A MURDER IN THE HIGH SEAS -- 'CIRCUMSTANTIAL EVIDENCE ALONE'

(V.A. Abdul Azeez, B.A B.L., Legal Assistant, Kerala Law Secretariat)

It was a fine Sunday afternoon. The year was 1947. S. S. Durban Castle was ready at the Cape Town Harbour for a long voyage. There were two hundred and sixty-three passengers. Beautiful Rounie Gibson, aged twenty-one, occupied a first class cabin. No. 126, on B. deck. Prom the very start of the voyage a deck steward by name James Camb had shown considerable interest in Miss Gibson. Durban Castle started sailing on 10th October bound for Southampton.

The first few days of the voyage were uneventful. Miss Gibson dined with two table companions on the evening of October 17th. She also particip­ated in the dancing which followed the meal. She was in good health and high spirits. At 12.30 A.M. she was seen talking with Camb. That was the last time she was seen alive.

The bell in her cabin rang twice during that night and it was the duty of the night watchman to answer such calls. As the night watchman pushed open the door he observed a man standing inside the cabin whom he recognized as James Camb. Then the door was shut in his face and a voice said it is ‘alright’.

With the incident still alive in his mind at 6’o clock next morning, the night watchman informed the stewardess in charge of the Cabin what had happened in Cabin No. 126 the previous night. She knocked on Miss. Gibson’s door, and had found that it was unlocked. The Cabin was unoccupied. She commenced a search of Miss Gibson, but failed to trace her. The news was shocking. The Stewardess informed the Captain and an official search of the Ship was made immediately. Enquiry of the passengers and crew yielded no results. The conclusion was that in some manner the passenger had been lost overboard. The ship was put back over her course for a search of the sea and an urgent radio message was flashed to all the ships in the vicinity to keep good look out.

All these attempts failed to trace the body and the vessel continued on her home-ward run.

James Camb was the first suspect. There had been trouble between this deck steward and lady passengers on several previous voyages. He was examined by the ship’s surgeon. This revealed very severe and recent scratches on his shoulders and wrists. Camb said they were self-inflicted while attempting to seek relief from itches. It was improbable. No sane man will inflict such severe scratches on one’s own body.

The ship arrived in Southampton on 24th October. Camb was interviewed by the Police. Inside Cabin No. 126 finger prints were found and were identified as those of James Camb.

At last after repeated questionings Camb made a statement which was taken down in writing and which he signed. The effect of that statement was that he had made an appointment at IIP. M. on the 17th to meet Miss Gibsonand he met her at 2 P. M. in her Cabin and with her consent hadsexual connection with her. While in the act, she had suddenly clutched at him and foamed at the mouth, and that he could not find that her heart was beating. Thinkingshe had fainted he tried artificial respiration on her. While doing this the night watchman knocked at the door and tried to open it. He shut the door saying that it was alright. Finding no sign of life he managed to lift her to the port-hole and pushed her into the sea. Without a body it was obviously impossible for the medical experts to say anything about the cause of death.

Camb was committed for trial at the Hamshire Assizes on 24th November, 1947. The prosecution explained that a crime committed on a British Ship wherever that ship might be, was within the jurisdiction of the British Courts. Witnesses were Called from South Africa. This case by its very unusual circumstances had aroused great interest.

The evidence of blood-stains on the bedding of Miss Gibson’s bunk was dealt with. These stains belonged to group ‘C whereas Camb’s group was ‘A’. It was clear that blood must have come from the injured portions of the body of the deceased. The conclusion was that the girl objected to whatever advances the prisoner was making, that she rang the bell for outside help, that she scratched the prisoner and he throttled her for self preservation.

The cross examination was prolonged and relentless, but Camb faced it boldly. He rigidly stuck to his story that Miss Gibson invited him for asexual intercourse. When the process was in progress she collapsed. He in panic threw her body into the sea. The defence relied mainly on establishing that Miss Gibson suffered from heart disease and so the story of the prisoner could be true.

A contraceptive was found in one of Miss Gibson’s suit cases. The defence counsel made much capital out of this finding. He declared that Miss Gibson could not be a virtuous woman to be in possession of such a thing. But the accused could not give a satisfactory explanation for the severe scratches found on his shoulders. The Judge devoted three hours to his summing up.Most of the props on which the defence relied went down. He declared ‘Camb’s failure to call in the doctor who was close handy or to seek aid from the night watchman who was actually knocking at the door are instances of callous brutality not easy to parallel in the annals of Crime’. At the time he threw the girl into the sea, the Liner was ninety miles off of the West Coast of Africa in a shark infested sea.

Camb was sentenced to death. But he was lucky. At that time theParliament was discussing the Criminal Justice Bill, containing a clause suspending the death penalty, for five years. James Camb was sentenced to penal servitude for life, pending the Criminal Justice Bill becoming law.

HYPOTHECATION OF MOVEABLES

(Philip K. Thayil B.A., M.L., Advocate Ernakulam)

Introduction

“Hypothecation” says Sir Rashbehary Ghose “is, no doubt, the most convenient and simplest mode of giving security.” The best type of security according to Salmond is that which combines the most efficient protection of the creditor with the least interference with the rights of the debtor. In this latter aspect the mortgage falls far short of the ideal. Yet in English law mortgage is the most important form of security. In Roman law and in the modern Continental systems based upon it, the place assumed by mortgages in the English system is taken by the lien (hypothec) in its various forms. The Roman mortgage (fiducia) even before the time of Justinian was displaced by the definitely superior simplicity and convenience of the hypothec, vide Buckland Mc Nair, Roman Law and Common Law (2nd) 314.f t. It is interesting to note that the modern continental law has followed not the law of mortgage but the law of hypothec which is the most convenient and simplest mode of giving security. The prominence of mortgage as the most important form of security is a peculiarity of English and Indian law. The complexity and difficulty of the English law of security is according to Salmond entirely due to the adoption of the system of mortgage as distinguished from hypothec. Although hypothecation is the most convenient and simplest form of security, there is no statutory provision for hypothecation of moveable’s in India.

It is to be regretted that hypothecation of moveable’s is a subject on which the Indian Contract Act and the Transfer of Property Act are wholly silent. Someday, we can trust, the Indian Legislature will have leisure to take the question in hand and give us an Act which will deserve a better fate than the Bills of Sale Acts of England. The purpose of this article is to deal with the history and certain incidents of hypothecation of moveable’s for which despite the fact that hypothecation is the most convenient and simplest form of security. There is no statutory provision in India.

Origin and History of hypothecation:-

The history of what the law has been is necessary to the knowledge of what the law is. The oldest type of security of the Romans was the Fiducia which consisted in the formal transfer by the debtor of the ownership of his property to the creditor. This transfer was however subject to the condition that the creditor should recovery the property on due payment of the debt. On non-payment of the debt at the appointed time, the debtor not only was liable to forfeit his property, however valuable, but he also placed himself completely at the mercy of his creditor who might sell or otherwise alienate the property to a stranger. In this transaction the debtor had no personal liability. Another drawback of the Fiducia was that certain kinds of property could not be transferred by anticipation or in jure cessio, the only modes by which Fiducia could be created in Roman law. Hence a new mode of giving security had to grow up. This was the Pignus in which unlike the Fiducia there was a transfer not of the ownership but simply of the possession of the thing by the debtor to his creditor. The creditor could neither sell the pledged goods for the purpose of realizing his dues nor become its owner if the debt was not repaid. He could only put a pressure on the will of pledgor who could not get back the property into his possession without fulfilling his engagement. Another draw back of the Pignus was that the debtor might find it inconvenient or practically impossible to part with possession of his property or the creditor might be reluctant to burden himself with the custody of the pledge. So the Roman lawyers had to find out a more suitable method of giving security and they found what they wanted ready to their hands in the Greek Hypothec. Thus Hypothec is of Greek parentage adopted by’ the Roman lawyers. In this form of pledge, the debtor did not part either with the possession or the ownership of the property but simply agreed to hold his property as security for the fulfillment of his engagement.

When the owners of large estates began to let out their lands for the purpose of cultivation they felt that they should have some security for their rent. The cultivator generally had only his farming stock as his property and they could not for obvious reasons be made over to the landlord in a Pignus nor transferred to him as in a Eiducia which was applicable only to certain kinds of property. A change in the law was therefore effected by the exercise of the Praetorian jurisdiction and Praetor Salvius allowed the validity of the pledge of his farming stock by the cultivator for the rent by a single agreement to that effect. Unlike the Pignus the tenant was not obliged to part with the possession of his property, but the landlord was invested with a right in ram which enabled him to vindicate his possessory right to the pledge not only against the tenant but also against strangers by the Interdictor Salvianum. This hypothec which was originally regarded merely as a deferred or suspended pledge appropriate in the case of contingent liabilities as rent due from a lessee soon became very popular owing t’b its extreme simplicity. The next step in the evolution was the extension of this form of security to every kind of engagement, the pledgee being allowed to enforce his right to the pledge against the world at large in the form of action, Quasi Serveanum. The last and greatest step was taken when the pledgee was invested with the right of sale. This idea was borrowed from the practice of the State to sell lands pledged to the public treasury.

What is hypothecation of moveable’s:-”A transaction intended to be a security over chattels in which there are no words of transfer and where the possession remains with the borrower will therefore amount to an equitable charge which is generally known as hypothecation”- vide Tannan Banking Law & Practice in India 5th Edn. P. 300. It may be remembered that hypothec is a form of giving security in which the debtor did not part with the possession or the ownership of the property. So hypothecation of moveable’s is giving security of moveable’s without giving possession of the moveable’s, (i. e.) a pledge without possession. Pledge is the bailment of goods as security for the payment of a debt or performance of a promise and hence delivery of possession of the moveable pledged is essential for it. “There can be no pledge in goods unless there is an actual delivery of the goods. A loan, however, may be secured by a hypothecation of goods. Such a transaction does not require delivery of goods for its validity nor can it be said to be prohibited by the Contract Act merely because the Act contains provisions for bailment of pledges and none for hypothecation of goods”, vide Pollock and Mulla, Indian Contract Act 1957 Ed: P. 600. Hypothecation recognized by Haripada V. Anathi Nath Dey. (1918) 22 C.W.N.758, 44 I.C. 211 Holden P.249. 

‘Hypothecation is defined by J. Milnes Holden (P.223), in his Securities for Banker’s Advances as a legal transaction whereby goods may be made available as security for a debt without transferring either the property or the possession to the lender. The term Hypothecation, the origin of which in English law is discussed by Professor Gutteridge, O.P. Cit P.75 is sometimes used to denote the creation of a charge by the customer over the documents and the goods representing them, vide A. G. Davis’ Law Relating to commercial Letter of Credit P. 169. Lord Chorley in his Law of Banking 3rd Edn P. 237 says as follows about hypothecation. “It is necessary, however, to notice here a type of security which is in effect an agreement to pledge, of which considerable use is now being made-When the customer is obtaining regular finance from his banker by way of acceptance by the latter of drafts drawn upon him by sellers of merchandise imported by the customer, it is usual for the customer, to make an agreement with the banker under which all property of his which may from time to time come into the hands of the banker, or alternatively specified property is, declared to be charged, for the repayment of the amount of such acceptances. This agreement takes the form of a letter to the banker signed by the customer, which is called a letter of lien or sometimes of hypothecation An owner remaining in possession cannot effectively pledge, though he may undertake to give up possession on demand. Such a promise to give possession as security is called a hypothecation “. Lord Chorley opines that hypothecation has never become a term of art in English law and that is used by business people with a somewhat loose connotation, for instance the memorandum accompanying a pledge of documents of title to goods, by which the pledger authorizes the pledgee to dispose of the goods in the event of his failing to discharge his obligation is commonly called a letter of hypothecation. Milne Holden also holds the same view.

Special Advantages of hypothecation; -

Here the borrower (pledge) can continue to possess the things hypothecated. He need not part with possession. His possession as owner is by hypothecation converted into that of a bailee from the pledgee, the lender. This form of security causes the least inconvenience to the borrower and the lender The borrower can with the previous consent of the lender (bank,) from time to time sell or dispose of the goods hypothecated or any part thereof provided the advance value of such goods is paid into the said account or goods of a similar nature to those mentioned in the schedule and of at least value are substituted for the goods so sold after the approval of the bank (lender) obtained in writing. The borrower can create charge even on, future goods, a charge on the goods to be brought into the go down. Borrower cannot pledge future goods as he has to give actual possession for pledge. The business of the merchant borrower is not hampered he delivery of possession of the goods. This form of security causes the least interference with the rights and business of the borrower merchant. The hypothecated goods continue to be the absolute property of the borrowers at the sole disposal of the borrowers. If a customer is in posses¬sion then he will normally be able to pass that possession to his banker. However, in some instances it is quite impossible for a banker to be given the actual or constructive possession of goods and it is in these cases that the possibility of hypothecating them must be considered. For example the goods may be temporarily in the possession of third parties; or it may be that the goods are in a part of the customer’s own warehouse which cannot be sealed off in such a way as to enable the banker to become a pledgee. The borrower creates charge even on the goods which have not come to his possession. Goods hypothecated are delivered by the borrowers to the buyers and the moneys, when realized are paid to the bank, usually after a period of a week or two. The borrowers usually pay up the bank’s dues in preference to all other liabilities because of the fear of criminal liability. The borrowers being generally merchants and being in possession of the hypothecated goods can sell them for the best price in the market to the buyers of borrower’s own choice. On the other hand if the lender bank is in possession and the banker is selling tie best price may not often be available.

Advantage to Banker- Realization of the goods is generally left to the customer, who for one thing is better acquainted than the banker with the particular market in which the goods are dealt in and who. moreover, does not wish to disclose to purchasers from him that his business is being financed by the bank. But, for the purpose of realization, the customer requires the documents of title. If the banker delivers them to him, then the banker would lose his charge and in the event of his customer’s insolvency supervening, would be in the position of an ordinary unsecured creditor. To overcome this difficulty the mercantile genius has evolved what is known as “letter of hypothecation”, “letter of lien” or “letter of trust” and “trust receipt”. The letter of trust evidences the agreement reached between the banker and his customer, buyer the agreement being, on the banker’s part, to hand the document of title to the customer, so that he may obtain delivery of the goods and thus be in a position to deliver them to sub-purchasers; and on the customer’s part, to hold the docu¬ments, the goods when received, and the proceeds thereof when sold, on behalf of the banker. The common form of letter of trust states that the customer agrees to act as trustee for the bank. But by the agreement evidenced by the letter of trust the customer does not become trustee in the commonly accepted meaning of that term as the banker does not divest himself thereby of the property which he has in the goods. The relationship as A. G. Davis says is partly bailment, partly agency and partly trust.

Bankers generally do not have the facility for storing merchandise, which an extensive use of this type of security would entail, while realization might be difficult. Apart from goods of great intrinsic value, such as jewellery, pledges of goods are not favored. When the customer is obtaining regular finance from his banker by way of acceptance by the latter of drafts drawn upon him by feeders of merchandise imported by the customer, it is usual for the customer to make an agreement with the banker under which all property of his which may from time to time come into the hands of the banker, or alternatively, specified property is declared to be charged for the repayment of the amount of such acceptances. This agreement takes the form of a letter of lien or letter of hypothecation.

The right of sale and recoupment is given to the banker. It arises on default. Notice of the intention to sell must be given to the debtor so that he may have a final opportunity to discharge his debt.

The good, according to the terms of hypothecation will be kept insured by the borrower. If the goods are subject to considerable price fluctuation the banker will naturally watch the market price very closely and require the customer to maintain an adequate margin. 

Very often bankers cannot keep under lock and key the produce pledged to them. This is all the more so when the produce is in the period of industrial process. Banks therefore have to accept such stocks as security by way of hypothecation only instead of the usual pledge if they desire to finance the business. Hypothecations occur mainly in the case of industrial processes such as rice hulling, flour milling, groundnut decorticating, oil milling, cotton ginning and pressing, sugarcane crushing, and coffee curing. During these processes pledge is impossible. In the case of limited companies the charge on goods hypothecated to the bank is registered with the Registrar of joint stock companies and this serves as sufficient notice to the public of the Bank’s interest in the goods.

The lender bank can keep his sign board displayed prominently on the premises where the hypothecated goods are stored. This sign board will serve as a notice to the public about the bank’s interest in the stocks. If the volume of the business warrants, a chowkidar with bank’s uniform and badge may be stationed at the premises. If any one of these precautions will make the hypothecated goods cease to be in the order and disposition of the borrower then the reputed ownership clause in the Insolvency Act will be repelled.

The borrowers can sell only with the previous consent of the bank in writing. Goods are delivered by the borrowers to the buyers and the moneys when realized, are paid to the bank. Borrowers take care to see at the time of the submission of periodical statements of stocks that the position of the account is in order. Though the business is risky, in actual practice the borrowers usually pay up the bank’s dues in perference to all other liabilities because of the fear of criminal liability. The banker is entitled by the terms of the hypothecation, to enter upon any godowns or premises wherein the hypothecated goods or any part thereof may for the time being be and to view, inspect and value the same and take inventories thereof or to take possession thereof. The hypothecation agreement gives the bank absolute authority to take possession of the goods under hypothecation and deal with them without any fear of consequences. Without notice to the borrowers the bank and their officers can enter and remain at any place where the hypothecated goods shall be and take possession «of, recover and receive the same or appoint any officer of the Bank as receiver of the hypothecated goods or sell by public auction or private contract or otherwise dispose of or deal with all or any part of the hypothecated goods. In the case of pledges even though the need for notice is waived the notice as a matter of prudence is given. In the case of hypothecation demand notice cannot be given beforehand because the possession is with the borrower and he can deal with the security in any manner he pleases before the expiry of the time stipulated by the banker in the demand notice for repayment of the advance. The borrower according to the terms of hypothecation remains liable for a short fall in the event of a forced sale. The bank is by the hypothecation deed irrevocably appointed the agent of the borrower with full powers regarding the disposal of the goods so that whatever action has to be taken the bank could do it without any further reference to the owner.

Disadvantages to the lender:-Possession and property in the goods remains with the borrower and only an equitable charge is created in favour of the lender. This is unsatisfactory position for the banker as he cannot have a preferential claim in the event of the insolvency of the borrower or in case of an attachment of the hypothecated goods by another creditor or if the goods are pledged by the borrower to a third party who has no notice of the hypothecation to the banker. It may be noted here that these open loan facilities are extended only to people of established reputation, and the fear of a criminal prosecution has indeed a deterrent effect even on somewhat dishonest borrower.

Open loans in favour of private individuals or a sole property concern are not very safe because in these cases the borrower alone knows what he is doing and no one else is interested in keeping a check over him as in the case of limited companies or partnership firms. Books of account as well as business dealings are kept secret and so banks have to depend mainly on the periodical statements submitted by the borrower. There is the possibility of the hypothecated goods completely disappearing over night if the borrower is thus minded. So it is better for the banker creditor to insist upon some collateral security in order to guard against such unhappy contingencies

Very often there is no possibility of goods hypothecated to bank being stored in a compact place and they may in the process of manufacture etc., be distributed in several places.

The banker has, in advances of this nature, to trust the borrower to a very large extent and depend on the books maintained and the stock statements submitted by him. A strict valuation as in the case of pledge is impossible in the case of hypothecation since the stock change vary frequently.

A purchaser in good faith of the hypothecated goods can defeat the previous creditor in whose favour the hypothecation was created. Even a subsequent pledge in good faith can defeat a prior hypothecation. So, the legislature must invent the key to unlock this problem. The Bills of Sale Acts of England are intended to solve this problem. A bill of sale, in its ordinary popular meaning is a document whereby the legal property in chattels is transferred to a person who lends money upon the security thereof when the possession does not pass; but the term “bill of sale” properly denotes any instrument whereby the property in chattels is transferred, whether absolutely or by way of mortgage. By a mortgage bill of sale ownership is transferred without possession. This ownership is mainly a right to seize. As H. G. Hanbury and C.H.M. Waldock opine a demon of clumsiness and ambiguity has beset the drafting of the Acts. As Lindely LjJ.said the legislature were aiming at rendering it compulsory on lenders of money on the security of goods & chattels to register their securities. A legislative venture without the pitfalls-and ambiguities of the Bills of Sale Act is indeed a desideratum in India. (All Rights Reserved)

Justice V.P. Gopalan Nambiyar

(K.S. Rajamony)

The best tribute to a retiring Judge will be to hold a mirror to the judgements he has handed down during the tenure of his office and to make an objective assessment of his contribution to juristic thought and the growth of the law. It is difficult to evaluate the contribution of Justice Nambiyar objectively in such close proximity to his retirement. The difficulty is aggravated by the fact that he dominated the judicial stage for 15 years and has delivered innumerable judgements in all branches of law. What is possible is only to select a few of his judgements which are indicative of his judicial attitudes and qualities The present day Indian judges are working under various handicaps. They function in courts overloaded with work, painfully conscious of the mounting arrears. Naturally therefore Judges favour expedition to excellence. Added to this is the lack of adequate research assistance either from Bar Associations or academicians. Notwithstanding these handicaps, Justice Nambiyar kept up a high standard in the quality of his judgments. They were marked by clarity of thought and expression, an elegant and facile style and a rigorous legalistic approach with due reverence for precedents. His judgements contained clear formulation of legal principles without unnecessary digressions. He seldom travelled beyond the framework of the case before him. Judicial restraint and'judicial humility were two of his outstanding virtues. He expounded the law but left reforms to the legislature. In this sense he was not a judicial activist. He was slow in invalidating legislative provisions and wherever possible applied the presumption of constitutional validity of legislative action His attitude was one of deference to the collective wisdom of the Legislature. Many of his judgements recalled what Justice Mathew said in Ambika Mill's case (AIR. 1974 SC. 1300) "Courts have the power to destroy, not to reconstruct." This outlook sometimes gave the impression that he was somewhat conservative and orthodox in his judicial opinions. But an objective review of his judgements reveals that when he was convinced of the ultra" vires nature of a statute or that there was abuse of power, he could come down heavily and strike down the law or quash the administrative action with a pungency of language which could be devastating as in P.K. Kunju's case. His insistence on adherence to procedural formalities, though at times gave the impression that he was over technical in his approach, really arose out of his conviction that procedural laws are meant to be obeyed and constitute the handmaid of justice. For example, he said in a recent decision, "While we are at one with the learned Judge that courts of law are there to do justice, we cannot countenance their breaking the cordon of procedural shackles." (1980 KLT 186).

Francis Manjooran v. Government of Kerala (1965 KLT. 1076 FB) was one of the earliest cases decided by Nambiyar J sitting along .with M. S. Menon, C. J. and Raman Nair J. This was an interesting case where applications filed by some doctors for passports for going abroad to take up employment were rejected by Government of India on the ground that medical talents in the country should not be drained. The law relating to passports at that time was somewhat odd. According to the Passports Act, 1950 no passport was needed for a person to go out of India, but he could not re-enter this country without a passport The question that arose was whether right to travel abroad was part of the 'personal liberty' envisaged in Article 21 which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. All the three judges unanimously held that the denial of passport offended Article 21. but wrote separate judgements. They vied with one another in expounding the concept of personal " liberty and the ambit and content of Article 21. It has to be remembered "that this important constitutional issue was res Integra then and the Supreme Court had not spoken on the point. MS. Menon CJ's judgement was a brilliant piece of legal literature studded with quotations ranging from Black-stone to Ivor Jennings and a historical survey of the origin and growth of the passport system. Nambiyar J's. concurrent judgement delivered within a few months of his elevation to the Bench, is characterised by his usual felicity of expression and originality of thought. He gave a textbook analysis of Article 21 and the decisions bearing thereon which was reminiscent of the technique he used to adopt as a successful law teacher (The writer was his student in the Madras Law College). He concluded: "Giving the matter my careful consideration I am of the view that the fundamental right to 'personal liberty' in Article 21 includes the right to cross the frontiers and to re enter the country." This proposition was later confirmed by the Supreme Court in Satwant Singh's case (AIR 1967 SC 1836) which again was emphatically reaffirmed in Maneka Gandhi's case (AIR 1978 SC 597). According to Maneka Gandhi, an arbitrary denial of passport can offend not only Article 21 but also other fundamental freedoms like Art. 19 (1) (a) if the object of the applicant for passport is to make a speech abroad or Article 19 (1) (g) where his object in going abroad is to practise a profession or carry on a trade or business.

Justice Nambiyar's judgements on natural justice are particularly noteworthy. In Damodaran Nair v. District Collector (1969 KLT 283) he quashed the Collector's order cancelling a gun licence issued under the Arms Act, 1959 on the ground that the show cause notice itself was illusory in not disclosing the grounds of the proposed action and that the District Collector's conclusion that it was not in the interest of public peace and safety to allow the petitioner to keep the gun, lacked materials. The right to hold a gun on the strength of a licence was held to be a fundamental right to hold property.

Abuse of power by people in high places provoked a scathing judgement from Nambiyar's J. P. K Kunju v. State of Kerala (1970 KLT 77). The Division Bench consisting of Nambiyar and Eradi JJ. Quashed an order of Government constituting a Commission of Enquiry to go into certain allegations made on the floor of the Assembly against the then Finance Minister P. K. Kunju. The order was held to be vitiated by malafides and colourable exercise of power. He said that power should be exercised by a public functionary only for the purpose for which it is conferred on him by law. If it is exercised for an unauthorised or oblique purpose, the action will be vitiated. After discussing the evidence regarding malafides, Justice Nambiyar said: "On all the facts and circumstances placed before us we feel that this was a mere ruse to drop the petitioner from the Ministry and that the dominant object of ordering enquiry against him was not to maintain the purity and integrity of administration."

Justice Nambiyar's approach to Natural Justice was however pragmatic and justice-oriented. In cases of disciplinary action against students, he seldom interfered if the procedure adopted by the University satisfied the judicial conscience that a fair opportunity had been afforded to the student to defend himself and justice had been done. For instance, in Jacob Mathew v. Prof., Medical College (1966 KLT 866) the learned Judge held that admitting a previously recorded statement in evidence did not vitiate the enquiry if the student was given the opportunity to cross-examine the witness.

Principal, Engineering College v. John (1979 KLT 686) was a case where disciplinary action was taken by the Principal against a student for ragging. An enquiry was conducted by two professors of the college. Victims of ragging were examined in the presence of a student and were cross-examined by him. The College Council accepted the enquiry report and expelled the student from the college hostel and suspended him till the next semester. The College Council took the decision on the basis of the enquiry report and 'other evidence'.The question was whether this reference to 'other evidence' offended principles of natural justice. There was neither pleading nor proof or any indication in the files to show that the 'other evidence' referred to some undisclosed and secret evidence. The Division Bench consisting of Nambiyar CJ. and Balaganadharan Nair J. held that the enquiry was fair and there was substantial compliance with natural justice. It was held that courts should be slow to interfere with decisions of domestic tribunals appointed by educational bodies like the Universities. In Hira Nath's case (AIR 1973 SC 1260) where some male students were charged with indecent behaviour towards the inmates of a girls' hostel, the Supreme Court went to the extent of holding that in an enquiry held on such charges, rules of natural justice did not require that the state­ments of girl students should be recorded in the presence of the male students concerned, or that they should be furnished with the report of the enquiry committee. In Madhavan Pillai v. Balan (1979 KLT 220 FB), it was argued that in a case where the management itself was the accuser and prosecutor it was not competent to conduct an enquiry into the misconduct of a private college teacher because the rule of natural justice demanded that no one should be a judge in his own cause. Counsel said that Statute 101(c) of the University should be read down so as to conform to that fundamental principle of natural justice. The Full Bench rejected this contention. Nambiyar CJ. Who delivered the judgment held that if a statutory provision excluded the application of any rule of natural justice the court cannot ignore the mandate of the Legislature and read into the concerned provision the rule that it so excluded. The importation of the rule of natural justice would lead to evisceration of the very statutory provision. It was laid down in this case that the principle of natural justice that no man shall be a judge in his own cause cannot prevail against an express statutory provision or a consensual term. Similarly in State of Kerala v. M.C. Joseph (1975 KLT. 551) Nambiyar J. held that principles of natural justice cannot avail against an express contractual term entered into by agreement or consensus of the parties providing that Government, one of the contracting parties, could decide for itself the dispute arising from the contract. The same principle was laid down by Nambiyar CJ. in State of Kerala v. Govindan Nair (1980 KLT. 186) where it was held that a clause in a lease agreement conferring power on Government to decide finally the amount due from the lessee was not penal in nature or in terroram.

Nambiyar J. has handed down a number of judgements on Fundamental Rights. The Rice & Paddy (Procurement by Levy) Order 1966 defined cultivator as one who actually puts his hand to the plough to the soil. It seemed immaterial whether he had any proprietory or beneficial interest in the land. It meant that even a servant or labourer of an owner of land, could be regarded as cultivator to be dealt with under the provisions of the Order. Nambiyar J. held in Narayana Panikkar v. District Supply Officer (1968 KLT. 223) that the definition was artificial and arbitrary and offended Art. 14 and as the same was inextricably woven throughout the texture of the Levy Order, the entire Order was affected by the vice of the definition. He said: "In the absence of a satisfactory legislative definition of the term, its nuances and limitations are not matters to be supplied by judicial interpretation or judicial ingenuity. Much the less are they to be left to be evolved according to the vagaries of the executive officers entrusted with powers under the Levy Order. This recalls to mind the observation of the Supreme Court in State of A. P. v. Raja Reddy (AIR. 1967 SC. 1458) that "official arbitrariness is more subversive of the doctrine of equality than statutory discrimination."

In Azhakiya Nambiapillai v. State of Kerala (1968 KLT 27) the learned judge quashed an order of Government allowing Co-operative Societies to continue as wholesale distributors under the Kerala Rationing Order, 1966 while terminating the appointments of individual distributors as violative of Art. 14. A classification of distributors into Co-operative Societies and other individuals in the matter of termination of their appointments was held to be irrational and not based on intelligible differentia. However Clause 51A of the. Rationing Order which permitted preference to a Co-operative Society in the matter of appointment of distributors was" upheld. A later Division Bench followed this decision in 1976 KLT. 54.

In Krishnan Thangal v. Stale of Kerala (1971 KLT. 948 FB.) Nambiyar J. held that the demand, levy and collection of a tax under the Kerala Land Tax Act 1961 were unauthorised and illegal as no authority had been specified by S. 5 of that Act to levy the tax. But by a majority (M. M. Nair & Nambiyar JJ. concurring and Krishnamoorthy J. dissenting) the constitutional validity of the Act was upheld Nambiyar J. did not subscribe to the proposition that a taxing statute can be condemned as confiscatory on account of the harshness and severity of its provisions. A similar view was taken by him on the Kerala Building Tax Act, 1975 in Sundaribai v. State of Kerala (1978 KLT. 931) which was affirmed by the Supreme Court on appeal. In' Baby George v. State of Kerala (4973 KLT. 1009) appointment of Government Pleaders in the High Court by selection without inviting applications was held not to offend Art. 16.

In Sister Lewina v. Lilly Kurien (1973 KLT. 634) a Division Bench consisting of Nambiyar and Viswanatha Iyer JJ. held that the provision in the University Ordinance 33 providing a right of appeal to the Vice Chancellor against disciplinary action did not violate Art. 30(1). But the Vice Chancellor was held not to have the power to order reinstatement. Nambiyar J. said: "It cannot be said that a subordinate body such as the Syndicate intended to confer so far reaching a power on a statutory tribunal by so furtive a process. This in effect amounts to eviscerating the right of appeal to the Vice Chancellor but the remedy does not lie in our hands." But the Supreme Court took a different view in appeal (1978 KLT. 723) and held that the power to reinstate is incidental to and is implied in the power to hear an appeal. The Supreme Court however struck down Ordinance 33 (4) providing appeal to the Vice Chancellor on the ground that the conferral of such wide powers on the Vice Chancellor amounted in reality to fetter the right of administration under Art. 30 (1).

In the Full Bench decision in Sadanandan v. Raghava Kurup (1974 KLT. 650) the court examined the grounds on which a writ of habeas corpus could issue under Art.226 interfering with parental right over children. Nambiyar J. said relying on AIR. 1964 SC. 1625 that the proceedings are discretionary, a preliminary enquiry is open and that although the writ is of right it does not issue as a matter of course. Refusing the writ in that case to the petitioner who claimed to have married the third respondent and demanded her custody from her parents. Nambiyar J. observed: "In this region, where, at best, we see the picture of a woman subjected to the pulls and pressures of marital (or, may be extra marital) attachment on the one side and parental affection or guidance on the other, taking into due account the rights and responsibilities which nature entrusted to parents in regard to their children, we are not satisfied that any case of illegal detention or custody which calls for redress under Art. 226 stands made out."

Sitting in a Full Bench in Benedict Mar Gregorios v. State of Kerala (1976 KLT 458) Nambiyar J. examined the constitutional validity of the various provisions of the Kerala University Act, 1974.

In Padmanabhan v. State of Kerala (1977 KLT. 916) a Division Bench refused a writ of quo warranto against the appointment of an Additional Advocate General for the State. Nambiyar J. said: "Maybe, such appointments may provoke unseemly scrambles or conflicts or clashes in the discharge of functions. These however are not insurmountable and may be left to resolve themselves by adjustments of human relationship by development of healthy conventions or by delineation by rules and instructions. The provisions of the rules framed under Art. 165 (2) & (3) persuade us to hold that in actual practice it is possible to secure a smooth and harmonious functioning of two incumbents in the same office."

In Mayer Simon v. Advocate General (1975 KLT. 78) a Bench of five judges quashed an order passed by the Advocate General refusing for filing a suit under S. 92 (1) CPC. In agreeing with the conclusion of Govindan Nair CJ. Who wrote the leading judgement, Nambiyar J. in his separate concurring judgment travelled through a different route to reach the same conclusion. He found that the Advocate General's order was so laconic as not to indicate any application of the mind to the considerations to which he was required to bestow attention. He allowed the O. P. on that short ground.

In Pulomaja Devi v. Gopinathan Nair (1975 KLT 111) (FB), the modus operandi of making a selection of magistrates on the basis of Rules 14 and 17 of the KSSR. Which lay down the principle of communal reservation by rotation 5-nd sub-rotation, was examined. Two different modes of working out the principle were reasonable where the selections had to alternate between the merit pool and the reserved quota.Nambiyar and Bhaskaran JJ. held that the mode adopted by the PSC. was the right one to which Chandrasekhara Menon J. dissented. But the judges unanimously held that where two modes are plausible and one of them adopted by PSC, courts should not interfere under Art. 226.

The above judgements are by no means exhaustive of Justice Nambiyar's best judgements. But they indicate with sufficient conviction that Justice Nambiyar was one of the ablest judges of the Kerala High Court and his judgements would well provide an inspiring model for future generation of judges.

The Holy Qur'an provides:—

"...............If a husband divorces his wife (irrevocably) he cannot, after that, remarry her until after she has married another husband and he has divorced her. In that case there is no blame on either of them if they re-unite, provided they feel that they can keep the limits ordained by God., Such are the limits ordained by God, which He makes plain to those who understand". (Chapter II, Verse 230).

One of the traditions cited in "Sahih Muslim", Imam Muslim's compilation of the traditions, dealing with this subject is quoted below:—

"Aisha (Allah be pleased with her) reported: A person divorced his wife by three pronouncements, then another person married her and he also divorced ber without having sexual intercourse with her. Then the first husband of her intended to remarry her......about such a case............Allah's Messenger (may peace be upon him)............ 1. said: Nountil the Second one has tasted her sweetness as the first one had tasted": (See "The Book of Marriage" in "Sahih Muslim").

Moulana Abdul Hamid Siddiqi in his English commentary on "SAHIH MUSLIM" explains the scope of these traditions as follows:—

"In these AHADITH we find a burial of the un-Islamic practice in regard to conjugal relationship. It was a sort of custom with the Pre-Islamic Arabia that they in order to torture their wives discarded them and took them back at their will.......Islam gave a death blow to this evil by imposing a limit on the right of the husband to divorcehis wife.........It means that divorce is not a plaything but something very serious; and thus no one is allowed to disturb the conjugal relations on whim and caprice. The husband should think hundred and one times before making the final decision and even the period allowed to him for decision is fairly long extending over three months. If, however, the parties agree to part with each other for the third time, then it is an irrevocable parting............Then there are very remote chances of the resumption of conjugal rights. The only chance is that the Second marriage also proves a failure and the second husband, out of his own will and not under presure, divorces the wife and the first husband with the willingness of his former wife is prepared to marry her again. Shah Waliullah, while explaining the significance of this injunction, has stated that the idea behind this command is that people should not take the institution of marriage and divorce as a mere plaything. They should be fully aware of their responsibilities in these important matters of life": (See Volume 2, Page 730; also K. P. Saksena 'Muslim Law" 4th Edition, P. 190).

A second marriage in violation of the above injunctions is void under Shiite law. The two disciples of Imam Abu Haneefa: Imam Abu Yusuf and Imam Abu Muhammad and also Imam Shafie also hold that such a marriage contract is void: (See Charles Hamilton: "The Hedaya", 1979 Edition P. 108). Thus, the parties who contract such marriages are guilty of fornication.

It is not clear from the reported decision whether the parties in Khadissa's Case are Shafies or Hanafies.

Even if the parties are Hanafies and Imam Abu Haneefa has observed that such marriages are irregular; not void, the courts have a discretion to follow the opinion of Imam Abu Yusuf and Imam Muhammad (See Tyabji, P. 38); and in the light of the prohibitory injunctions of the Holy Qur'an and the traditions and the circumstances under which those injunctions were revealed it is to be found that their opinion is correct and hence that should be followed.

It is unfortunate that the above aspects of the Islamic Law were not brought to the notice of the learned Justice.

The learned Justice has also made certain passing remarks in the judgment on standards of morality:—

"As for immorality, what is immoral has to be judged by the current standards of morality of the community. What was apparently regarded with pious horror in good old days would "today hardly draw a raised eyebrow or even a gentle tut-tut. The wife in this case had at no time a husband other than the respondent. I do but whether in the present day Indian Muslim Society such a woman who was her previous husband and who has married her a Second time can on account of such cohabitation be said to be immoral merely because the Second marriage is technically invalid in the eye of law. I am conscious that by leaving that matter at that, I am leaving it unsolved and open for discussion in the future, but that is inevitable in the development of law".

It is submitted with respect, that these remarks create an impression "that the Muslim community of the present time has restored the sex relations of the Pre-Islamic Arabia. It must be remembered that any standard of morality that is against the injunction of the Holy Qur'an and the traditions will be rejected outright by the Muslim Community. The learned Justice has not properly appreciated the Islamic conception of morality. "The sacred law of Islam as pointed out by JOSEPH SCHACHT in his book, "An introduction to Islamic Law" in Page 1. is an all-embracing body of religious duties, the totality of Allah's commands that regulate the life of every Muslim in all its aspects". The Muslims believe that the Holy Qur'an. in its 114 Chapters, embodies the final expression of God's will and purpose for man. The standard of morality of the Muslim community is an integral part of the religion and as such the question of change or reform does not arise at all.

As regards the second question, it was contended by the husband that since the second marriage was invalid, then the husband by such second marriage was no better than a stranger and so the wife had to be taken as having led an immoral life when she lived with him for about four months after the first divorce and the child begotten during that period had to be taken as illegitimate. It was, therefore, argued that the woman was not entitled to claim maintenance under Sub-section (4) of S. 125 of the Criminal Procedure Code.

"Chapter IX of the Code, which contains Ss. 125 to 128, deals with order for maintenance of wives, children and parents. Explanation (b) to S. 125(1) provides that for the purpose of this chapter "wife" includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. It is by virtue of this explanation that an ex-wife is entitled to claim maintenance from her erstwhile husband."

Under sub-sections (4) &(5) of S. 125 a wife who is living in "adultery" is not entitled to claim maintenance. Explanation (b) shall be regarded as a part of these Sub-sections also, since the language used in the statute is clear and unambigous, and therefore, on proof that an ex-wife is leading an immoral life her claim for maintenance is to be disallowed. This was the view taken by a Division Bench of the High Court, speaking through Khalid, J. in Kunhi Moyin v. Pathumma, 1976 KLT. 87. But, this decision has been overruled in Mariyumma v. Mohammed 1978 KLT. 573. The Full Bench, speaking through Mr. Justice P. Subramonian Poti, relying on the word "adultery" used in Sub-Ss. (4) and (5) of S. 125 held that the above Explanation is not applicable to those Sub-sections and so, the fact that an ex-wife is living in immorality is no ground for refusing maintenance from heir erstwhile husband. The learned Justices observe".....................A woman whose marital tie does not subsist cannot be guilty of adultery, for, adultery is a term that denotes an offence against the institution of marriage. The inclusive definition of the term "wife" will not be sufficient to read promiscuous or immoral living of a divorced woman as of one living in adultery".

This decision was followed in Khadissa's case in which it is held as follows:-"...............Maintenance was disallowed to the wife on account of her leading an immoral life. The Judge in doing that had evidently the provision in S. 125(4) of the Code in view For the provision to apply the wife should be living in adultery. If the second marriage was invalid then after the dissolution of the first marriage the wife should be taken as not having a husband at the time and her cohabitation with any man during that period cannot be termed adultery, as held in Mariyumma v. Mohammed Ibrahim, 1978 KLT. 573. So the Provision in S. 125(4) cannot be applied for refusing maintenance to the wife."

It is submitted, with respect, that the above decisions are not correct. In view of Explanation (b) to S. 125(1) the word "adultery" used in Subsections (4) and (5), in so far as they apply to ex-wives, has to be given a modified meaning. Maxwell observes:—"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the Legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning:" (Maxwell on the Interpretation of Statutes, 12th Edition P. 228).

In the light of the Explanation (b), the meaning of the words used in sub-sections (4) and (5) of S. 125 has to be modified to the effect that no woman who has been divorced by, or has obtained a divorce from her husband, and has not remarried, shall be entitled to receive an allowance from her erstwhile husband, if she is living in unlawful sexual relation and on proof that any such woman in whose favour an order has been made under the Section is living in unlawful sexual relation, the Magistrate shall cancel the order. If this was not the intention of the legislature, the words "for the purpose of this Chapter" would not have been inserted in the Section. When judged by the above submissions, the wife in Khadissa v Muhammed, who is guilty of fornication, is not entitled to any maintenance. It is absurd to believe that the Legislature would have intended to give protection to such women by enacting S. 125.

It is most respectfuly submitted that the above decisions require reconsideration.