Thursday, July 28, 2011

“THE LIMITATION ACT, 1963, VIS-A-VIS SECTION 22 OF THE HINDU SUCCESSION ACT, 1956” by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad

In this legal notes, I wish to critically examine the legal provisions of the Limitation Act, 1963 (hereinafter referred to as ‘LT Act’ in this regard) which are applicable in bringing forwards a suit and/or an application by a Class I Legal Hair for claiming the legal right to acquire any interest in immovable property under Pre-Emptive/Preferential Rights given in S. 22 of the Hindu Succession Act, 1956 (hereinafter referring to as ‘The Act’ in this regard) from any other Class 1 legal heirs of the Joint Hindu Family who are intested in transferring their shares in such property not to the claimant but to outside purchasers.
  The full text of S.22 is as follows:-
Section 22 Preferential Right to Acquire Property in Certain Cases:
1)  Where, after the commencement of the Act, an interest in any immovable property of an intestate, or in any business can on by him or her, whether solely or in a junction with others, devolves upon two more heirs specified in Class I of the Schedule, and any of the such heirs proposed transfer his or her interest in the property or business, the other heirs, shall have preferential right to acquire the interest proposed to be transferred. 
2)  the consideration for which any interest in the property of the deceased to be transferred under this section shall be absence of any agreement between the parties, be determined by the Court on application being made to it is this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
3) If there are two or more heirs specified in Class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. 
  Explanation : In this section, ‘Court’ means the Court within the limits of whose jurisdiction the immovable property is situate or the business is carried on and includes any other Court which the State Government may, by Notification in the Official Gazette, specify in this behalf. 
I can locate only one ruling of the Calcutta High Court in Tarak Dash Ghosh1 appeal regarding the application of L.T. Act, 1963 to any claim brought under S. 22 of the Act. 
The respondent argued that the application under S. 22 (2) of the Act was filed beyond the period of limitation but the appellant argued that it was not so.2
In the lower Court, the Sub-Judge declared that as “the right given in S. 22 was a right of PRE-EMPTION” he was inclined to apply “Article 97 of L.T. Act, 1963” in giving his order that “the application was filed beyond the period of limitation”3 in dismissing the claim.
But in the 1st appeal, the Dist. Judge has declared that “as it was a preferential right to acquire property in certain4 cases” he has applied “Article 137 of L.T. Act, 1963” to declare that “the application was not filed beyond the period of limitation5 in allowing the appeal.
Hon’ble Justice Sri J.D Chakravarti in High Court confirmed the order of Sub-Judge. his Lordship said that “the right in question is a right of pre-emption when one or several persons on whom an interest in any immovable property devolves on teh death of a person dying intestate as heirs specified in class I and when any one of such heirs proposes to transfer his or her interest in the property, the other heirs are given a preferential right to acquire the interest proposed to be transferred. Here the right in question is one enabling a person to purchase the property in preference to others”6.
Therefore the respondent was successful in his argument that Art. 97 of Lim. Act, 1963 has to be applied to the facts of this case. 
The Sub-Judge applied Art. 977 as “it applies to enforce a right of pre-emption whether the right is founded in law or general usage or on special contract” in coming to his decision. The High court too came to the same opinion. 
Article 97 gives “one year” as the period of limitation in bringing legal claims before Court.
On the other hand, the Dist. Judge “appeared to have been influenced by the Title to S. 22 and thought it was a Preferential Right but not Pre-emptive Right” to go in for Art. 137 in coming8 to his decision.

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CRITICAL COMMENTS ON BENAMI TRANSACTIONS by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad

In this article, I propose to take up a critical examination of the “Law relating to Benami Transactions”. This topic can be discussed with reference to the period both before and after the passage of the Benami Transactions (prohibition) Act, 1988. (hereinafter known as ‘the Act’)
        The Parliament, in the preamble of the Act, declared it to be “an Act to prohibit benami transactions and to prohibit the right to recover property held benami” coupled with the object of delegating powers to the Central Government to frame the relevant rules for carrying out the objectives of the Act.
          An earlier Ordinance was repealed with the passage of the Act. The Ordinance was promulgated to prevent tax evasion and also to curb the circulation of black money through such transactions.
          It appears that the Bill, introduced to replace the Ordinance, was passed through the Parliament in great haste without thoroughly discussing the various provisions that were thought desirable to be incorporated in the Act.
         The Bill was introduced on the recommendations of the Law Commission given in a report submitted to the Government after examining the earlier Ordinance referred to the commission. Finally, the Bill was placed before the Parliament on 31st August, 1988 and was immediately passed.
          The Parliament, when it repealed the Ordinance and replaced it with the Act, though it desirable not only to prohibit the right to recover property held benami but also thought it fit to put an end to the general practice of the public in entering into benami transactions.
           The Legislature adopted a multi-dimensional strategy to put an end to the hitherto widely practice of entering into benami transactions through the stringent provisions of the Act.
          First, the Act specially laid down that, from 5th September, 1988
* Sri Raghu Raman C.S Full-Time Lecture in  Law , 3-6-215 , Pendikanti  Law   college , Himayat Nagar ,  Hyderabad – 500 029. 
1. Received the assent of the President on 5th September , 1988. 
2. See the ‘Preamble’ of the Act.
3. Ref. Sec. 8 of the Act – “power to make rules”.
4. The Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988.
5. Ref. Sec. 9 (1) of the Act.
6. One of the many reasons for the promulgation of the Ordinance – Ref. Para 1.7(c) Chapter 1 of 5th Report of Law Commission, Delhi.
7. 130th report of the Law Commission of India, Delhi
8. Submitted on 14th Augutst, 1988.
9. Referred to the Commission on 22nd July,1988.
10. The Original Ordinance did not contain such general prohibition.

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Kidnapping of child—Prosecution against father /mother by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad

“Kidnapping”, like others kinds of unilateral action in relation    to children, is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best of the interests of the child, leading, in proper cases to the prompt return of the child to his or her own country but not the sacrifice of the child’s welfare to some principle of law”.                                 
In the important case ‘of kidnapping of a child’, The Court of Appeal, while ‘setting aside the conviction of a father for kidnapping his own child’ had referred ‘two most important questions of law of general public importance’ for decision to the House of Lords.
The two certified questions are as follows:
1. Whether the common law offence of kidnapping exists in the case of a child under the age of 14 years? 
2. Whether in any circumstances a parent may be convicted of such offence where the child is unmarried and under the age of majority? 
The facts that were responsible for referring the two questions of law were that MR.D, the respondent-father of a minor child, had kidnapped his own child by forcefully taking away the child from her mother once on 13-12-1978, being the first charge of the offence of kidnapping and again on 6-11-1981, being the second charge brought against the father. The child had already been declared as ‘the ward’ of the Family Court of the High Court on 10. 4.1978.
In his defense, to the first charge, the father had pointed out that, he had a lawful excuse for ‘taking away the child from the mother and out of this country as he believed that the child was an illegal immigrant and therefore could be lawfully be removed’since the child was in England though born in New Zealand,
In the Lower Court, Judge Lymbery ruled that under the common law of England, ‘a father could commit the offence of kidnapping of his own child, even though that child was still a minor’. 
The Jury convicted the respondent on the second charge.
The Court of Appeal quashed his conviction on the reasons that the offence could not be committed by anyone against a child under 14 years of age and the offence could not committed by a parent against an unmarried child who was still a minor. 
 In the House of Lords, Justice Brandon, in the only opinion given, which was acceptable to the other Lords, excellently summed up the ingredients of the offence of kidnapping as (1) the taking or carrying away of one person by another (2) by force or fraud (3) without the consent of the person so taken or carried away (4) without lawful excuse.
After tracing the history of legislation on the crime of ‘child stealing’ now known as ‘kidnapping’ in the new Offences Against the Person Act.1981, (known as The OP Act)and also by rejecting the beautiful argument of the Counsel for the father that ‘in view of the absence of protection to the father of a legitimate child comparable to the protection given to both the father and mother of an illegitimate child in the OP Act of 1981,’ in cases of offence of kidnapping, (such lack of protection) could only be explained and (understood) that ‘the legislature thought that it was impossible for father of a legitimate child to be guilty of the offence of  kidnapping if he takes the child by force or fraud’, Lord Brandon, in an equally beautifully reply, had declared ‘that in view of the changed social conditions and legal attitudes existing today it is possible for a father to commit the common law offence of kidnapping his own child’ as ‘the affirmative answer to the first question’.
Also giving a positive answer to the second question, Lord Brandon declared that ‘in all cases of kidnapping of a child, the absence of child’s consent is material fact, whatever may the age of the child. In the case of very young child who could not the…. understanding or the intelligence to give consent the absence of consent is an inference to be drawn on the fact of the age of the child. In the case of older child the Jury had to decide whether the child has sufficient understanding and intelligence to give consent and then consider whether it was proved that the child did not give consent’.
Accepting that it is desirable as a matter of policy, Lord Brandon gave the unanimous opinion of the House that ‘proceedings for Contempt of Court against father for snatching away his own child declared as ward of the Court’ can be initiated and ‘criminal prosecution can be brought only in exceptional cases keeping in mind the reprehensible conduct of the father. 
The House of Lords set aside the ruling of the Court of Appealand sustained the conviction of father.


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Friday, July 22, 2011

MURDER AND FODRFEITURE RULE by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad

 (Published in Supreme Court Journal, Hyderabad, 2007, VOL. 3, pages 1-16)
“Is it ever possible for a person who commits murder (or shall we say convicted of murder) to take the property left on Intestacy or under the Will of the person murdered” will be the main focus of this Article.
Brief Introduction of the Main Topic in PART I, The High Court decisions given after the Act came into force in PART II, The Law prior to 1956 in PART III, Re-examination of the Criminal Cases already decided by the Civil Court in Part IV, Introducing independent evidence in proceedings under Sec.25 in Part V and finally the Corresponding State of Law in England in Part VI, respectively, were the main topics of this Article. 
PART I                                            
I would like to start this Article by referring to the provision given in Sec. 25 of The Hindu Succession Act, 1956 (hereinafter referred to as ‘The Act’) and also by referring to the different rulings given by different High Courts.
The full text of Sec.25 is as follows and it can be split in two parts.
Murdered Disqualified
“A person who commits or abets  the commission of the murder  shall be disqualified from inheriting the property of the person murdered or other property in furtherance of the succession to which he or she committed or abetted the commission of the murder”
The first part of the section informs us that a person is disqualified from taking the property left behind by the deceased if such person commits or abets the commission of murder of the deceased from whom he or she would have naturally taken the property if such killing has not taken place.
In other words, a murderer or an abettor of murder is disqualified from taking any property left by his or her victim. Here under the first part, the Disqualification Rule (hereinafter referred to as ‘The Rule’ in this article) is straight and direct.
For example, Mr.X is having an adopted son ‘S’ and naturally born daughter ‘D’. S kills his father. S is disqualified.
Again, ‘X’ is having a son through his first wife.  After the death his first ‘X’ married ‘W’ and a daughter was born to her. ‘Second wife instigates Son to kill his father. He kills him. He is disqualified. She is also disqualified as an abettor.
Coming to the second part, a murderer or an abettor of murder is disqualified from taking any other property when the killing has been carried out in furtherance of succession to the property. Here the disqualification is not direct and the emphasis is laid on the words “or other property in furtherance of the succession  to which he or she committed or abetted the commission of murder”
For example, ‘X’ is expected to die within a year as he was suffering with serious illness. He has a minor daughter ‘D’ and a brother ‘B’. ‘B’ kills the girl. Since this killing was carried out to accelerate the process of succession to take the property of ‘X’, ‘B’ may be disqualified though he has not killed his brother.
In yet another example, Mr. X is having an adopted son ‘S’, a naturally born daughter ‘D’ and his brother B. B instigates S to kill his father. S kills his father and is disqualified. Unfortunately D also died in accident after one year. As against B, the rule of disqualification may become problematic if B has no intention to accelerate the process of succession but had great animosity towards his brother X for not adopting his son P in preference to S and so he has encouraged S to kill his father. There is reliable evidence that before, during and after adoption there was confrontation between X and B and the relatives and friends have pacified them.
Will this evidence make any difference to the rule of disqualification? No doubt B is responsible for the death of X at the hands of his son. No doubt the son is disqualified under first part. The disqualification of B is highly debatable as the most important requirement that the abetment to murder was carried out by B in furtherance of succession is totally missing.    
Therefore, the crux of the problem revolves round the words “commits or abets the commission of murder” found in the section. When can a person be declared to have committed the murder is the most important point.  It can surely be said that on conviction for murder, he or she can be declared to come within the Disqualification Rule, provided, as declared in the Section, the killing is carried out in furtherance of succession.
When the criminal act of the heir happens, not to be murder or at least, the abetment to murder, an inquiry to find out whether such act was carried out to accelerate the process of succession is a futile exercise.

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MATRIMONIAL RAPE by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad

(Published in Criminal Law Journal, Nagpur, 2005 at pages 357 to 368)
I wish to begin this Article with the two most important legal principles found in English and Indian Law.
In Indian Law, the legal principle, in the form of Legislative Provision, is given in the Exception in Sec. 375 of The Indian Penal Code, 1860  (hereinafter referred to as ‘The Code’)
The above Exception reads as follows:
“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.   
In England, the principle, in the form of Judicial Dictum, was given by Chief Justice Sir Matthew Hale when he said that  “By their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”  in the year 1736. 
How far these two ancient legal principles are still relevant in this Age of Modern Marriages will be the main focus of this Article.
  Part I 
Any aspect of the law relating to Rape is sure to evoke controversy. 
The marital rape exception has been described as “outrage to human conscience and reason in the enlightened country in our time”. 
We can observe from the English Case Law  that the cases relating to the prosecution of a husband for rape upon his wife has come before the Courts when there were irreconcilable matrimonial problems between the spouses leading to their estrangement.  
Coming to the position in England, earlier to the Sexual Offences Act, 1956, (Referred to as ‘The SO Act’) Rape  is an offence at Common Law. In view of the criticism with the decision in Morgan  by the House of Lords, in 1976,  the law was codified. Then in 1994, through Sec.142 of the Criminal Justice and Public Order Act, 1994, a new definition of Rape  was brought into force by replacing the existing Sec. 1 of the SO Act, 1956. 

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ATTORNEY CLIENT PRIVILEGE by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad

If you reveal your secrets to the wind, you should not blame the wind for revealing them to trees.
                                                                                                      KHALID GIBRAN

The exact scope and extent of the Attorney-Client Privilege (Referred to as the Privilege) is still in controversy though it is one of the most venerable of the common law privileges.

In spite of the fact that the fundamental Legal Maxim is that “the public ……. has a right to every man’s evidence”,[1] the Courts in England,[2] America[3] and India[4] have protected the confidentiality of communications between Attorney and Client with few exceptions.

This privilege was recognized[5] as part of the law ‘for the benefit of the Client who gave confidential information to his lawyer in defending his case’ and ‘unless the client gives permission his lawyer cannot give evidence of this information’.

At least in theory, ‘Legal Professional privilege does not come to an end’ and it may subsist for many years’ is generally the accepted rule.

This rule was usually followed in many countries including India.

 Some times it is also argued that ‘the privilege is only coextensive with the interest of the holder (the client) in preserving it’. Therefore, when client did not obtain any more benefit in preserving the privilege, it may be defeated by the interest of another person with an immediate need for access to the information given to the Attorney.

However, some commentators[6] recently began “to argue that the privilege should be limited particularly after the death of the client regard being had to the unavailability of relevant information”.[7]

The US Supreme Court (known as the ‘USSC’) had to grapple with the issue of preservation of the privilege even after the death of the client in Swindler & Berlin[8] in the year 1998. 

The facts were ‘that 7 employees of White House Travel office were fired for some financial irregularities found in some Travel Office contracts entered into by the Government.

 The US Attorney General asked the Office of Independent Counsel (Referred to as ‘IC’) to probe this matter of firing of the 7 employees.

Meanwhile, White House Deputy Counsel, Mr. Vincent Foster went to meet Mr.James Hamilton, an attorney in the Law Firm, Swindler & Berlin to inquire about legal representation relating to the dismissals. Hamilton took 3 pages of Hand written notes of this meeting after assuring Mr Foster that their conversation was privileged. Completely disturbed by the ugly turn of events, Foster committed suicide.

At the request of IC, in proceedings before The Federal Grand Jury, the Jury asked Hamilton and the Law Firm to produce the notes of the meeting with Foster.

Hamilton argued that the notes were protected under both Attorney-Client and Work Products privilege.

The Court of Appeals for the District of Columbia Circuit reversed the District Court ruling that “notes prepared by an Attorney need not be produced by not enforcing the subponae”.

Despite accepting that Courts have generally assumed that the privilege survives the death, The Circuit Appeals Court held that the client’s death calls for qualification of the privilege. The Circuit Court also held that ‘the “unavailability through death, coupled with the non-existence of any client concern for criminal liability after death, creates a discrete realm (use in criminal proceedings after the death of the client) where the privilege should not automatically apply”. As such, an attorney can be compelled to disclose client statements if they concerned a significant aspect of the crimes at issue and as aspect as to which there is a scarcity of reliable evidence”.   
Finally, Hamilton brought this issue before the USSC.
The US SC, Lord Chief Justice Rehniqusit, writing for the majority, with Lords Justices Stevens, Kennedy, Souter, Ginsburg and Breyer joining with him, held that “privilege survives the death of the client in a case such as this” thus preventing the notes from disclosure.

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CHILDCARE PROCEEDINGS by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad

A communication once privileged is always privileged.”

                                                            Lord Cockburn in Bullock V. Corrie[1]
(Published In All India Reporter, Nagpur 


In creating more exceptions to the preservation of the ‘Attorney-Client Privilege’, (called as ‘The Privilege’ in this legal notes) Lord Thorpe, in Essex County Council,[2]  took the bold step in giving the ruling that in view of the fact that ‘welfare of the child is of paramount consideration to the Courts’, Attorneys have ‘the duty to disclose the medical and other reports’ that may contain ‘statements adverse to their clients’ interests’.

While not accepting that the privilege cannot be displaced under the Act without legislative process, Lord Thorpe declared that ‘the judge in wardship (proceedings ) held a responsibility to investigate any material relevant to the determination of  the welfare of the child, whether put before him by the parties or in adversarial range or not. Where the Court considers the welfare of the child, the power it holds enables it to override the privilege which is set up to preserve or enhance the adversarial position of  one of the parties’.[3]

The above ruling was given on the following facts.  The Local Council applied for care order in respect of a chilled of a mother who was already a drug addict. The mother opposed the disclosure of the contents of a Report, already handed over to Legal Counsel of her, prepared by a consultant psychiatrist on the general and behavior and tendency of drug addicts in matters of protecting the welfare of a childe as there were some adverse remarks about her conduct and behavior.

Lord Thorpe, in giving his ruling, did not follow the opposite view of Lord Douglas Brown in Baking and Dagenham London Borough Council V. O.[4] but ‘picked up where Lord Johnson[5] left’ and further developed the law on this point.

The disclosure of the contents of the Report was allowed.

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POST DIVORCE MARRIAGES PENDING APPEAL by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad

IN RECENT times the legal validity of ‘post divorce marriages pending appeal’ has come up for decision before the apex court in some cases. This problem arises when a successful spouse in divorce proceedings solemnizes his or her second marriage immediately after divorce has been granted by the lower court. They do so without inquiring whether or not an appeal was submitted, despite the fat that the unsuccessful spouse has a right to prefer an appeal in the high court including the right to bring this matter before the Supreme Court in some exceptional circumstances.

                The right of appeal is given in section 28(4) of the Hindu Marriage Act, 1955 and the appeal has to be filed within 30 days of the decree of divorce.

                The right to re-marriage is given in section 15 of the above Act. The proviso to the section declares: “it shall not be lawful for the respective parties to marry again unless one year has expired from the date of the decree of divorce passed by the lower court on the first occasion”.

                The legislature has put in a period of one year as waiting period for the divorced persons to marry again by adding the proviso to section 15, with the hope that by that time the unsuccessful spouse may exhaust all the appeals available to him or her and the divorce proceedings would have reached their finality.

The parties then will completely be free from the earlier marriage leading them safely to their second marriage. 
This was the legal rule prior to the amendment to section 15 of the Act.

But for reasons best known to the Parliament, the proviso was completely dropped in 1976 thereby enabling the successful spouse to go in for a second marriage without finding out whether or not an appeal is pending in the appellate court.

In recent times, there appears to be undue haste in having the second marriage solemnized (remarriage) by divorced males or females without waiting for the reaction of the spouse not in favour of the decree of divorce already passed by the lower court.

  • Lecturer, Pendekati Law College, Safilguda, Hyderabad.

Finally, the legal validity of such second marriages has engaged the attention of the hon’ble judges of the Supreme Court, resulting in sharp conflict of legal opinions expressed by the justices on this issue, when appeals were brought forward by unsuccessful spouses in the years 1967,1 1978,2 1988,3 1995,4 1997,5 and 20026 in challenging the lower court orders. This will form the main issue of this legal note.

The first two cases in their chronological order were decided earlier to the amendment to section 15 of the Hindu Marriage Act, 1955 [hereinafter referred to as the Act in this regard] in the year 1976. But the legal principles evolved in the judgements are relevant and also important even subsequent to the amendment to have a thorough grasp of the subject matter of this legal note.

A decree of divorce may be passed on merits on a petition being filed by the husband or the wife, as the case may be, under section 137 or jointly by both of them under section 13B8 of the act.

It must also be noted down first that:9
[No court shall take up a petition for divorce under this Act unless at least one year of matrimonial life has been completed between the spouses save when the petition is permitted to be presented even earlier than one year under the proviso to section 14 of the act.

Sections 28 (4) and 15 of the Act are most important in this regard. Section 28(4) gives us an idea about filing of appeal to challenge any decree or order passed by the lower court under the Act.

The text of section 28(4) gives us ;an idea about filing of appeal to challenge any decree or order passed by the lower court under the Act.

The text of section 28(4) is as follows: 
                Section 28 Appeals from decrees and orders.

                Section 28(40. Every appeal under this section shall be preferred within a period
                of thirty days from the date of the decree or order.

The complete text section 15, prior to the amendment in the year 1976, was as follows:
  1. Chandra Mohini Srivastava v. Avinash Prasad Srivastava, AIR 1967 SC 581
  2. Lila Gupta v. Laxshmi Narain and others, AIR 1978 SC 1351
  3. Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839
  4. Prakash Chandra Sharma v. Vimlesh, 1995 (4) SCC (Suppl.) 642
  5. Ashok Hurra v. Bipin Chandra Zaveri, 1997 (4) SCC 230
  6. Savitri Pandey v. Prem Kumar Pandey, 2002 (2) SCC and Praveen Mehta Inderjit Mehta, 2002 (5) SCC 710.
  7. Divorce under s. 13 of the Hindu Marriage act, 1955.
  8. Id.. Divorce by Mutual Consent
  9. Id…s.14 – No Petition for divorce to be presented within one year of marriage.
  10. Id.S.28 This section has four sub-sections.

                Section 15. When Divorced Persons May Marry Again.

                When a marriage has been dissolved by a decree of divorce and there is no right
                of appeal against the decree or, if there is such a right of appeal, the time for
                appealing has expired without an appeal being presented, or an appeal has been
                presented but has been dismissed.

                Provided that it shall not be lawful for the respective parties to marry again unless
                at the date of such marriage at least one year has elapsed from the date of the
                decree in the court of first instance.

It is to be noted down that in 1976 that the above proviso to section 15 alone was dropped.11

                It is very important to note down the different dates as to when the petitions for divorce were filed, the first appeals were submitted in the high courts, the special leave petitions have been presented before the Supreme Court, and also when the second marriages have taken place in all these cases.

                It is very appeal preferred by Chandra Mohini in the year 1967 before the apex court, the facts were that her marriage with Avinash Srivastava took place on 27.5.1955. The husband filed a petition for divorce on the plea that his wife was living in ‘adultery’13 with Chandra Prakash who happened to be a close relative of his wife.14

                The lower court held that ‘she was not living in adultery as alleged by her husband since there was no proof that she was having any sexual relationship with Prakash’ and dismissed the petition.15

                Allowing the appeal preferred by the husband on 7.1.1964, the Allahabad High Court passed a decree of divorce16 on the ground of adultery of the wife on the strength of two letters written by Prakash to Mohini sometime in 1955 to infer that she was living in such a situation.

                On a request being made by the wife for ‘Special Leave’ on 7.4.1964, the Supreme Court granted ‘Special Leave’ to her on 25.8.1964.17

                The husband also filed an application making a request to the apex court that the ‘Special Leave’ granted should be revoked on the following reasons. Firstly, he pointed out that the high court has passed the order that the decree given in his favour shall take effect forthwith, resulting
  1. Marriage Laws (Amendment) Act, 1976.
  2. As an alternative relief, the husband also claimed for ‘Judicial Separation’
  3. S. 13(1)(i0 of the Hindu Marriage Act, 1955.
  4. Supra note 1 at 582 (para 1).
  5. Ibid. (para3).
  6. Divorce granted by invoking U.P. (Amendment) to s.13 (1)(viii).
  7. Supra note 1 at 582 (para 5).
In his marriage being dissolved when his appeal was allowed. Secondly, she did not communicate to him her intention to challenge the decree by obtaining special leave from the court. 
It was also pointed out that it was only on 9.9.1964 that he received notice that special leave was obtained by the appellant to file the appeal.18

In the above circumstances and also as there was no ‘stay’ granted on the decree, it has been stressed that ‘the husband has believed that woman on 2.7.1964 and had a son’ and this was the main reason to request for dismissal of her appeal.19

As against the above arguments of the respondent, it was submitted by the appellant that she ‘has no duty to communicate her intention to respondent before making a request for special leave to challenge the decree’ passed by the high court. It was also pointed out that even though notice was served on the respondent on 9.9.1964, the application praying for revocation of the special leave already granted to her was filed only on 15.9.1966.20

K.N. Wanchoo and G.K. Mitter, JJ., after hearing the arguments, said that ‘Special Leave’ cannot be revoked on grounds put forward on behalf of the first respondent. Section 28 of the Act, inter alia. provides that all decrees and orders made by the court in any proceedings under the Act may be appealed from under any law for the time being in force as if they were decrees and orders of the court made in the exercise of its original civil jurisdiction. Then after referring to section 15 the justices have said that ‘these two sections make it clear that where a marriage has been dissolved, either party to the marriage can lawfully marry only when there is no right of appeal against the decree dissolving the marriage or if there is no right of appeal against the decree dissolving the marriage or if there is such a right of appeal, the time for filing the appeal has expired without an appeal having been presented, or if an appeal has been presented, it has been dismissed. It is true that section 15 does not in terms apply to a case of an application for special leave to the Supreme Court. Even so, the author is of the opinion that the party who has won in the high court, and got a decree of dissolution of marriage cannot marry immediately after the high court’s decree and thus take away from the losing party the chance of presenting an application for special leave. Even though section 15 may not apply in terms and it may not have been unlawful for the first respondent to have married immediately after the high court’s decree, for no appeal as of right lies from the decree of high court to the apex court in this matter, the author still

  1. Ibid.
  2. Ibid.
  3. Ibid (para6)
Feels that it was for the first respondent to make sure whether an application for special leave had been filed in the court and he could not, by marrying immediately after the high court’s decree, deprive the appellant of the chance to present a special leave petition to the highest court. If a person does so, he takes a risk and cannot ask the court to revoke the special leave on this ground.21

As such, the justices have dismissed the application for revocation of special leave. Then coming to the merits of the appeal, the justices have declared that there was not adultery on part of wife and have declared:22

We, therefore, allow the appeal, set aside the order of the High Court and restore
                that of the trial court rejecting the petition of the respondent.

It is to be observed that in Chandra Mohini, the judges have not given a direct answer regarding the legal validity of the second marriage of the husband pending the appeal.

From a reading of the above judgment, two contradictory views can be put forward. It can be argued in the husband’s favour that his second marriage may not be void in the light of the observations of the judges that ‘an appeal as of right to the court is not available’ and ‘it may not be unlawful for the respondent to marry immediately after the judgment of the High Court’.

But it can also be argued in the wife’s favour that the husband’s second marriage is not valid since ‘the respondent did not make it sure whether an application for Special Leave has been filed in the court’ may be review not only immediately but if he does so he makes a risk and cannot ask the Court to revoke the Special Leave on this ground’.

According to the author, the latter view is correct and the second marriage is void when it is observed that the court while restoring the order of the lower court in refusing to grant divorce has also cancelled the high court order in granting the divorce.

The facts leading to the appeal being filed by Lila Gupta in the year 1978 before the Supreme Court were as follows:

On 8.4.1963 the lower court passed a decree of divorce between Sarla Gupta and Rajendra Kumar. On 25.5.1963 Kumar had a second marriage with Lila Gupta. Kumar died on 7.5.1965. After Kumar’s death, Lila claiming to be the widow of Kumar asserted her rights in consolidation proceedings relating to some lands left by Kumar. She was successful before the deputy director general and the settlement officer under the relevant legislation.23
  1. Ibid. (para 7)
  2. Ibid. (para 14).
  3. Supra note 2 at 1351-1352 (para 2)
But a single judge of the Allahabad High Court, in an appeal preferred by Laxmi Narain and others,24 reversed the orders passed by the settlement officer byu declaring that Lila Gupta’s marriage with Kumar being in violation of the proviso to section 15 was null and void. The division bench also confirmed the order of the single judge.25 She challenged the high court division bench judgment.

While R.C. Pathak, J.. wrote a separate judgment, D.A. Desai, J., wrote for himself and for Y.V. Chandrachud, J., in allowing the appeal of Lila Gupta.

Referring to sections 5,11, 12 of the Act, Desai and Chandrachud JJ., pointed out that section 11 declares that ‘any marriage solemnized in contravention of conditions laid down in clauses (i), (iv) and (v) of section 526 is declared as ‘void’27 while section 1228 declares that any marriage solemnized in contravention of the condition laid down in clause (ii) of section 5 only as ‘voidable’ and this indicates that only certain marriages are void while others are not as provided in the Act.29

Then coming to the marriage solemnized in contravention of the condition laid down in clause (iii) of section5, the court declared that neither the marriage is void nor voidable in absence of any provision but section 1830 only prescribes simple punishment without declaring the marriages as ‘void’.   

Then speaking about the second marriage of Kumar with Lila in contravention of the proviso to section 15, in the light of the above observations, the justices have declared that the proviso opens with a prohibition that it shall not be lawful etc. Is it an absolute prohibition, violation of which would render the marriage as a nullityu? While granting a decree of divorce the law prohibits a marriage for a period of one year from the date of the decree. But whenever a statute prohibits a certain thing being done thereby making it unlawful without providing for consequences of the breach, it is not legitimate to say that such a thing when done is void because that would be tantamount to saying that every unlawful act is void. Therefore, even thought the proviso is couched in a language prohibiting a certain thing being done, that by itself is not sufficient to treat the marriage contracted in contravention of it as void.31
  1. Lakshminarain was the brother of Sri Kumar
  2. Supra note 2 at 1352 (para2)
  3. Supra note 13, s. 5 – Conditions for a Hindu Marriage’.
  4. Id., s. 11 – Void Marriages’.
  5. Id.S. 12 – ‘Voidable Marriages’.
  6. Supra note 2 at 1354.
  7. Supra note 13, s. 18 – Punishment for contravention of certain other conditions for a Hindu Marriage.
  8. Supra note 2 at 1355 (para 10).

The justices have made a reference to the amendment to section 15 in 1976 to declare that ‘the net result is that now since the amendment, parties whose marriage is dissolved by a decree of divorce can contract marriage soon thereafter provided the period of appeal has expired.32

R.C. Pathak, J., in his separate judgment, also allowed the appeal when he said that ‘a statutory provision may be construed as mandatory when the object underlying it would be defeated but for strict compliance with the provision. It is also noteworthy that the impediment to the remarriage provided by the proviso to section 15 is a temporary one and ceases on the expiration of the period of one year. The proviso proceeds on the assumption that the decree dissolving the marriage is a finaldecree and merely attempts to postpone the remarriage. The defeasibility of the decree because an appeal has been provided is a matter with which the main provision of section 15 is concerned. Further evidence that the proviso to section 15 is directory only is provided by its deletion altogether by Parliament by the Marriage Laws Reforms Act, 1976.’33

Pathak, J., further observed that ‘the right to marriage shall not be exercised before the decree of divorce has reached finality’34 and that ‘a marriage solemnized in violation of the main provision of section1 5 is a nullity cannot be summarily rejected’ (since” the question which arises before us in this case does not directly involve the construction of                                                                  any legal opinion on the validity of such a marriage.35

No doubt that the above ruling of the court has turned upon the application and interpretation to be given to the proviso to section 15, yet the observations of Pathak, J., that ‘a marriage solemnized in violation of the main provision of Section 15 is nullity cannot be summarily rejected’ are very important despite the fact that he declined to express the legal opinion further since it will be only obiter in the case although he agreed with the majority in allowing the appeal for different reasons.

Allowing Lila Gupta’s appeal the judges have said ‘as her marriage even though in contravention of the proviso to Section 15 is not void, she cannot be denied the status of wife and therefore, the widow of deceased Kumar and in that capacity as an heir to him’.36

In 1998, when the appellant-wife, Tejinder Kaur appealed before the Punjab and Haryana High Court, challenging the decree of divorce already passed by the additional district judge on 29.3.1986,37 it was
  1. Ibid, (para 12).
  2. Id.At 1360 (para 25).
  3. Id.At 1361 (para 29, emphasis added)
  4. Id.At 1362 (para 30)
  5. Id.At 1359, 1362 (para 21 & 31), emphasis added).
  6. Supra note 3 at 839 (para 1).

Dismissed in limine on 16.7.1986,38 thereafter, immediately on 17.8.1986, the respondent-husband solemnized his second marriage.39

Then she filed a special leave petition before the Supreme Court. The respondent raised a preliminary objection that as he had remarried, the special leave petition is not maintainable.

In rejecting the above objection, A.P. Sen and B.C. Ray, JJ., said40:

It was incumbent on the respondent to have enquired about the fate of the appeal. At any rate the High Court having dismissed the appeal on 16.7.1986 the petitioner could have presented an appeal by special leave petition within 90 days therefrom under Article 133 © of the Limitation Act, 1963 till 14.9.1986. Till that period was over, it was not lawful for either party to marry again as provided by Section 15. It was incumbent on the respondent to have apprised himself as to whether the appeal in the High Court was still pending and if not, whether the period for filing a Special Leave Petition to the Court had expired. We must accordingly overrule the preliminary objection following the views expressed in Chandra Mohini and Lila Gupta cases.

It was also pointed that 41:

The section [Section 15] when it speaks of a case where there is a right of appeal does not in terms cover a case of an application for Special Leave to appeal to the Supreme Court under Article 136 of the Constitution.

Then coming to the main issue regarding the husband’s remarriage, there appear to be no direct answer, as happened in Chandra Mohini, but the judges have indicated that ‘under the law laid down in this eanactment, monogamy is the rule and a party can only contract a valid second marriage after the first ceases to exist in themanner envisaged by section 15. The rule laid down in this section is an integral part of the proceedings by which alone both the parties to the decree of divorce can be released from their incapacity to contract a fresh marriage’.42

The above observations make it clear that the husband’s second marriage is null and void. The fact that wife’s appeal was allowed also supports this view.

Finally the apex court allowed the appeal declaring that ‘we must for this reason overrule this preliminary objection and direct the Special
  1. Ibid.
  2. Ibid.
  3. Id. At 841 (para 9).
  4. Ibid. (para 6 emphasis added).
  5. Id. At 840 (para 5).

Leave Petition to be placed for hearing’.43

                Coming to the year 1995, on Prakash Chandra Sharma’s request for divorce, on three different reasons of (i) desertion (ii) cruelty and (iii) unsoundness of mind of his wife, the trial court passed the decree of divorce only on first two reasons.44

                This decree was confirmed by the appellate court only on the reasons of ‘creulty’ on the part of wife.45

                But in the second appeal preferred by the wife, the high court reversed the decree by holding that husband failed to establish ‘cruelty’ on the part of wife.46

                The appellant-husband brought his case before the Supreme Court.

                An important relevant fact that was brought before the high court was that aft4er ‘the first appellate court has confirmed the decree of divorce on 29.8.1988 and after the second appeal was filed by wife, the husband married again on 21.11.1988 and has a child’.47

                Swarup, the learned lawyer for the appellant asked the court for confirmation of the decree already passed since his married life was irretrievably broken down, more so because he had contracted a second marriage. But the judges did not accede to this request.48

Both A.M. Ahmadi and B.L. Hansaria, JJ., declared: 49

                If the husband remarried in hot haste after the institution of the second appeal which was delayed by 3 days, we cannot see how that fact can come to his rescue. That is clearly opposed to                                                         which in tgerms states that when a marriage is dissolved by a decree of                                                                                                 of appeal against the decree or where there is such a right of appeal, the time for filing the appeal has expired or an appeal has been presented and has been dismissed, it shall be lawful for either party to the marriage to remarry. In the instant case, no doubt that 2nd appeal was delayed by 3 days but the fact is that it was instituted and was pending on the date of the 2nd marriage. Therefore the husband has acted in disregard of section 15 and cannot get the benedfit of his own wrong.

                From the above observations of the justices, Prakash Chandra’s second marriage on 21.11.1998 pending an appeal by his wife was clearly void when we refer to the last sentence in the above passage.

  1. Id. At 842 (para 10).
  2. Supra note 4 at 642 (para 1).
  3. Ibid.
  4. Ibid.
  5. Ibid. (emphasis added).
  6. Id. At 643 (para 4).
  7. Id. At 643 & 644.

                The husband’s appeal dismissed. This again supports the above legal position.

                In Ashok Hurra v. Rupa Bin Zaveri, setting aside the city civil judge’s order of 17.10.1986 in dismissing the petition50 for divorce by mutual consent on the reason that ‘since the wife withdrew her consent51 for a decree of divorce under mutual consent coming within Section 13B52, even befo0re the decree could be passed’,53 the single judge of Gujarat High Court granted divorce on 15.3.1986 by allowing the first appeal.54

                Ashok had his second marriage with Sonia on 18.8.1985.55

                But in the letters patent appeal by respondent, the division bench reversed the above order on 9.9.1996 by declaring that ‘the wife withdrew her consent even before the trial court could make an enquiry. The trial court was, therefore, right in dismissing the application submitted under section 13B of The act’.56

                The husband preferred an appeal in the Supreme Court. By invoking article 14257 of the Constitution the apex court granted divorce by declaring that the married life has completely broken down between the spouses. But the above orders have come about with a rider put in by the judges. Paripooman, J., writing the judgement with M.M. Punchhi, J., in agreement, declared that divorce is ‘conditional and it shall take legal effect only on payment or deposit of the amount in this Court of the entire sum of Rs.10 lakhs by appellant to the respondent.’58

The judges also issued the following orders:59
                [T]hat the proceedings initiated under Section 494 of The Indian Penal Code, 1860 read with Section 17 of The Act ‘shall stand terminated, but only on payment or deposit of the amounts ordered by us in this judgment. This is made clear.

                These directions have become necessary since the wife had filed a criminal complaint on 14.11.1994 against the appellant.60

  1. Petition for “Divorce by Mutual Consent’ preferred on 21 Aug 1984.
  2. On 27.3.1986, wife sought permission to withdraw her consent for divorce.
  3. On 4.4.1985, husband alone moved a ‘motion’ as required under s. 13(B)(2) of the Act for divorce.
  4. Supra note 5 at 230 (para 5, emphasis added).
  5. Id. At 231 (para 6).
  6. Ibid. (para 8).
  7. Ibid. (para 7, emphasis added).
  8. The appellant made a specific request to the Supreme Court to invoke art, 142 of the Constitution.
  9. Supra note 5 at 241 (para 26, emphasis added).
  10. Ibid. (emphasis added).
  11. Id. At 232 (para 9).

                The directions given above implicitly recognize that the first marriage of Ashok was dissolved, but his second marriage even when the appeal is pending will not attract criminal consequences provides the amount fixed by the court is paid to the first wife. Otherwise, the law will take its own course on the complaint already given against him.

                The true legal effect of termination of criminal proceedings clearly indicate that the second marriage of the appellant with Sonia was not bigamous despite the appeal preferred by the wife only when the amount is paid to the respondent.

                Indeed, this is an unusual decision of the apex court. In view of the peculiar circumstances of the case, it is very difficult to declare whether post divorce marriage pending appeal is valid or not.

                This appears to the first judgment of the court in matrimonial jurisprudence wherein criminal proceedings were terminated on payment of money to the opposite party.


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Sunday, July 17, 2011

Sampling and its characteristics by Ankit Awasthi, LLM 2nd Year, Hidayatullah National Law University

This synopsis is a discussion on sampling in research. It is mainly designed to equip beginners with knowledge on the general issues on sampling that is definition of sampling, the purpose of sampling in research, sample, and its characteristics. Sampling method is an important tool in the realm of social science researches. For this, the data has to be collected and analysed. There are two methods of data collection, i.e., Census Method and Sampling Method. For  studying any  problem  it  is  impossible  to  study  the  entire  population.    It  is  therefore  convenient  to  pick  out  a sample  out  of  the  universe  proposed  to  be  covered  by  the  study.  For a clear flow of ideas, a few definitions of the terms used are given.

What is a sample?
According to Webster Dictionary, 1985
A sample is a finite part of a statistical population whose properties are studied to gain information about the whole.”
Goodeand Hatt defined sample as “a smaller representation of large whole.”
Nan Lindefines it as “asubject of cases from the population chosen to represent it.”
So we can say that when a small group is selected as representative of the whole it is known as sample.

What is sampling?
The sampling method was first introduced and used in a social research in 1754 A.D. by Bowley. Sampling is the act, process, or technique of selecting a suitable sample, or a representative part of a universe or population for the purpose of determining parameters or characteristics of the whole population. It is the process of selecting a sample from the population. For this population is divided into a number of parts called Sampling Units.

Universe or Population:
In research these term used interchangeably. Generally universe is a geographical area from where sample is to be collected. Population is constituted of all the individuals, things, events, documents or observations etc. belonging to a designated category, which a particular study should principally cover. A population contains sub-population or stratum.

What is the purpose of sampling?
 To draw conclusions about populations from samples, we must use inferential statistics which enables us to determine a population`s characteristics by directly observing only a portion (or sample) of the population. We obtain a sample rather than a complete enumeration (a census) of the population for many reasons. These are as follows:-
  • Economy
  • Reliability
  • Detailed study
  • Scientific base
Characteristics of an ideal sampling:
Sampling has following characteristics:
  • Representativeness- An ideal sample must be such that it represents adequately the whole data. We should select those units which have the same set of qualities and features as are found in the whole data.
  • Independence-The second feature of a sample is independence that is interchangeability of units. Every unit should be free to be included in the sample.
  • Adequacy-The number of units included in sample should be sufficient to enable derivation of conclusions applicable to the whole data.
  • Clear, unambiguous and definite.
  • Selected on the basis of mathematical law of chance or probability.
  • Sample should represent the different areas of universe.
In conclusion, it can be said that sampling technique has very high value in the educational, economic, commercial and in day-to-day activities. Using a sample in research saves mainly money and time, if a suitable sampling strategy is used. If appropriate sample size selected and necessary precautions taken to reduce on sampling and measurement errors, then a sample should yield valid and reliable information.