovereign body is bound to dispense justice and refrain from taxing the unfortunate section of the public who happen to be litigants.

6. There are a few provisions in the Civil Procedure Code which exempt poor parties from payment of institution fees. Order XXXTII C. P. C exempts pauper plaintiffs from payment of court fee on plaint; and Order XLIV exempts pauper appellants from payment of court fees on appeals: but pauper plaintiffs and appellants have to meet all other expenses. Order 33 and 44 C. P. C. are only a postponement of the payment of fees; it will be realised by the State from the patties.

9. It is high tine for the public to agitate and the authorities to consider the removal of all tax so litigations, by repealing the Court Fees Act, as early as possible

HER HOARY MAJESTY-- THE LAW

(T. G. John, Advocate, Trichur)

Law it is said, is a very proud and jealous mistress. While she sweeps aside with a jerk and a caution those romping, roving and rapacious Don Juans and Casanovas who oggle ravenously at her, she is bountiful and nurtures with due alacrity those who approach her in the right royal way. Here is a domain not for bally ragging rapscallions but for the gentle and the bashful who woo her ardently with a song in their hearts. She is never pugnacious but always pulsates with cherubic enthusiasm scintillating an' aura of peace and goodwill wherever she goes. Her creed -- to set right wrongs done to others. And today while she ruminates over the past chiliads of years, she can only smile with some reticence even at King Solomon in all his glory attempting to solve a complicated question of disputed parentage by a 'simple and sure' child-cutting farce, as only a faddish fantasy of yesterday.

There is however one solitary instance which looms large before us where Her Majesty played a double game with one of her most passionate and illustrious suitors. Himself a bad and despicable character, his very name gives a jolt to the whole of humanity even today. In a mad endeavour to save the Majesty of Law, he had to 'wash his hands' without water. The man is Pontius Pilate, Pontius Pilate was a great jurist. He was a bad character but he knew the law of the land. "Lord Shaw of Dunfermline, in a remarkable study of the Trial of Jesus Christ, has sketched how the Sanhedrin flouted the Jewish traditions of a fair trial, since embodied in the Talmud. Under that law-as in ours-an accused person could not be condemned out of his own mouth. But this salutory safeguard was ignored and Jesus was questioned by his accusers and on his answers they pronounced him guilty-when he was no. However the Sanhe­drin could not pass sentence of death and they remitted the case to Pilate, the Roman Governor. Pilate had a bad record but he knew his law. He saw that the trial was riddled with irregularities illegal arrest, trial by night and inadmissible evidence. All that was obnoxious to the Hebrew Law and jurisprudence-of Rome. A defiant mob was at his gates, clamouring for the blood of Jesus, but Pilate had no hesitations whatsoever. He quashed the proceedings. At that moment he upheld the Majesty of Law and vindicated the right of the subject to its protection" (Naga Rajan -- Norton Endowment Lecture).

The rest of the story is briefly told. Jesus Christ on the crucifix pleaded for a general amnesty for all those who were involved in his trial and crucifixion because, they 'knew not what they were doing'. In quashing the proceedings and at the same time "washing his hands" and leaving Jesus to an infuriated mob it could never be said that Pilate did not know the full implication of what he was doing. That is why pious Christians even today believe that Pilate was never a beneficiary of the general amnesty pleaded for by Jesus on the Cross. The great sequel is that Pontius Pilate lost heaven because he was a great jurist.