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This article is written by Shilpi. This article contains a detailed analysis of the findings and decision of the Supreme Court in the case of Bhagat Ram vs. Teja Singh (2001). The article discusses the facts, arguments, laws involved and the judgement of the case. The article also provides an analysis of the judgement with respect to the succession rights of a female Hindu after the commencement of the Hindu Succession Act, 1956.

Table of Contents

Introduction

India is home to diverse religious groups where individuals follow a set of laws relating to marriage, divorce, guardianship, inheritance, etc. In India, the Hindu Succession Act, 1956 is the governing law for dealing with the rules of succession for Hindus. The noteworthy aspect of this Act is that it bifurcates the process of intestate succession between males and females. In females, the rule traces the origin of the property that the deceased female obtained prior to her death.

The devolving of the property upon the death of a female who owned it during her lifetime has remained a point of contention across several cases in the Indian landscape. While the relatives on the father’s side make a claim to the property, the relatives on the husband’s side do not shy away from exercising this claim to assert their right to inherit the property after the passing away of the female. The Supreme Court, in Bhagat Ram (Dead) by LRs. vs. Teja Singh (Dead) by LRs. (2001), however, shone a torch on how a property devolves upon the heirs of the father when a female dies without any offspring and is seen to inherit the property during her lifetime from her mother or father.

Details of the case

The following are the fundamental details of the case:

Court: The Supreme Court of India

Appellants: Bhagat Ram (Dead) by LRs.

Respondents: Teja Singh (Dead) by LRs.

Case Number: Appeal (civil) 3663 of 1984

Neutral Citation: (2002) 1 SCC 210

Bench: Justice K.G. Balakrishnan, Justice U.C. Banerjee

Date of decision: 06.11.2001

Relevant Act: The Hindu Succession Act, 1956

Relevant Sections: Sections 14 and 15 of the Hindu Succession Act, 1956

Facts of the case

One Kehar Singh (A) was the owner of a land in Pakistan. He died before the partition of India and Pakistan. After his death, his widow Smt. Kirpo (B) and his two daughters Smt. Santi (D1) and Smt. Indro (D2) migrated to India. In place of the property owned by ‘A’, his widow, B was allotted some portion of land in India. After the death of B, D1 and D2 inherited the property. D1 died without any heir. D2 inherited the property of D1 after her death as per Section 15(2)(a) of the Hindu Succession Act, 1956 (hereinafter referred to as the “Act”). D2 entered into an agreement to sell the same property to Bhagat Ram (hereinafter referred to as the “appellant”). D2 filed a suit for specific performance, which was decreed in the favour of Bhagat Ram.

Teja Singh (hereinafter referred to as the “respondent”) is the brother of the husband of the deceased D1. The respondent filed a suit alleging that after the death of D1, her property devolved in favour of the respondent according to Section 15(1)(b) of the Act. The Trial Court decreed the suit filed by the respondent. The appeal filed against the said decree was dismissed by the court.

Thereafter, the appellant filed a second appeal before the High Court, which was also subsequently dismissed. However, on appeal before the Supreme Court, the court held that D1 inherited the property from her mother. Therefore, Section 15(2)(a) of the Act will be relevant in the present circumstances, and hence, the respondent has no right to the property left by the deceased D1. The Apex Court decided that the property left behind by the deceased D1 will devolve on her sister ‘D2’.

Teja Singh was the only respondent in the appeal before the Supreme Court. After the service of the notice, he failed to appear before the Supreme Court and did not defend his case. After his death, no steps were taken to bring his legal heirs on record. Subsequently, Bhagat Ram also died and his legal heirs were brought on record to appeal. During the hearing of the appeal, it was not brought before the notice of the court that Teja Singh had passed away. After the disposal of the appeal, the legal heirs of Teja Singh filed an appeal to get impleaded in the appeal for an opportunity of a hearing. This plea of the legal heirs of Teja Singh was accepted by the Supreme Court, which permitted the counsel for the newly added respondents to present their submissions and arguments.

Laws involved in Bhagat Ram vs. Teja Singh (2001)

Section 14 of the Hindu Succession Act, 1956

Section 14 of the Act states that when a female Hindu owns a property during her lifetime, it is to be treated as her absolute property.

The sub-section (1) of Section 14 states that when a female Hindu possesses a property, irrespective of whether that property was acquired by her after the commencement of this Act or prior to the enactment of this Act, she will be regarded as the full owner of that property instead of a limited owner.
The sub-section (2) of Section 14 states that the rule laid out in sub-section (1) of Section 14 will not be applicable where the Hindu female acquires property in the form of a gift or as per the will or any other instrument. Moreover, the preceding rule given in sub-section (1) will not be further applicable where the Hindu female acquires property under a decree or order issued by the civil court or where the property is given to her under an award where the terms of decree, instrument, will, order, award or gift are such that they assign a restricted estate in the concerned property.

The objective behind enacting the Act was to order a balance between the property rights of male and female Hindus. Section 14 of the Act converted the limited ownership held by a female Hindu to absolute ownership, empowering her to dispose of the property as per her wishes. Section 15 of the Act is the first statutory enactment which provides for succession of the property of an intestate female Hindu. The provisions of Section 15 are not applicable to the property held by a female Hindu as a limited owner under Section 14(2) of the Act.

The Supreme Court, in the case of Seth Badri Prasad vs. Smt. Kanso Devi (1969) held that the word ‘observed’ used in Section 14(1) has to be interpreted in the widest possible manner. This should be done to include the nature of the explanation attached to Section 14 of the Act.

The Supreme Court in the case of Bai Vajia (Dead) by LRs. vs. Thakorbhai Chelabhai & Ors. (1979) observed that the provisions of the Act were enacted to ensure the equality of sexes and to elevate women from a subservient position in the economic field. The Act endowed the female Hindus to enjoy and dispose of their property as per their desires. This step removed the limitations imposed upon female Hindus by a male-dominated society.

In the case of Debabrata Mondal & Ors. vs. State of West Bengal & Ors. (2007), a female Hindu was granted a heritable lease for a term of 999 years. She married a widower who had sons in his prior marriage. The female Hindu died issueless in 2002. During her lifetime, she made an express representation to the government that her stepsons should not get the land after her death. The Calcutta High Court held that despite her express representation, her stepsons are the heirs to the female Hindu and will fall under the category of “heirs of the husband”.

The Supreme Court in the case of V. Tulasamma & Ors. vs. V. Shesha Reddy (Dead) by LRs. (1977) held that Section 14(2) is in the nature of an exception to Section 14(1) and, hence, should be construed strictly in order to ensure that the reformative flow of Section 14(1) may have only a few obstructions.

In the case of Jagannathan Pillai vs. K. Pillai & Ors. (1987), the Supreme Court observed that Section 14(1) of the Act does not support the idea that a Hindu female should be in actual physical or in constructive possession of any property on the date of the coming into operation of the Act. Once it is proved that she was in possession of the property at the time when the requisition regarding the title of property arises, in the eyes of the law, the property will be held by her as “full owner” and not as limited owner.

In order to enlarge the ambit of Section 14, the legislature provided an Explanation to the section. The Explanation makes it clear that Section 14 encompasses every kind of acquisition of property. It includes the acquisition of property by inheritance or partition or in lieu of maintenance or arrears of maintenance or by gift, among other instruments. However, a widow who remarried before the commencement of the Act will not get the benefit of Section 14(1) by virtue of the Hindu Widow Remarriage Act, 1856.

In order to attract Section 14(1) of the Act, the female Hindu must acquire the property as an heir. When a female Hindu acquires a property as an heir, she acquires it absolutely. However, while acquiring a property through a gift or other transaction, if any restrictions have been placed on her right, these restrictions will have effect in the view of Section 14(2) of the Act.

Section 15 of the Hindu Succession Act, 1956

Section 15 of the Act talks about the general rules of succession that apply to females who are Hindus.

The sub-section (1) of Section 15 states that when a female Hindu dies without making a valid will or without giving instructions about who will be receiving her properties, her properties shall be passed as per the rules that are stated in Section 16 of the present Act.

Sub-clause (a) of sub-section (1) states that the property of the deceased female Hindu will be given primarily to her daughters or sons. The sons and daughters are inclusive of the offspring of any of her children that are already dead, or she outlived. Moreover, her property will also be passed on to her husband in addition to the members discussed before.
Sub-clause (b) of sub-section (1) states that people second in line to receive the property of a dead female Hindu will be heirs of her spouse, meaning the people who are legally entitled to receive the property of her husband.
Sub-clause (c) of sub-section (1) states that people third in line to receive the property of a dead female Hindu will be her parents, meaning her father and mother.
Sub-clause (d) of sub-section (1) states that people fourth in line to receive the property of a dead female Hindu will be heirs of her father, meaning people who are legally entitled to receive the property of her father.
Sub-clause (e) of sub-section (1) states that lastly, people fifth in line to receive the property of a dead female Hindu will be heirs of her mother, meaning people who are legally entitled to receive the property of her mother.

(2) The sub-section (2) of Section 15 states that in spite of what is laid out in sub-section (1) of Section 15, the following will be applicable

Sub-clause (a) of sub-section (1) states that in the case of property that the dead female Hindu had inherited from her father or mother where the dead female Hindu does not have any living son or daughter or does not have offspring from the son or daughter who died during her lifetime, the said property will not pass in the manner that has been specified in sub-section (1) but shall pass upon the heirs of the father meaning people who are legally entitled to receive the property of her father.
Sub-clause (a) of sub-section (1) states that in the case of property that the dead female Hindu had inherited from her husband or her husband’s father, where the dead female Hindu does not have any living son or daughter or does not have offsprings from the son or daughter who died during her lifetime, the said property will not pass in the manner that has been specified in sub-section (1) but shall pass upon the heirs of the husband meaning people who are legally entitled to receive the property of her husband.

In the case of State of Punjab vs. Balwant Singh & Ors. (1991), a Hindu female inherited property from her husband. She died intestate without any issue. Also, there was no heir from the side of her husband. The grandson of the Hindu female claimed to inherit the property. The state defended the claim of the grandson. The Supreme Court held that Section 15(2)(b) of the Act provides that the property of an intestate female Hindu shall not devolve upon the heirs as provided under Section 15(1) in the specified order but lent upon the heirs of the husband. This, however, does not eliminate the other heirs, as mentioned under Section 15(1), from inheritance altogether.

The Supreme Court in the case of Sadhu Singh vs. Gurdwara Sahib Narike & Ors. (2006) held that when a female inherits a property as an heir, she absolutely inherits it. When she gets possession of any property by virtue of gift or other transactions and any restriction is placed on her right, those restrictions will have effect as per Section 14(2) of the Act.

In the case of Om Prakash & Ors. vs. Radhacharan & Ors. (2009), the Supreme Court held that in the case of self-acquired property of a female Hindu, Section 15(1) would apply and not Section 15(2). A female Hindu has the option to dispose of her property as per a will. In case she dies intestate, the rules of succession provided by the Act will apply.

In order to regulate the succession of estates of an intestate female Hindu, different and separate rules have been provided under the Act. This separation is based on the source of the acquisition of the property by the intestate female Hindu. If a female Hindu dies without any relation, the property devolves upon the state as an heir, subject to all the obligations and liabilities of the intestate.

Issues raised

For adjudication of the dispute between the parties, the following issues came to be decided by the Apex Court:

Who will inherit the property of an intestate female Hindu without any issue which has been inherited by the deceased female Hindu from her mother before the enactment of the Act?
After a female Hindu’s limited rights convert to absolute ownership over the property, does it alter the rules of succession as provided under Section 15(2) of the Act?

Arguments of the parties

Appellant

The appellant made the following contentions before the Apex Court of India:

The appellant contended that ‘D1’ inherited the property from her mother. Therefore, subsequent to her death, the said property will devolve to her sister ‘D2’ as per Section 15(2)(a) of the Act.

Respondent

The respondent made the following contention before the Supreme Court of India:

The respondent contended that deceased ‘D1’ acquired the property from her mother on 25.12.1951, and during that period, the deceased ‘D1’ only had a limited right over the property. However, according to the provisions of Section 14(1) of the Act, the deceased ‘D1’ became the full owner of the property. Therefore, on her death, the property held by her will devolve upon the legal heirs as per the provisions of Section 15(1) of the Act.
The respondent further contended that prior to the Act, deceased ‘D1’ had only a limited right, but for Section 14(1) of the Act, the property would have reverted to the reversioners, and that limited right converted into a full right. Therefore, the said property shall be treated as the property of the deceased ‘D1’.
The respondent contended that Section 15 of the Act has only prospective operation. Therefore, “any property inherited by a female Hindu” as provided under Section 15(2)(a) of the Act is to be construed as property inherited by a female Hindu after the commencement of the Act.

Relevant judgements referred in Bhagat Ram vs. Teja Singh (2001)

Judgments referred to in the case are discussed as follows:

The matter in Baajya vs. Smt. Gopikabai and Anr. (1978) was a case relating to land in dispute. The original owner of the contested land was G, the offspring of D. Before the dispute could be settled in 1918, G passed away. Upon his death, the land devolved onto the son of G, P. However, eighteen years later, P passed away, leaving a widow, S, who became the owner of the disputed land. Upon the death of S on November 6, 1956, a dispute arose between the parties where the plaintiff stated that since she was the daughter of T, who was the sibling of P, the last male holder of the property, she was the heir as per the section 15 read in connection with Section 2(II)(4)(iv) schedule referred in Section 8 of the Hindu Succession Act, 1956. The defendant argued that since they followed the Mitakshara law, they were the sapindas of the last male holder of the property, P. Considering the arguments, the Supreme Court pronounced that clause (b) of sub-Section 2 of Section 15 will be applicable in this case as S did not bear any child and died intestate. According to the rule, T’s daughter would be the preferential heir to the property.

In the matter State of Punjab vs. Balwant Singh and others (1991), the Supreme Court decided on a similar matter. A female Hindu acquired the property from her spouse before the commencement of the Hindu Succession Act, 1956. However, she passed away shortly after the passing of the Act. Subsequent to her death, in the absence of any heirs, the Revenue authorities proceeded to include the name of the state in the property record as the new owner of the property. Moreover, the husband’s side did not have any heir who could claim ownership of the property. However, the plaintiff stated that since he was the grandson of the brother of the deceased female Hindu, he had the entitlement to succeed to the property. The Apex Court termed the decision of the High Court faulty, where the latter stated that once the female Hindu acquires property, it becomes her absolute property in view of Section 14 and shall be passed on to her heirs as per Section 15(1). The Apex Court pronounced that when a female Hindu acquires the property, she becomes the absolute owner of the property, and a new stock of descent starts from there. In this instance, she leaves any heir who can succeed to the property either under sub-section (1) or sub-section (2) of Section 15. The state cannot acquire the property of the said person.

In Amar Kaur vs. Smt. Raman Kumari and others (1984), the High Court of Punjab and Haryana adopted a contradictory position in relation to the matter in consideration. A spouse of a dead male Hindu acquired the property in 1956. Since the spouse had two living daughters at the time of inheriting the property in question, she gifted the entire property to both of them. The husband of Daughter D1 died before her, and in 1972, D1 died without any offspring. The property of D1 was mutated in the favour of another daughter, D2. However, when the husband of D1 died before D1, he had another wife and son living at the time. Another son of D1’s husband dies while leaving behind his widow and son. The widow and son of D1’s husband’s other son claimed right over the property that was mutated in favour of D2 upon D1’s death. The High Court held that since the estate that D1 held as per Section 14(1) of the Act cannot be said to have devolved on her as per inheritance from her father or mother, Section 15(2) would not apply in this matter and the property of D1 will devolve upon widow and children of another son of D1’s husband.

However, the bench in Bhagat Ram (Dead) by LRs. vs. Teja Singh (Dead) by LRs. (2001) termed the decision of the Single Judge of the Punjab and Haryana High Court to be incorrect and stated that when a female Hindu who has limited ownership becomes a full owner as per Section 14(1) of the Act, the rules of succession that are contained in sub-section 2 of Section 15 will be applicable.

Judgement in Bhagat Ram vs. Teja Singh (2001)

The Supreme Court observed that it is not necessary for the inheritance of the property by ‘D1’ to have been after the commencement of the Act. The intention of the Legislature behind the enactment of the Act is clear that if the property inherited by the deceased female belonged to her parents, then the property will devolve to the legal heirs of the father subsequent to the death of the female. Similarly, the property inherited by a female Hindu from her husband or her father-in-law shall devolve to the legal heirs of her husband. The court observed that it is the source of the inherited property which determines the devolution of the said property.

The Apex Court remarked that the fact that prior to the enactment of the Act, a female Hindu had a limited right and later acquired full inheritance will not alter the rules of succession as prescribed under Section 15(2) of the Act. Even when the limited ownership of a female Hindu converts to absolute ownership as per Section 14(1) of the Act, Section 15(2) will be applicable in those circumstances.

The Supreme Court observed that the source of the inherited property is always crucial, and it would govern the inheritance of the property. If this principle is not followed, then individuals not even remotely related to the person who originally held the property would be entitled to inherit the said property. This would defeat the purpose behind the enactment of Section 15(2), which gives a special sequence of succession.

The Supreme Court held that in the present scenario, Section 15(2) is the appropriate provision to apply in the succession of the property left by deceased ‘D1’.

Critical analysis of the case

The limitation on the power of a female Hindu to dispose of her property has been abolished by the enactment of Section 14 of the Act. Section 14 has enlarged the limited right of a female Hindu over an estate to absolute ownership. Prior to the enactment of the Act, female Hindus were subject to certain limitations regarding the disposal of the estates they owned. Subsequent to absolute ownership, a female Hindu is entitled to dispose of her property as per her preferences. The operation of Section 14 is retrospective as well as prospective in nature.

As per the author, the approach taken by the Supreme Court in this case to decide the inheritance of a property is in concurrence with the intention behind the enactment of the Act. The Supreme Court emphasised on the principle that the property inherited by an intestate female Hindu from her parents should pass to the heirs of her parents and the property inherited by her from her husband should subsequently devolve to the heirs of the husband. This will ensure that the succession of a property of an intestate female Hindu follows a specific sequence in order to prevent any unrelated individuals from inheriting her property.

The author opines that the judgments referred to by the Apex Court while deciding the case provide a nuanced comprehension of the rules governing the devolution of property of an intestate Hindu female. The cases decided by the Supreme Court emphasise the source of inherited property. It provides that the property devolves to the familial line from which it originated. This principle prevents any unrelated individual from claiming his rights to the property. By following this principle, the Court ensured that there is consistency and fairness in inheritance matters.

The approach taken by the Court that the transformation of limited ownership to absolute ownership by virtue of Section 14 of the Act is consequential as it empowers a female Hindu with absolute rights over her property is noteworthy. The ruling of the Supreme Court maintains a balance and concurrency between the decision and the legislative intent of the Parliament behind enacting the Act. The object of the Act is to provide an equitable framework for the succession of property, primarily focusing on the rights of a Hindu female. By adhering to the principles of the Act, the Court ensured that the devolution of the property in the present case is in consonance with the original goals of the Act.

The decision of the Supreme Court that the devolution of a property inherited by a female Hindu depends upon the source of the inheritance is in line with Section 15(2) of the Act. Section 15(2) will continue to be the governing factor in deciding the devolution of property of an intestate female Hindu, even if her limited ownership has been converted to absolute ownership by virtue of Section 14(1) of the Act.

The author observes that the interpretation and application of the provisions of the Act by the Supreme Court reinforces that a consistent approach should be taken in succession of a property left behind by an intestate Hindu female. The primary focus on the source of the inherited property will ensure that a structured sequence of succession should take place. This interpretation of the Court will protect the rights of those individuals who are entitled to claim the property rather than arbitrary devolution of property.

Conclusion

The Apex Court has adopted a beneficial approach in determining that the source from which a female Hindu inherits the property plays a crucial role in dictating the rightful heirs in any given situation. If the Apex Court had failed to elucidate the legal position about the relevant provisions, certain individuals with no familial connection to the intestate female Hindu could have potentially inherited the property. This clarification ensures that the devolution of a property should follow a sequence of succession. This would entirely defeat the legislative intent behind the inclusion of sub-section 2 of Section 15, which lays down a distinctive pattern to be followed for succession in matters of Hindu females dying intestate without leaving any offspring.

Frequently Asked Questions (FAQs)

What is the objective behind the enactment of the Hindu Succession Act, 1956?

The Hindu Succession Act, of 1956 was enacted to amend and codify the laws regulating intestate succession among Hindus.

What is the meaning of intestate succession?

When a male or female dies without leaving a valid will or instructions that determine how the assets of the deceased will be allocated, the process that is followed as per the laws of the religion of the deceased is known as intestate succession.

What is the concept behind the enactment of Section 14 of the Hindu Succession Act, 1956?

Section 14 of the Act encompasses the idea that a female Hindu is the complete owner and has absolute rights over a property that has been acquired by her before or after the commencement of the Act.

What kinds of properties come under the purview of Section 14 of the Act?

Under Section 14, ‘property’ includes both movable and immovable property acquired by a female Hindu by virtue of inheritance, partition, in lieu of maintenance, gift, purchase, or any other lawful means.

Does Section 14 retrospectively apply to properties acquired by a female Hindu before the enactment of the Act?

Yes, Section 14 retrospectively applies to properties acquired by a female Hindu before the enactment of the Act.

Does Section 14 prescribe any exception regarding absolute ownership of a female Hindu over the property acquired by her?

Yes, Section 14(2) provides for the exception of the rule of absolute ownership. It provides that if any property is acquired by a female Hindu by way of gift or under a will or any other instrument which prescribes a restricted estate, the terms of the instrument will prevail.

What is the essence of Section 15 of the Act?

Section 15 of the Act provides for the rules of succession of an intestate female Hindu. It prescribes the order of heirs who will inherit the property of an intestate female Hindu.

How will the property of an interstate female Hindu will be divided if she dies without any issue?

In the absence of any issue, the property of an intestate female Hindu will devolve to her husband. However, if her husband is not any more, then the property will be inherited by the heirs of the husband.

Who will inherit the property of an intestate female Hindu if she has neither any issue, husband, nor any heir of her husband?

In the absence of any issue, the husband and the heirs of the husband, the property of an intestate female Hindu, will be inherited by her mother and father. In the absence of her mother and father, to the heirs of the father. If there are no heirs of her father, then the property will devolve to the heirs of her mother.

Who falls under the primary heirs of an intestate female Hindu under Section 15 of the Act?

Sons and daughters (including the children of any pre-deceased son or daughter) and the husband are the primary heirs of an intestate female Hindu under Section 15 of the Act.

What is the correlation between Sections 14 and 15 of the Act?

Section 14 of the Act bestows a female Hindu with absolute ownership over a property inherited by her. Section 15 of the Act provides for an order of inheritance of the same property by the heirs of an intestate female Hindu. Simultaneously, both Sections provide for ownership and the inheritance of the estate of an intestate female Hindu.

Which religions are governed by the operation of Sections 14 and 15 of the Act?

The Act is applicable to Hindus, Buddhists, Jains, Sikhs and any other person who is not a Muslim, Christian, Parsi or Jew.

Is a female Hindu entitled to dispose of her property through a will without following the order of inheritance provided under Section 15 of the Act?

Section 15 of the Act provides for the rule of succession in the case of a female Hindu who dies intestate. Hence, a female Hindu is entitled to dispose of her property through a will without following the order of inheritance provided under Section 15 of the Act.

References

https://kjablr.kar.nic.in/assets/articles/Hindu%20Succession%20Act.pdf
https://districts.ecourts.gov.in/sites/default/files/sucession.pdf
https://ijcrt.org/papers/IJCRT2304137.pdf
https://www.nujs.edu/wp-content/uploads/2023/07/9.pdf
https://www.tnsja.tn.gov.in/article/11%20Starli%20female%20property%20rights%20article%20-%20corrected.pdf
https://www.allahabadhighcourt.in/event/changingdimensionshindusect620112021.pdf
https://www.nipfp.org.in/media/medialibrary/2020/05/WP_305_2020.pdf
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Kidnapping from lawful guardianship

By

Diganth Raj Sehgal

-

July 24, 2024

This article is written by Khyati Basant and further updated by Pujari Dharani. This article explains the offence of kidnapping from lawful guardianship by elaborating on its essential ingredients, nature and landmark judgements. This article also provides effective and ineffective defences available to the accused. Provisions related to kidnapping under both the Indian Penal Code (IPC) and Bhartiya Nyay Sahita (BNS) have been comprehensively discussed.

Table of Contents

Introduction

Children are the most lovable thing that happens to any parent. Just a small harm to their children cannot even be imagined by the parents. The disappearance of their child, even for some time, haunts them, as do the children kidnapped as they are taken to darkness from safe homes.

The annual report of the National Crime Records Bureau (NCRB) titled “Crime in India” for the year 2022 shows that 83,350 children were reported missing in 2022 and the numbers have increased over the last five years.

Keeping all these in mind, the framers of the Penal Code considered the nature of the offence of kidnapping a grave and serious offence. The offenders will be punished with a higher punishment. This article discusses this offence in detail; let us look into it.

Kidnapping under the Indian Penal Code, 1860

The Indian Penal Code, 1860 (hereinafter mentioned as “IPC”) provided that the act of kidnapping is a criminal offence under the Code. Provisions under Part 5 of Chapter XVI (Offences affecting the human body), namely, Sections 359, 360, 361 and 363 of the IPC deal with the offence of kidnapping and aggravated forms of kidnapping are dealt with under Sections 363A to 374. These provisions will be replaced with Part 4 of Chapter VI of the BNS, which will take effect from 1st july, 2024.

Kidnapping under the Bharatiya Nyaya Sanhita, 2023

Section 137 of the Bharatiya Nyaya Sanhita, 2023 (hereinafter mentioned as “BNS”) deals with the offence of kidnapping. See the table below for a comparative chart of IPC and BNS provisions on the offence of kidnapping.

Offences	Section under the Indian Penal Code, 1860	Section under the Bharatiya Nyaya Sanhita, 2023
Kidnapping	359	137(1)
Kidnapping from India	360	137(1)(a)
Kidnapping from lawful guardianship	361	137(1)(b)
Punishment for kidnapping	363	137(2)

The word “kidnapping” is defined neither in the IPC nor in the BNS. Kidnapping literally means “child stealing,” but the crime was not limited strictly to the taking of babies. It is an aggravated form of improper confinement. In common parlance, kidnapping is the unlawful removal or transfer of an entity and the unjust confinement of the person against his or her will. Although the word “kidnapping” is not defined in the BNS, it provides essential ingredients by which an act would constitute the offence of “kidnapping” of various forms.

Kinds of kidnapping (Section 137 BNS)

Clause (1) of Section 137 of the BNS (Section 359 of the IPC) deals with the kinds of Kidnapping. It says the offence of kidnapping is of two kinds, namely,

Kidnapping from India, and
Kidnapping from lawful guardianship.

Kidnapping from India

As per sub-clause (a) of Section 137(1) of the BNS (Section 360 of the IPC), an act constitutes the offence of kidnapping from India when it fulfils the following essentials.

A person shall be transmitted from India. Such a person may be a major or a minor.
Such transmission shall be beyond the boundaries of India;
Such transmission shall be without the consent of that person or of any person legally authorised to consent to such transmission.

Clause (2) of Section 137 of the BNS (Section 363 of the IPC) provides for punishment for kidnapping from India. The punishment is the same as that of the offence of kidnapping from lawful guardianship.

Kidnapping from lawful guardianship

According to sub-clause (b) of Section 137 of the BNS (Section 361 of the IPC), the offence of kidnapping from lawful guardianship is said to be committed when the following essentials are satisfied.

Taking or enticing away a person;
Such a person shall be a child or an unsound person;
Such taking or enticing shall be out of the keeping of the lawful guardian of that person; and
Such taking or enticing shall be without the guardian’s consent.

The purpose of this section is to protect minors and persons with unsoundness of mind from being exploited and to protect the rights of guardians to have their wards’ lawful charge or custody.

Object of Section 137(1)(b) BNS

In 1965, the Supreme Court gave its observations as to the purpose and object of Section 361 of the IPC (Section 137(1)(b) of the BNS) in the case of S. Varadarajan vs. State of Madras (1965) (hereinafter mentioned as “Varadarajan”). In this case, the accused and the person taken were loving each other. Knowing the same, the father shifted her to a far place, i.e., to her relative’s house. However, she still managed to elope with the accused and move to various places. The question before the court was whether the accused was guilty of kidnapping from lawful guardianship. To know more about this case, click here.

The Supreme Court, in the above-mentioned case, noted that the phrase “taking or enticing” is also found in another provision of the IPC, i.e., Section 498, which deals with the offence of enticing, taking away or detaining with criminal intent a married woman. The Court, in this regard, stated that one cannot blindly and mechanically take the meaning of the phrase “taking or enticing” under Section 498 of the IPC while interpreting the same phrase under Section 361 of the IPC owing to its differences in respect of their objects. The Court, in this way, distinguished the objects behind the said two provisions by stating that the purpose of Section 498 of the IPC is to protect the rights of the husband. In contrast, Section 361 is enacted to protect the rights of the minor or person of unsound mind rather than the protection of guardians’ rights.

However, the Supreme Court, in 1973, took a different stance as to the object of Section 361 of the IPC in the case of State of Haryana vs. Rajaram (1973) (hereinafter mentioned as “Rajaram”). The Court held that the object of Section 361 of the IPC is not only to protect the minor person or person of sound mind from being seduced for immoral and illegal purposes but also to protect the guardians’ rights to have custody or charge over their wards.

Essentials for kidnapping from lawful guardianship under Section 137(1)(b) BNS

Some of the following essentials must be fulfilled to constitute the offence of kidnapping from lawful guardianship.

Taking or enticing away a person

Either the act of taking or enticing away a person by the accused is one of the essential ingredients to constitute the offence of kidnapping from lawful guardianship. The legal meaning of the said words is different from the literal meaning. It is necessary to understand those words and look into the interpretation given by the judiciary on the said words.

Interpretation of the word “taking”

Although the act of “taking” is essential to constitute an offence of kidnapping from lawful guardianship, this word was not defined or explained in the Penal Code. The term “takes” means causing, with or without the use of force to move, escort or fall into possession. Taking does not need to consist of a single act. A whole series of acts could together constitute the act of taking.

Furthermore, it is not necessary to carry out actual physical removal of a person, of minor age or having unsoundness of mind; it is sufficient if the offender persuades a minor or person of unsound mind so as to create willingness in that person to leave his/her house, where he/she was in the custody of the guardian. This was decided by the Supreme Court in the Prakash vs. State of Haryana (2004) and Rajaram cases, where it was stated that the elements of force or fraud are not necessary while the act of taking or enticing is being committed, and persuasion is enough to constitute the act of taking as the offence of kidnapping.

To establish the same by the prosecution, the Supreme Court in the Varadarajan case decided that proper evidence, which proves that the accused at some point before the disputed incident persuaded the person taken, has to be adduced before the court, even if the accused did nothing immediately before the said incident. Thus, to make the accused guilty of his act, which, in law, must amount to “taking.” In V.K. Rajappan vs. State of Kerala (1960), it was noted that the accused must commit an act that may be regarded as the proximate cause of the person leaving the guardian as he did. While commenting on this rule of law, the Supreme Court held in the Varadarajan case that a mere circumstance that the accused’s act was not the immediate cause of the girl leaving the custody of her father would not absolve him if he had solicited her at an earlier stage or induced her to take the step in any way.

On the other hand, if the prosecution did not adduce any evidence establishing their allegations that the accused performed some active role, which can be said to be the element of persuasion upon the minor or unsound person to leave her house, then the court cannot take the presumption that the accused committed the offence of kidnapping only on the basis that such a minor or unsound person met the accused immediately after his/her coming out of the keeping of his/her guardian or just because the accused helped that person in that process of leaving her house. The intricacies of this defence will be dealt with in detail in the later part of this article.

Interpretation of the word “enticing”

The word “entice” involves an idea of inducement or allurement in another through exciting hopes or desires. It means the child is seduced or attracted to follow or go with the offender. The minor’s mental attitude is relevant to the enticement. There is no fixed formula to be followed so as to deem that the accused enticed a person. Enticement can be of various kinds and whether an accused’s act amounts to ‘enticing’ is to be decided by the court considering the particular facts of that case.

When the accused promised a minor girl that he would marry her so that she would leave her house, the Supreme Court regarded this promise as an act of “enticing”, in the case of Moniram Hazarika vs. State of Assam (2004), and, thus, convicted him under Section 361 of the IPC.

Difference between “taking” and “enticing”

The act of taking involves some physical act, though it is not mandatory to have force. Whereas, the act of enticing is to influence or manipulate the mind of the person taken. For “taking”, the mental attitude of the minor is not considered. That is, irrespective of whether the minor is willing or not, the physical act of taking will be completed. For “enticing”, the minor must do some act due to the offender’s inducement to do so; if not induced, the minor would not do such an act.

When is the act of taking complete?

The act is complete only when the minor is out of the legal possession of his/her guardians. When the accused takes the minor away with him, the act of taking is complete, whether he is willing to do so or not. Furthermore, it is not a continuing offence so long as the minor came out of the keeping of his/her guardian.

The distance to which the minor is being taken is also immaterial. The Punjab and Haryana High Court, in the case of Chhajju Ram Maru Ram and Anr. vs. State of Punjab (1968), stated that it is not necessary to consider the distance to which the minor was taken by the courts while deciding whether the accused took away the minor from the keeping of the guardian.

Besides, the distance, even the time period during which the child was out of the custody of the guardian, is immaterial to consider in passing a conviction order against the accused. In State of Rajasthan vs. Babulal (1965), the Rajasthan High Court observed that “no matter what is the duration of the removal of the minor from lawful guardianship, taking away a girl even for sometimes is kidnapping.”

In Deb Prosad vs. King (1950), the Calcutta High Court observed that the act of taking is said to be completed when such a child is taken out of the lawful guardianship and the said act is not a continuing or continuous act.

What does not amount to “taking” or “enticing”

Mere help or assistance to aid the design of the person taken

If an accused merely allowed or even helped a person, who is minor or unsound, in aiding the completion of that person’s design or plan of going out of the keeping of his/her guardian and never to come back home, which was formulated by that person on his/her own free will, and when there is no act of persuasion or encouragement by the accused to fulfil the same, the accused will not be held liable for the offence of kidnapping from lawful guardianship under Section 137(1)(b) of the BNS.

Such acts of help, assistance or facilitation on the part of the accused could not be considered an inducement or persuasion and, hence, cannot be described as “taking or enticing” necessary to constitute the offence of kidnapping from lawful guardianship as decided in the case of Varadarajan. Thus, there is a difference between “taking” and the accused “allowing” a minor to accompany him, as noted by the Orissa High Court in Biswanath Mallick vs. State of Orissa (1995) (hereinafter mentioned as “Biswanath”).

It has also been explained by the Orissa High Court in Biseswar Misra vs. The King (1948) that mere passive consent on the part of an accused to give shelter to the minor does not amount to the act of “taking or enticing” a minor. But if the accused actively brought about her stay in the house by playing on her weak and hesitant mind, then such an act may be equivalent to “taking” the girl within the meaning of Section 137(1)(b) of the BNS.

In Jai Narain vs. State of Haryana 71 Punj LR 688, the person taken on her own free will left her guardian’s house at midnight and the same was not caused by the accused; he neither enticed her to leave the house nor went to her house and brought her from there. Thus, the Punjab and Haryana High Court acquitted the accused of the charges under Section 363 of the IPC.

Thus, the accused will not be liable if he/she did not take any steps, not even persuasion, and it is that minor or unsound person, who, on his/her own free will, came out of the keeping of his/her guardian. For example, when a minor girl leaves her father’s house without any coercion, incitement, or blandness held by a man to her, such that she has gone relatively far from home and then goes to him, it may be his moral obligation to return her to the custody of her parents, but his inability to do so will not amount to an offence of kidnapping. This suggests an offence only exists when the accused “takes” the minor out of the lawful guardian‘s custody. There would be no responsibility whatsoever on the part of the perpetrator for his act of not sending the minor to his/her guardian, or even for not warning her to go back to her home and then sheltering her.

For a better understanding of this aspect, see defences and the landmark case of Varadarajan.

Such a person shall be a child or person of unsound mind

The person who was kidnapped by the offender must be a child or a person of unsound mind. Here, whether the accused has knowledge that the aggrieved person is a child or is an unsound person is immaterial.

Also, the accused will not be liable for the offence of kidnapping if he takes away a person, who is major and is normally of sound mind during a state of unconsciousness that was caused by the accused or otherwise. To know more about this, click here.

Therefore, taking or enticing a person, who is major and has no unsoundness in mind, out of the keeping of the guardian without the consent of such guardian will not fall under the category of kidnapping from lawful guardianship. Although this is not an offence of kidnapping, it may be an offence of abduction as per the facts of that case. To know more about the difference between the offences of kidnapping and abduction, click here.

Who is a child

Section 137(2) of the BNS defines the word “child” as a person who is under 18 years of age.

Previously, since 1949, the IPC, under Section 361, specified the age limit to call a person a minor. It says, in case such a person is a boy, then his age shall be less than sixteen years of age to be called a minor person; if such a person’s gender is female, she is minor until she becomes eighteen years old. Here, there is no one fixed age limit for both genders. However, in BNS, as it simply mentions “child”, we can tell there is no difference between genders.

The accused in the Biswanath case believed a girl to be major by her appearance and took her away from her house. In the trial, he pleaded ignorance of her age. The Orissa High Court denied his plea, held that no knowledge about the minority of age is not a defence and convicted him for the offence of kidnapping.

How to prove the age of the person allegedly kidnapped

If the prosecution is claiming that the person allegedly kidnapped is a child, then it is required to be proved by solid evidence, as the minority of the victims determines the crucial question of whether the accused is liable for the offence of kidnapping. For instance, in Mohan vs. State of Rajasthan (2003), the offence of kidnapping was not made out as the prosecution failed to establish the victim’s minority age at the occurrence of the incident. It is, thus, pertinent to note that, if there is a conflict between medical evidence and documentary evidence and the court cannot conclude which is correct, then the benefit of the doubt will go in favour of the accused.

To determine the age of a person, the following methods are used. The Gauhati High Court, in Taimus Ali vs. State of Assam, 1977 CrLJ (NOC) 243 (Gau), mentioned the following reports as methods to determine the age of the person in question:

Bone ossification tests, by which the age of the bone can be found;
Tests on teeth;
Tests on height and weight; and
Miscellaneous signs.

The Gauhati High Court then observed that “when (the following reports) considered individually, little reliance is to be placed on each individual test; but when taken together, they may offer a fairly reliable means to ascertain the age.”

The prosecutor should be careful in choosing the documents that need to be submitted to the court to determine the age of the victim. Also, it is always suggested to look for any documentary evidence, which has more evidentiary value in these cases, rather than merely relying on oral evidence.

Unlike the Protection of Children from Sexual Offences Act, 2012 and the Juvenile Justice (Care and Protection of Children) Act, 2015, there are no provisions in the BNS explaining how the age of a victim can be determined; it is better to look into the judicial decisions in various cases.

Case	Court’s decision
Sidheswar Ganguli vs. State of West Bengal (1958)	The Supreme Court regarded the birth certificate of the minor girl as a conclusive piece of evidence. However, because this crucial document is not obtained by everyone in our country, the Court stated that the courts or jury, while conducting such a trial, should conclude after going through the facts and circumstances of that particular case and examining the physical appearances of the person whose age is in dispute and evidence before it.
State of Chhattisgarh vs. Lekhram (2006)	The Supreme Court held that, although the school records are admissible to prove the victim’s age, the same cannot be deemed as conclusive evidence and, therefore, requires corroboration with other cogent evidence.
Ramesh Chandra Agrawal vs. Regency Hospital (2009)	The Supreme Court held that a testimony by the doctor as to the victim’s age is not more than a medical opinion which is an expert opinion under Section 39 of the Bharatiya Sakshya Adhiniyam, 2023 (Section 45 of the Indian Evidence Act, 1872) and, therefore, is only of advisory nature.
Dilip vs. State of Madhya Pradesh (2013)	This is a case of rape, where the testimonies of the father of the victim and her teacher as to her age are contrary to that of the school certificates, and, hence, the Supreme Court refused to accept those certificates, stating that those are not solid and material evidence.
State of Madhya Pradesh vs. Anoop Singh (2015)	In this case, the Supreme Court held that the bone ossification tests cannot be the sole evidence for age determination.

Out of keeping of the lawful guardian

Here, we can observe that there are two expressions, namely, “keeping” and “lawful guardian” whose meanings are required to be understood accurately as per the object of the provision, i.e., Section 137 of the BNS, and the intention of the legislature so that we will get to know the true meaning of these expressions for the present purpose.

What is “keeping”

The word “keeping” means within the guardian’s protection or care. The minor need not be in the guardian’s physical custody. It connotes the idea of charge and safeguard, whether real or constructive. A child may not always be in the guardian‘s real keeping, i.e., direct physical custody; as long as the child’s whereabouts are known and the child’s movement is controlled, the child is said to be in the guardian’s keeping. The latter case is the case of constructive keeping. The child is said to be kidnapped when a child is taken to an area outside the circle where the guardian no longer knows the child’s whereabouts nor has any control over the movement of the child.

The Supreme Court, in the case of State of Haryana vs. Rajaram (1973), stated “the use of the word ‘keeping’ in the context connotes the idea of charge, protection, maintenance and control.” Also, the Court noted that the concept of a guardian’s custody appears as if the minor has freedom over his actions and movements; however, the guardian will gain control over the minor if the necessity arises. For example, in the case of Bhagban Panigrahi vs. State of Orissa (1989), the girl, who was kidnapped from a hostel room where the father visited her once, is said to be under the keeping of her father, though the room was rented for the purpose of examination.

An orphan is under whose keeping

Unfortunately, a few children have no guardians to take care of them. Technically, they are under no one’s custody or keeping. Does that mean the kidnapping of orphans is not punished and the kidnappers walk free, taking the plea that such taking of a child was not out of the keeping of a lawful guardian? The answer is absolutely no. Here, it is important to reiterate the object and aim of the provision of Section 137(1)(b) of the BNS, i.e., not just to protect the rights of the minor persons, but also to protect the rights and privileges of their guardians. Therefore, the kidnapping of orphans is also a punishable act under Section 137(2) of the BNS.

In Thakorlal D. Vadgama vs. State of Gujarat (1973), the Supreme Court addressed the question of whether the independent movements of a child are incompatible with the control of the guardian while considering the concept of “keeping”. The Court held that both are compatible with each other. The Court highlighted that ours is a country where many children are subjected to the drudgery of service or slavery and are sent to other states by their parents. Keeping this in mind, if the argument of the accused persons that the movements of these children are not under the control of the guardian is accepted by the courts, then offenders would walk free without being punished for their criminal acts, which would cause grave injustice to those innocent children and their lawful guardians.

In Anop Kunver vs. State of Gujarat (1984) 1 Crimes 44, an orphan in Baroda, who is working in a canteen, is allured by a eunuch that he will get a better working opportunity if accompanied by him. Induced by such allurement, the boy left the job in the canteen and joined the gang of eunuchs, where he was injured by them. The accused in this case argued that the boy is not under the keeping of any lawful guardianship, therefore, one of the essential ingredients of the offence is not present. The Gujarat High Court relied on the holding in the case of Thakorlal D. Vadgama vs. State of Gujarat (1973) and held that the notion of “keeping” is wide enough to include the cases of orphans and any other similar cases.

Who is a lawful guardian

Here, we can observe that the legislature used the term “lawful”, instead of “legal”, knowing that there is a difference between “lawful guardian” and “legal guardian”. All legal guardians are lawful guardians, but not all lawful guardians are legal guardians. The expression “legal guardian” is prevalent in Indian laws like the codified Hindu laws; still, the preference of the term “lawful”, instead of “legal”, implies that the legislature intended to give a wider meaning to the said expression so that any instance of kidnapping can be punished.

An explanation of Section 137(1)(b) provides the meaning of the expression “lawful guardian” to avoid any ambiguity. It is an inclusive definition. It says that the expression “lawful guardian” also includes persons lawfully entrusted with the duty of taking care of or keeping custody of such minors or unsound persons. The following are, thus, said to be the requisites to be satisfied in order to deem a person a lawful guardian of a minor.

The said person has the custody of a minor or an unsound person.
Such custody was acquired by the said person due to the lawful entrustment. Here, lawful entrustment means that the person was entrusted with such custody by the legal guardian, normally the parents of the minor or a person of unsound mind, or persons who are declared as a legal guardian by a competent court. Such entrustment may be expressly conferred, whether written or oral; there can also be implied entrustment.

For example, if a father of a girl asks his friend or a servant to drop the girl off at school, the friend or the servant is said to be a lawful guardian, though not a legal guardian, for the said period and for the said purpose as he was lawfully entrusted by the father with such duty as to the girl.

The courts, by looking at the facts and circumstances of the case and how the parties, especially the person who took the care and custody of the minor or unsound person, conducted themselves in their normal course, will decide whether such a person is a lawful guardian or not.

Now, a doubt may arise: what if the accused himself is the lawful or legal guardian? Would he be liable for the offence of kidnapping? To know what BNS stated and the judicial decisions by courts, click here.

What is “out of the keeping”

From the above-provided explanations, it now understands what keeping means and who is the lawful guardian. We know that the lawful guardian has charge or control over their wards. If such a child came out of such charge or control by the act of the accused, it is said that the accused took the child out of the custody of the lawful guardian. In Arathan Sadasivan vs. State of Kerala (1966), the Kerala High Court stated that the prosecution must provide some evidence proving that the accused committed some positive act that caused the girl to go out of the custody of the lawful guardian.

Without the consent of the lawful guardian

The child’s consent is completely irrelevant and it is the guardian’s consent alone that is taken into consideration because the child is deemed unable to give valid consent. This was held by the Supreme Court in the case of State of Haryana vs. Rajaram (1973).

It is important to note that, if consent by the guardian is given under fraud or misrepresentation, it is said that the consent is not free and, hence, is not a valid consent in the eyes of the law. The convicted party shall also be responsible for the crime, even if the guardian consents after the crime is committed. The Allahabad High Court in Ganesh vs. King Emperor 10 CrLJ 295 observed that the “consent given by the guardian after the commission of the offence would not make it any the less an offence.”

Justice Gajendragadkar, clearly states, in the case of State vs. Harbansing Kisansing (1953), that the mental attitude of the minor is irrelevant in the case of ‘taking’. If the minor girl takes all the necessary steps to leave her guardian, it implies that she does so by her own free will or consent.

Intention and motive are not required

The intention and motive of the accused for the commission of the offence are not essential ingredients to establish the case of kidnapping from lawful guardianship by the accused and the prosecution has no burden to prove the same. This implies that, even if the accused took a minor out of the guardian’s keeping for a good cause, he is still liable for the kidnapping offence. Thus, it should be noted that kidnapping is a strict liability offence, i.e., the accused’s intention is immaterial.

Nevertheless, if the prosecution wants to prove the intention of committing kidnapping on the part of the accused in order to enhance punishment, then such intention can be proved from the circumstances of the case, whether before the disputed incident or after or at the time of the commission of the occurrence.

Nature of offence of kidnapping from lawful guardianship

The First Schedule of the Bharatiya Nagarik Suraksha Sanhita, 2023 (First Schedule of the Code of Criminal Procedure, 1973) provides the nature of the offence of kidnapping from lawful guardianship.

Cognizable

The offence of kidnapping from lawful guardianship is a cognizable offence and the police-in-charge, who received the complaint and lodged a First Information Report (FIR) alleging the commission of the said offence by an accused, is authorised by law to take up the case for investigation and proceed to arrest the said accused even without any approval or warrant from a court of law. Thus, the legislature regarded this offence as serious enough and required immediate action on the part of law enforcement agencies like police officials.

Bailable

The offence of kidnapping from lawful guardianship is a bailable offence and the accused charged with the said offence can apply to the court for bail as a matter of right.

Non-compoundable

Section 359 of the BNSS (Section 320 of the CrPC) specifies which offences are compoundable by whom. Because the offence of kidnapping a lawful guardian is not mentioned under Section 359 of the BNSS, it can be concluded that the said offence is a non-compoundable offence.

Triable by the Magistrate of first class

After an investigation into the alleged offence of kidnapping from lawful guardianship and the submission of a police report by the police-in-charge, the case will be placed before the trial court for criminal proceedings against the said accused. Such a trial court will be presided over by the magistrate of first class.

Importance of investigation

For every offence, a thorough, proper and prompt investigation is crucial in order to catch the offenders before they abscond to a faraway place and save the lives of the victims. Nevertheless, in a kidnapping case, much more promptness with immediate actions is required on the part of the investigation agencies because there is no particular crime scene where Deoxyribonucleic Acid (DNA) traces of the offenders are present and all kinds of forensic sciences can be used to detect the actual offender. In cases of kidnapping, there are just clues and testimonies by the relevant persons and the burden is on the police in charge of the investigation to use their intellectual abilities to find the offender and the place where the person kidnapped was kept. Also, as time passes, the chances of catching the offender and saving the child reduce; this is the reason why quick actions by the investigating authorities are very crucial.

Defences that can be pleaded against the charge under Section 137(1)(b) BNS

If an accused against whom a complaint or an FIR is lodged under Section 137(2) alleging that he/she had committed the offence of kidnapping from a lawful guardian, then the accused, during the trial, can plead guilty or not guilty. If pleading not guilty, then any of the following defences have to be proved by the defence counsel, who was appearing for the accused’s case, beyond all reasonable doubt. However, one should keep in mind that the truth will prevail and, hence, he/she should not mislead the court by unlawful means in order to escape criminal liability despite having committed such a grave offence. On this note, the following are the defences that can be pleaded by the innocent accused who committed no crime.

Good faith

If the accused, charged under Section 137(2) of the BNS, took the child in good faith, believing he/she was entitled to do so, then the accused person is exempted from the criminal liability as provided under the exception clause of the said provision.

To avail of the above-said exemption, the following facts have to be proved by the defence counsel representing the accused.

The accused acted in good faith.
The accused believed either of the following facts.
1. That he is the father of an illegitimate child; or
2. That he is entitled to the lawful custody of such a child.
The accused took such a child out of the keeping of the guardian without his consent for a purpose, which was not immoral or unlawful. If the act of the accused is committed for some immoral or unlawful purpose, then this exemption will not be applied, and the accused will be held liable for his acts.

Because the definition of “lawful guardian” is made wider, it is possible to have more than one person as a lawful guardian for any particular child, unless he or she is an orphan. For example, the father and mother are natural guardians as per the personal laws. There may be persons, other than the parents, who are lawfully entrusted with the custody of the child. Hence, here, lawful guardians are more than one person. Now, a question may arise: what if one lawful guardian kidnaps his own child/ward from the custody of the other? Would the act amount to the act of kidnapping if the lawful guardian at that particular time did not consent to such taking? The answer is no. Thus, if a natural guardian takes or attempts to take away a minor from the custody of such a de facto guardian, there is no offence. In this regard, the following are a few precedents.

In the Court of its own motion vs. Ram Lubhaya & Anr. (1985), since birth, the child’s maternal uncle has custody over such a child. One day, the father, being the natural guardian, attempted to take away the child. This act of taking was held to be not an offence of kidnapping.
In Khyali Ram & Ors. vs. State of Uttar Pradesh & Anr. (1971), the mother was entitled to the custody of her child below seven years old. The accused, i.e., the father of that child, took the child from the mother’s custody without her consent. The Allahabad High Court acquitted the accused of the charges under Section 363 of the IPC.
In Vijay Kumar Sharma vs. State of Uttar Pradesh (1991), the Allahabad High Court highlighted Section 6 of the Hindu Minority and Guardianship Act, which conferred the position or status of natural guardian of a child to the father of that child. In view of the same, the Court held that the natural guardian would not be guilty of kidnapping from lawful guardianship.
Even if such a taking is committed by the third person at the instance of the natural guardian, it does not amount to “taking” and, hence, is not an offence of kidnapping. This was decided in the case of Korban vs. King Emperor (1904).
In Nageshwar Jha vs. State of Bihar (1962), the Patna High Court held, as per Hindu law, that only the father and mother of a child have absolute rights over the custody of such a child. Any other relations, like the maternal uncle’s rights over such a child, will be subject to the absolute rights of the parents. If such relatives, other than natural guardians, remove the child from the custody of the lawful guardian, the relationship will be no defence.
However, if the mother obtained divorce by an order of the court and the biological father of the child took the child from the custody of the child’s mother, the father cannot take on the defence of the natural guardian. The case of State vs. Ramji Vithal Chaudhari & Anr. (1957) with similar facts where the father, who removed the child forcibly was convicted for the offence of kidnapping from lawful guardianship.

Mere help or assistance to aid the design of such a person

It is important to understand one of the Supreme Court’s landmark precedents, i.e., S. Varadarajan vs. State of Madras (1965), where the Court held that it is not just to presume or infer that the accused has committed the offence of kidnapping from lawful guardianship under Section 361 of the IPC if the facts and circumstances of the instant case are similar to the following. (For better understanding, let us take the accused as A and the minor person, who was allegedly taken or enticed out of the keeping of that person’s guardian without the consent of such guardian, as B).

B, the minor person, has already come out of the keeping of his/her guardian;
This was done in pursuance of the minor’s design or plan of not returning back to the guardian’s house
Later, B joined A, the accused;
The accused did either or both of the following acts;
1. A allows to accompany or stay with him/her;
2. A helped or assisted the minor to move from one place to another.

Here, it is pertinent to note that the Supreme Court, in the Varadarajan case, termed the act of the accused in the above facts and circumstances as facilitating the successful completion of the minor’s design or intention; however, it never deemed such acts on the part of the accused to be the offence of kidnapping under Section 361 of the IPC.

Mere unconsciousness does not constitute unsoundness of mind

It was already mentioned before that the aggrieved party, a party who was kidnapped, must either be a child or a person of unsound mind, as provided under Section 137(1)(b) of the BNS. However, the state of unconsciousness in the mind of a person cannot be considered a state of unsoundness of mind in the eyes of the law, especially if such a person is usually of sound mind. For example, a patient who was made unconscious under an anaesthetic given by the doctors for the purpose of performing an operation on him will not be regarded as a person of unsound mind by the courts just because he became unconscious.

In the case of Din Mohammad 1939 20 Lah 517, it was held that the girl, who was made unconscious by the accused by use of datura poisoning, could not be treated as a person of unsound mind and the accused was not convicted for the offence of kidnapping from lawful guardianship under Section 361 of the IPC for taking that girl away from her guardians.

Benefit of doubt

The accused charged with Section 137(2) of the BNS can always plead for the benefit of the doubt and, if the prosecution does not prove the case of kidnapping from lawful guardianship against the accused by establishing every essential beyond all reasonable doubt, then the court will grant the benefit of the doubt. For the same reason, the defence counsel appearing on behalf of the accused must specify to the court what essentials or aspects of the offence in question are not proved by the prosecution.

In Krishna Maharana vs. King-Emperor (1929) I.L.R. 9 Pat. 647, the prosecution, to prove the minority of the girl who was allegedly kidnapped by the accused, submitted the school leaving certificate, instead of the existing proper documents like a horoscope, raising doubt as to the age of the girl. Besides this, the defence counsel also presented two doctors who stated in the trial that the girl was a major. By examining the evidence from both parties, the Patna High Court granted a benefit of the doubt in favour of the accused, as the minority of the girl was not proved by the prosecution beyond all reasonable doubt.

Defences devoid of legal basis

The accused had no ill intention

The provision of Section 137(1)(b) of the BNS clearly says that the intention of the accused is not required to be convicted for the offence of kidnapping from the lawful guardianship and the same was reiterated by many courts in various cases. Thus, pleading that the accused has no intention to kidnap the person taken will go in vain and the conviction will still be upheld, provided all the necessary aspects and essentials are established by the prosecution.

No knowledge about the age of the victim

If an accused defended himself by saying that he had no knowledge about the victim’s age, it would not help him escape criminal liability. Even if such an assumption is bona fide or has a reasonable cause, like if the victim herself or himself overstated his/her age, it will still not absolve the accused from the conviction for the offence of kidnapping; the law regards that the accused committed such an act at his own peril.

R vs. Prince is the landmark judgement in common law where the Court denied the accused’s defence of no knowledge of the girl taken and held that the same ignorance is immaterial in the case of kidnapping. Because the intention of the accused is immaterial in kidnapping cases and the act itself is punishable, the accused cannot plead that he has no knowledge about the age of the victim, i.e., the person who was kidnapped.

In Arathan Sadasivan vs. State of Kerala (1966), the Kerala High Court held that, even if the girl herself lied to the accused by stating her age was more than her actual age, there is still no defence for the accused.

Consent by the victim

It was already mentioned before that whether the victim, whether a child or an unsound person, consented to such kidnapping is immaterial and the same was affirmed by the Supreme Court in various cases. In the Varadarajan case, the Supreme Court clearly stated that, even if the victim is of such age as less than eighteen years old and is mature enough to have consented to the contemplated act of the accused, i.e., taking his/her person out of the keeping of the lawful guardian, such consent is immaterial for the court to decide the conviction under Section 137(2) of the BNS.

Possibility to escape

It would be a bad defence if the accused pleaded that the victim has the possibility, chance or opportunity to escape from such taking away by the accused during or after the incident. This was observed by the Kerala High Court in the case of Dharmarajan vs. State of Kerala represented by the Public Prosecutor (2014).

Aggravated forms of kidnapping under the Bharatiya Nyaya Sanhita, 2023

The aggravated forms of kidnapping are provided under different provisions and prescribed with different punishments because those are not just cases of kidnapping, but also include immoral and unlawful purposes. The table below shows the aggravated forms of kidnapping, their essential ingredients and punishments as provided under the BNS.

Provision under the BNS	Essential ingredients	Punishment
Section 139 BNS (Section 363A of the IPC)	The accused kidnaps a minor;The accused is not a lawful guardian of such a minor; andSuch minor may be employed or used for the purposes of begging	Imprisonment, either simple or rigorous, up to ten years. Along with this, even a fine is imposed on the convict.
Section 140(1) BNS (Section 364 of the IPC)	The accused kidnaps any person, including a minor or unsound person; andSuch kidnapping was done with the intention to murder the victim or to dispose of him/her in such a manner as to be put in danger of being murdered.	Life imprisonment or rigorous imprisonment of up to ten years. Along with this, even a fine is imposed on the convict.
Section 140(2) BNS (Section 364A of the IPC)	The accused kidnaps, abduction or detains any person;This Act was done by the accused with the intention to ransom;Later, the accused threatens or causes death or hurt to the victim. It also includes reasonable apprehension of the said harm by the accused’s conduct; andThe above-said act is committed to compelling the government or any foreign or any international organisation or any other person to do or abstain from doing any act or to pay a ransom.	Death sentence or life imprisonment. Along with this, even a fine is imposed on the convict.
Section 140(3) BNS (Section 365 of the IPC)	The accused kidnaps or abduction any person; andSuch an act was committed with the intention to secretly and wrongfully confined that person	Imprisonment, either simple or rigorous, up to seven years. Along with this, even a fine is imposed on the convict.
Section 87 BNS (Section 366 of the IPC)	The accused kidnaps or abduction any woman, whether married or unmarried;Such an act is committed with the intention to-To compel her to marry any person, orTo force or seduce her to illicit IntercourseSuch women have no will for Such marriage or illicit Intercourse.	Imprisonment, either simple or rigorous, up to ten years. Along with this, even a fine is imposed on the convict.
Section 140(4) BNS (Section 366A of the IPC)	The accused induces a minor girl to come out of a place or to do any act; andSuch inducement is made with the intention to force or seduce her to illicit intercourse with another person.	Imprisonment, either simple or rigorous, up to ten years. Along with this, even a fine is imposed on the convict.
Section 141 BNS (Section 367 of the IPC)	The accused kidnaps or abducts any person; andSuch an act is committed with the intention of subjecting such a person to grievous hurt, slavery or unnatural lust.	Imprisonment, either simple or rigorous, up to ten years. Along with this, even a fine is imposed on the convict.
Section 142 BNS (Section 368 of the IPC)	The victim has been kidnapped or abducted; andThe accused, knowing this fact, conceals or confines the victim.	Punishment is the same as if he kidnapped or confined the victim.

Landmark judgements

S. Varadarajan vs. State of Madras (1964)

In this case, the house of the minor girl, Savithri, and the house of the accused, S. Varadarajan, who is the appellant in the instant case, are adjacent to each other. Savithri and Varadarajan frequently used to chat with each other. The same was observed for quite some time by her sister, Rama, who then asked the reason for such talking for which the minor girl revealed her wishes to marry him. Her father, S. Natarajan, was an Assistant Secretary to the Government of Madras in the Department of Industries and Co-operation. So, to keep his daughter, Savithri, as far from the appellant as possible, kept her in his relative’s house on 30th September 1960. The next day, on 1st October 1960, Savithri came out of the house and called the accused and asked him to meet her at a particular place. After the meeting, they both planned to marry in the register’s office and, accordingly, registered their marriage. Later on, the couple moved to various places.

It was at the Supreme Court that the appeal by Varadarajan was heard on a point of law. The crucial issue that was raised before the Court was whether the accused was guilty of his act in which the minor alleged to have been kidnapped by the accused person luckily abandoned her father’s safety and was able to realise the full meaning of what she was doing, thereby joining the accused willingly. To decide the accused’s conviction, the Supreme Court first has to resolve the issues regarding the interpretation of the phrases “keeping of the lawful guardian” and “out of the keeping”.

A critical study of the Supreme Court’s decision-making ratio in this case reveals that a person would not be guilty of an abduction offence if he only played a part that facilitated the fulfilment of the minor girl’s intention to leave the house of her guardian or the house where her guardian had kept her. The Court distinguished between “taking” a minor girl from “merely allowing her to accompany him”. The Court noted that “taking” or seducing a minor out of keeping a lawful guardian is an essential ingredient of the kidnapping offence. On Savitri’s part, there was no suggestion she left her father’s home or her relative’s house at her lover’s instance. Also, as per Justice Mudholkar, a senior graduate, who had lived in a metropolitan city, was not an unsophisticated person and was much more able to think for herself and act independently than maybe an unlettered rural person.

The Court further observed that, by complying with her wishes, Varadarajan can not be said to have taken her out of the keeping of her lawful guardian by any stretch of the imagination. After the said incident, both Varadarajan and Savitri lived as husband and wife and visited various places; there was no suggestion in Savitri’s evidence that she had been made to accompany him with threats or blandishment administration. The fact that she accompanied him all along was quite consistent with Savitri’s own desire to be his wife, in which, of course, the desire to accompany him wherever he went was implicit.

In these conditions, the Court found nothing on which to conclude that Varadarajan had been accused of “taking away” Savitri on her father’s holding. No doubt, the part he played could be considered to have facilitated the fulfilment of the girl’s intent. That part, however, falls short of the inducement of a minor to slip out of her lawful guardian‘s custody and, thus, does not amount to “taking”.

Consequently, the true import of this decision appears to be that the accused must be instrumental in the formation of an intent in the mind of the minor to leave the guardian in order to be punished for the offence of kidnapping.

State of Haryana vs. Raja Ram (1973)

In this case, the main accused seduced the victim, a girl of 14 years old, to come out of her parental home and leave with him. Knowing this, the father of the girl warned the accused not to enter his house and that he should never talk to the girl. Because there was no way to approach her, the accused started sending letters to the girl through the respondent, Raja Ram. One day, Raja Ram brought her to his house, and the girl left with the main accused.

From the facts, it can be understood that the respondent is not the main accused who enticed her. However, Raja Ram is the medium or means by which the design of the main accused was achieved. So, the issue before the courts is whether Raja Ram, the respondent in this case, can be convicted under Section 361 of the IPC. The Trial Court convicted him and the High Court acquitted him. The case, on appeal, came before the Supreme Court.

The three-judge Supreme Court bench clearly and in a detailed manner explained the terms “takes” and “entices” and this interpretation was still significant for the kidnapping cases. The Court, then, gave a verdict stating that the conviction by the Trial Court was correct and set aside the High Court’s decision.

Thakorlal D. Vadgama vs. State of Gujarat (1973)

The accused, in this case, would usually visit prostitutes. One day, he saw a girl of sixteen years old as a prostitute. He took her, without knowing that he was married and her husband was alive, to his house so that she could live with him. The accused was charged with Section 361 of the IPC. The matter came before the Supreme Court, where the Court held that the accused’s charge failed as the girl, allegedly to be kidnapped by the accused, was not under the custody of her husband, but was living with the prostitutes. In this case, the Court observed that the word “takes” does not require any element of force, whether actual or constructive.

Kuldeep K. Mahato vs. State of Bihar (1998)

In this case, both the accused and the victim, a child, were living in the same village. The accused had allegedly eloped the victim when he went to a market and raped her. For the elopement, the accused first compelled the victim to sit in a tempo and kept her silent using a dagger. An FIR was lodged against the accused under Sections 363, 366 and 376 of the IPC. The defence argued that the victim of her own free will came with the accused. However, the prosecution proved how the victim was threatened in tempo by presenting oral evidence. The Supreme Court upheld the conviction under Section 363 of the IPC.

Ashok Kumar Seth vs. State of Orissa (2003)

In this case, the wife left her in-laws’ house and started living in her parents’ house. Later, the husband, the accused, after entering his father-in-law’s house, took his own son out of the custody of his wife. The husband was charged with Sections 363 and 452 of the IPC. The Orissa High Court found that the husband was not prohibited specifically by any court and, thus, held that the accused prima facie is not guilty of the offence of kidnapping from lawful guardianship as he was a natural guardian to that minor child as per Hindu law. However, the cognizance of Section 452 of the IPC was maintained.

Conclusion

Though the BNS did not define the word “kidnapping”, the offence of lawful guardianship was clearly defined and appropriately prescribed the punishment. The judiciary clarified and gave apt interpretations whenever the issue of the interpretation of many phrases in the said definition was brought before the courts because of which the ambiguity and vagueness were erased.

The word “taking” can be interpreted to include all cases of a person’s indirect inducements to affect the minor’s intent to leave the guardian’s place. Also, by providing that the “mental attitude of the minor is irrelevant in the case of taking,” recognizes that minors are unable to make an independent judgement in respect of their actions. In this way, the courts interpreted the phrases in order to protect the rights of children and guardians and punish the offenders for their criminal acts.

Frequently Asked Questions (FAQs)

Whether the common law requires the element of intention for constituting the offence of kidnapping?

Under English law, the offence of kidnapping was provided under Section 55 of the Offences against the Person Act, 1861. However, the offence, under common law, is called “child stealing” and will be held liable for misdemeanour. The essential ingredients of the offence as provided under Section 55 are:

The accused took an unmarried girl by unlawful means.
The age of such a girl shall be below sixteen years.
Such taking shall be out of the possession of the girl’s father and mother.
The father and mother of the girl did not consent to such taking.

If all the above are proven, the accused will be held guilty of a misdemeanour as per the said provision.

Furthermore, there is no ingredient as to the intention of the accused in the above-mentioned essentials. Thus, it can be understood that this wrong can be punished even though the accused has no intention to commit such an offence. This was held in the case of R vs. Prince (1875), where a girl, who was in fact less than sixteen years of age, was taken away by the accused without the consent of her parents. The accused argued that he bona fide believed that she was eighteen years old, as informed by the girl to him and pleaded that he had no intention to commit this wrong. The Court denied his plea and held that a person shall be punished for his misdemeanour even though he/she believed, or had grounds for believing, that the girl so taken was more than sixteen years of age.

Therefore, the offence of kidnapping is such a crime that it does not require mens rea and the wrongful act itself will be punished, though the element of mens rea is one of the essential elements of any crime. This is because of the severity of this criminal offence.

Whether forcible kidnapping recognised by custom be punishable under Section 137(2) of the BNS?

As per customs in the Kandha tribe, the forcible kidnapping of a girl by a man and then marrying after obtaining complete consent from either side of families is one of the recognised forms of marriage. The accused in the case of Dutta Pradhan & Ors. vs. State of Orissa (1985) belong to this Kandha tribe; he forcibly kidnapped a married girl without her consent from her lawful guardian and, then, performed a marriage with her for which families of both bride and bridegroom agreed. The Orissa High Court observed that, if he permitted such a custom, then a serious offence of kidnapping is said to be legalised and, thus, upheld the conviction.

Can any person who has custody of the child be a lawful guardian for the purpose of Section 137(1)(b) of the BNS?

As per the Explanation given under Section 137(1)(b) of the BNS, a person, who has the care and custody of a minor person, is said to be a lawful guardian of that child provided he must obtain such custody by a lawful entrustment which is sanctioned by law. It is not necessary that the person have a duty or obligation to take care of that child but, if such custody was obtained by an unlawful or illegal means, then such person cannot fall under the category of lawful guardian for the purpose of Section 137(1)(b) of the BNS.

What is the difference between offences under Sections 87 and 84 of the BNS?

Section 87 of the BNS deals with the offence of kidnapping a woman to compel her marriage, illicit intercourse, etc; whereas, Section 84 of the BNS deals with the offence of taking or enticing a married woman. Though the ingredients under Sections 87 and 84 seem to be similar, both are different offences and Section 84 has a few more ingredients which are absent in Section 87. The additional ingredients, which are not found in Section 87, are as under:

The woman, who was taken or enticed by the accused, was a married woman; and
The accused have knowledge about this fact while committing the offence of kidnapping.

On conviction under Section 87 of the BNS, imprisonment, whether simple or rigorous, for a period up to ten years, along with a penalty, will be imposed on the convict. While, for the offence under Section 84 of the BNS, the punishment is either imprisonment of either description for a period up to two years or a fine or both imprisonment and fine.

References

https://lawctopus.com/clatalogue/all-you-need-to-know-about-kidnapping-and-abduction/
https://theprint.in/india/more-than-47000-children-missing-in-india-71-are-girls-shows-ncrb-data/1880048/
https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1373&context=nlsir
“The Indian Penal Code” authored by Ratanlal and Dhirajlal.
“Indian Penal Code” authored by R.N. Saxena.

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Mohammad Shah vs. Fasihuddin Ansari & Ors. (1956)

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July 24, 2024

Islamic-Law-Law-of-the-Muslim-World-eJournal.-June-14

This article is authored by Isha Garg. It discusses in detail the ‘long-standing’ dispute between the parties concerning the mosque, commonly known as Kothwali Masjid. It discusses the background of the case along with the facts, issues raised, legal principles involved, precedents of other courts, and the court’s judgement. It highlights various concepts such as the doctrine of waqf by usage, peaceful possession, and the limitation of mutawali’s power, etc.

Introduction

India is a land of vibrant diversities, where multiple religions coexist. Each religion has its own beliefs and practices. Although disputes often arise between individuals of different faiths, conflicts can also occur among people of the same religion over religious matters. Sometimes, these disputes become so grave and contentious that they necessitate legal assistance from the court of law. In India, the judiciary has the authority to interpret religious laws and to make decisions that are fair and just. Without legal intervention, religious disputes may escalate to violence and social disruption in society. One such dispute arose within the Muslim community. The conflict, involving a section of the Muslim community and Gulabshah, a Muslim, started in the year 1880 regarding the ownership and management of a mosque and its adjoining lands. It continued for many years and came before the Supreme Court of India in 1952. The case of Mohamad Shah vs. Qazi Fasihuddin Ansari & Ors. (1956) is a landmark judgement, especially in the context of waqf and peaceful possession. It highlights various principles under Mohammedan law, such as waqf by user, public and private waqf, and peaceful possession. This judgement is based on the historical context and the intention of the parties to the dispute, not merely on the legal technicalities.

Details of the case

Name of the case: Mohamad Shah vs. Qazi Fasihuddin Ansari & Ors.
Case number: Civil Appeal No. 225 of 1952.
Equivalent citations: AIR 1956 SC 713, 1956 SCC Online SC 81.
Court: The Supreme Court of India.
Bench: Hon’ble J. Vivian Bose, J. Syed Jafer Imam, and J. Chandrasekhara Aiyar.
Author of the judgement: Vivian Bose, J.
Parties to the case
- Appellant: Faqir Mohamad Shah.
- Respondents: Qazi Fasihuddin Ansari.
Date of Judgement: May 9, 1956.

Background of the case

The conflict was regarding the mosque, which was known as the Kothwali Masjid in Jabalpur. It was built in 1681, around 200 years before the conflict initially arose between the parties to the dispute. In the year 1880, it was discovered that the compound in which the mosque was constructed was originally the Takiya of Faqir Miskeen Shah, who was the great-granduncle of Mohamad Shah, the present defendant. One of his disciples, Patwa Sukhlal, a Hindu, revered Faqir Shah so deeply that he constructed a mosque on the site of Takiya in his honour. Since then, the takiya, the mosque, and the house opposite the mosque (that is, the present imambara) have been in the possession of Miskeen Shah and the family of the defendant, Mohamad Shah.

Over time, the defendants made additional constructions that formed adjuncts to the mosque. Gradually, the whole property, including the original mosque, was used by worshippers for reciting prayers. Thus, it was asserted by the people of the Muslim community that the mosque and its extended portions were public property used for religious purposes. Before the institution of the present suit in 1936, a similar issue was addressed in the 1880 suit.

Facts of Mohammad Shah vs. Fasihuddin Ansari & Ors.

On August 12, 1936, the present suit was instituted by the plaintiff, Fasihuddin Ansari, representing a section of the Muslim community of Jabalpur regarding the ownership and management of the mosque and its adjoining lands.

According to the plaintiff, the masjid proper belonged to the Sunni Muslims in Jabalpur. Faqir Mohamad Shah, the defendant, was appointed as Mutawali (a caretaker of the waqf property) by the District Court of Jabalpur on August 3rd, 1927. He additionally pleaded that the land and other buildings adjacent to the mosque were part of the masjid proper. On the contrary, the defendant asserted ownership of his property.

Therefore, the plaintiff filed the suit for a declaration that the said property was a waqf property and that the defendant was only a Mutawali or trustee of the property. The claim of the plaintiff was dismissed by the trial court. On appeal before the High Court of Nagpur, the court reversed the decision of the trial court. Therefore, the defendant, aggrieved by the decision of the High Court, filed an appeal before the Supreme Court of India.

Issues involved in the case

The issue of this case revolved around the possession and ownership of masjid property, which originally belonged to the ancestors of the defendant.

The following were the issues raised in this case:

Whether the masjid property and its adjoining lands are waqf property for public religious purposes or is it the private property of the defendant?
Whether the principle of res judicata applies in this present case?
Whether the present suit is barred by the limitation under the Limitation Act of 1963?

Laws and precedents involved in the case

Concept of Waqf

Waqf is a concept that is provided under Islamic law. Waqf means ‘detention’ according to its dictionary meaning, but as per legal terms, waqf means the permanent dedication of property by a Muslim for religious, pious, and charitable purposes. In waqf, the property is permanently dedicated to God. The management of waqf property is in the hands of Mutawali, a caretaker. He has no authority to transfer waqf property to any person. He is merely an administrator of the property.

The Muslim law does not prescribe any particular method of creating a waqf. Typically, the property is dedicated to waqf in the following ways:

By will: This type of waqf is also known as testamentary waqf, which involves the dedication of property through the provisions of the will. This becomes effective after the death of the person who is creating the will, a waqif.
By the acts of the parties: It is also known as the inter-vivos creation of waqf. Waqf is created by the voluntary act of waqif. It becomes effective during his lifetime, that is, immediately upon the declaration or creation of the deed.
By Usage: Waqf is established through long-standing custom and usage rather than a formal deed or will. There is no express dedication of property to a waqf, but certain properties or assets used by the public for religious and charitable purposes over an extended period lead to their acceptance as waqf.

In the landmark case of Sardar Syedna Taher Saifuddin vs. The State of Bombay (1962), the Apex Court considered the past usage of properties while asserting their waqf status. The court emphasised that waqf might be established by usage if the property is used for philanthropic and religious purposes over a long period of time, coupled with acceptance by the community. A similar view was taken by the Andhra Pradesh High Court in the case of Sayyed Ali vs. A.P. Waqf Board (1998).

In a suit where a question arises as to whether a property belongs to waqf, the burden of proof lies on the person claiming it as waqf property. The burden is upon the plaintiffs to prove that the entire property is subject to waqf. This principle was acknowledged in the case of Abdul Ghafoor vs. Mohammad Kassam (1967).

Office of Mutawali

A mutawali is the manager or caretaker of the waqf property. He is not the owner of the property. Therefore, he cannot transfer the property by sale, mortgage, lease, gift, etc. except with the permission of the court. He is responsible for the management and supervision of the waqf property.

Mutawali, being a possessor of the property, is not allowed to set up a title adverse to the owner, that is, Almighty, or be permitted to make a gain out of trust for his benefit.

Normally, the concept of adverse possession allows a person to claim a title adverse to the owner if he enjoys peaceful, continuous, and open possession without the permission of the owner. However, Mutawali cannot claim adverse possession against the waqf because he stands in fiduciary capacity and is already in possession of the property as part of his duties. He has to manage property for the benefit of the beneficiaries.

Precedents referred to in the case

The court in the case of Sabir Ali Khan vs. Syed Mohd. Ahmad Ali Khan (2023) reiterated that the Waqf Act of 1995 provides that, except Mutawali, any other person can acquire the waqf property by adverse possession. The court also determined that the beneficiary of a waqf property is not a stranger to the waqf property, and in the case of adverse possession, the possession must be hostile to the real owner, who is god in the case of waqf property.

In the case of Menakuru Dasaratharami vs. D. Subba Rao (1957), it was pointed out that it is not necessary that property be dedicated to charity by any instrument. But also, it can be determined by the cogent and satisfactory evidence of the user of the property and the conduct of parties, which may show complete renunciation of private rights.

Judgement of the Supreme Court

The suit by the plaintiff resulted in a stalemate, with no definitive victory or defeat. The parties were ordered to bear their own costs. The Apex Court noted that the present appeal marks the culmination of a series of rancorous disputes that were going on between a faction of the Muslim community in Jabalpur and Gulabshah, along with his son, Faqir Mohamad Shah, a defendant, regarding the ownership and management of the original mosque and its adjoining lands. This conflict started in the year 1880.

Before making the decision in the present case, the court reviewed the details of the suit that was filed in the year 1880 in which the plaintiffs claimed that the original mosque and its adjoining lands were waqf property and further prayed that the new trustees be appointed so that property should be properly managed by the trustees of the mosque.

The Supreme Court found that in the year 1880, it was already declared that the original mosque, built in 1681, was an institution used for public charitable purposes. Therefore, the original mosque was regarded as waqf property.

Since then, Mohamad Shah, a defendant in the present case, has admitted the fact that the original mosque and the land on which it was built were waqf property. However, the dispute over the surrounding land, which was gradually added by the defendants adjoining the original mosque, continued. The defendants persistently claimed the rest of the property as their private property.

The court conducted a detailed analysis of the expansions made to the original mosque, considering the extent of their use and purpose. The additional constructions comprised Room A, a verandah, a platform (chabutra), a courtyard, a urinal and bathrooms, an imambara, shops, etc. surrounding the original mosque.

Rationale behind the judgement

Following are the findings of the court after a thorough examination of the evidence presented before it:

Regarding Room A and a verandah, the court found that initially they were separated from the original mosque, but later on in 1908, the area of the old mosque was expanded, leading to the integration of Room A into the mosque. Since then, the Muslim community has been using it for religious purposes. Therefore, dedication by the defendant was presumed by the court on the basis of waqf by usage.

The area on which the pushtas and minarets were erected formed an integral part of the mosque, as they were constructed within the premises of the mosque. There were no demarcations separating them from the original mosque. The defendant, being a trustee, could not encroach on the estate of the trust. As a result, it was also considered an accretion to the estate of trust property.

As far as Imambara was concerned, it was admitted by the plaintiff’s witnesses that it did not form part of the original mosque. Moreover, the court did not find any evidence of public usage for religious purposes.

The tombs of Miskin Shah and his other family member, Dara Shah, were near the mosque, but the court did not find that they were an inseparable part of the mosque. Therefore, it was indicated by the evidence that the defendants did not intend to dedicate these places to God or make them an accretion to waqf property.

In the case of the yard, the court determined that this part of the property was used by the worshippers to obtain access to the mosque. But no evidence was found of public use for religious purposes.

The Court also noted that though urinals and bathrooms were constructed by the defendants, it was witnessed that they were used by the worshippers who came to attend prayers in the mosque.

The judgement has been issue-wise discussed below: In case of the first issue, the court reached the following conclusions:

Only the old mosque as it stood in the year 1880 and the site on which it was constructed proved to be waqf property.
Room A, shops, chabutras, urinals, bathrooms, and water pipes were declared as waqf property.
The plaintiff’s claim regarding the remaining extensions made by the defendants was dismissed.
However, the court also declared that the worshippers at the mosque had a right to way as an easement right over the yard that was used by them to obtain ingress to the mosque.

Concerning the doctrine of res judicata, the court found that the present case was not barred because the earlier decision of 1880 categorically addressed the status of the old mosque as waqf property. Consequently, in the present suit, the court assumed that the rest was not waqf at that date. Furthermore, additions were made after 1880 litigation, which form part and parcel of the old mosque. Therefore, the court rejected the contention of the defendant that it was barred under Explanation V to Section 11 of the Civil Procedure Code of 1908.

On the point of limitation, the court decided that the no question of limitation applied to the parts of property which were recognised as waqf. Because, according to Section 10 of the Limitation Act of 1963, any property comprising religious and charitable endowments is deemed to be property vested in trust, suits related to trust properties are not barred by limitation. Hence, the court decided the third issue was negative and allowed the appeal.

Critical analysis of the case

In the case of Mohd. Shah vs. Fasihuddin Ansari (1956), the Supreme Court of India reiterated the principle of waqf by user. According to Muslim law, waqf can be created through the express dedication of property by its owner. But sometimes, the property is considered as waqf property even in the absence of a specific endowment. This is the case of waqf by user, which means property is being used for religious or charitable purposes over an extended period.

Secondly, the court emphasised the concept of peaceful possession, where actual, continuous, and peaceful possession can negate the claim of the opposite party. In this case, the court also reaffirmed that the beneficiary of property can claim the title by adverse possession, except Mutawali.

The court in this case noted the delay by lower courts, which was unexplained and unsatisfactory. The appeal took almost 11 years to come before the Apex Court and 20 years since the institution of the suit. It might have profound effects on the community and religious beliefs, impacting both spiritual and practical aspects of religious lives. Delays can postpone the resolution of important religious disputes, which affects the timely and peaceful settlement of conflicts. Until the court reaches a decision, the rights of all the parties involved in the conflicts get frozen, which can exacerbate tensions between religious groups.

Conclusion

The landmark judgement of the Supreme Court of India in Mohammad Shah vs. Fasihuddin Ansari (1956) establishes crucial precedents in the interpretation and application of waqf under Muslim law. The case, which had been ongoing since 1880, revolved around the dispute over the ownership and control of the mosque known as Kothwali Masjid in Jabalpur. In its judgement, the court acknowledged the doctrine of waqf by usage, which holds the dedication of property to waqf without express dedication, as long as it is used for religious purposes. This is a notable shift from the earlier strict interpretation of waqf laws.

Remarkably, the judgement also highlighted the obligation for the courts to carefully ponder the historical facts and intentions of the parties involved in the dispute rather than solely relying on laws and legal procedures. The court also observed that unintentional expressions of unclear and ambiguous meaning cannot be manipulated into admissions against the interest of the party when surrounding circumstances indicate that the party has been persistently asserting the contrary over a long period of time.

The extensive timeline of the case, spanning over 75 years from the initial 1880 suit to the Supreme Court’s ruling, highlights the complexity and delicate nature of waqf related disputes in India. This judgement gave much-needed clarity and guidance for managing such disputes by underscoring the significance of harmonising legal principles with historical contexts.

References

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Secured creditors’ rights and priorities under India’s Insolvency and Bankruptcy Code

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July 23, 2024

This article has been written by Nawvi K pursuing a Remote freelancing and profile building program from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

The Insolvency and Bankruptcy Code (IBC), 2016 is often seen as the absolute game-changer in the modern business environment because it offers a comprehensive framework to deal with the challenges of insolvency and bankruptcy. The primary goal of the IBC is to achieve balanced interest between the parties that are participating in the bankruptcy resolution process. In the process of liquidation, those business debtors and secured creditors who have issued loans that are backed up with security interests have a considerable stake in the liquidation proceedings.

Concerning this process, the IBC has implemented strong measures to protect the rights of the secured creditors to ensure they get their payments on time and are fair during the liquidation. In this article, we aim to examine the critical role played by IBCs in safeguarding secured creditors, especially during liquidation, stressing the rules and methods to prioritise their claims first.

Sections under IBC pertaining to secured creditor’s rights and priorities

According to the sections of IBC:

Section 3(4) defines “charge” as an interest or lien placed on the property or assets of any person or any of its undertakings, as the case may be, as security, and includes a mortgage.
Section 3(10) defines a “creditor” as a person who owes a debt that includes financial, operational, secured, and unsecured creditors, as well as a decree-holder;
Section 3(11) defines “debt” as any liability or an obligation related to a particular claim, that includes financial as well as operational debts;
Section 3(30) defines a “secured creditor” as a creditor in whose favour a security interest has been created;
Section 3(31) defines a “security interest” as a right, title, interest, or claim to a property that is created in favour of, or is provided for, a secured creditor by the transaction that secures payment or performance of an obligation, and includes mortgage, charge, hypothecation, assignment, and encumbrance, or any other agreement or arrangement securing payment or performance of any obligation of any person: provided that such interest doesn’t include a performance promise.

Having said that, it could be inferred that the following will not be exclusively covered under the ambit of security interest: a mere obligation to pay, not being an obligation that is attached to a property; a covenant that requires maintenance of asset-covered (it might include a financial covenant but not a security interest); and a negative pledge or lien.

The definitions mentioned above are a few important sections to understand in this article and this is not an exhaustive list.

Position of law in recognising rights of secured creditors prior to IBC

Prior to the implementation of the Insolvency and Bankruptcy Code (IBC) in 2016, the priority rights of secured creditors over the debtor’s secured assets were governed by various existing laws in India. These laws provided a framework for determining the precedence of secured creditors’ claims in the event of insolvency or default by the debtor.

One of the key laws in this regard was the Transfer of Property Act, 1882. This act established the concept of secured interests in property, including mortgages and charges, and outlined the rights and obligations of secured creditors and debtors. The act specified the conditions under which a security interest could be created, registered, and enforced.

Another important law was the Companies Act, 1956, which regulated the formation, operation, and dissolution of companies in India. The act included provisions related to secured lending and the rights of secured creditors in the context of corporate insolvency. It outlined the process for securing debts against company assets and established the priority of secured creditors’ claims in the event of liquidation.

Furthermore, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, played a significant role in shaping the landscape of secured lending in India. This act aimed to facilitate the securitisation of financial assets and the enforcement of security interests. It provided a comprehensive framework for creating, registering, and enforcing security interests in various types of assets, including receivables, financial instruments, and immovable property.

The cumulative effect of these laws and international norms was that the precedence of secured creditors was well-established in Indian jurisprudence. Secured creditors generally enjoyed priority over unsecured creditors in terms of repayment, and their rights were protected by a robust legal framework. However, the IBC introduced a new paradigm for insolvency resolution, aiming to strike a balance between the interests of secured creditors and other stakeholders in the insolvency process.

The BLRC recognised and pointed out the secured creditor’s priority rights during the drafting of the IBC by suggesting that the first charge-holder should have the power over the claims that were in existence during the formation of the security interest and the same suggestion was incorporated into Section 53 of the IBC, which once again talks about the waterfall mechanism that gives priority to the secured creditor and workmen’s due. However, due to a lack of clarity on the inter se precedence among secured creditors, Section 53 was considered ambiguous in interpreting the first and priority charge-holders over their rights.

On the other hand, Regulation 37 of the Liquidation Process Regulations, provides specific guidelines for secured creditors in the context of liquidation proceedings.

According to Regulation 37, secured creditors have the right to realise their security interest in the assets of the corporate debtor. However, they are required to follow certain procedures and methods as prescribed under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002, or the Insolvency and Bankruptcy (IB) Code, 2016.

The SARFAESI Act provides a framework for banks and other financial institutions to enforce their security interests in assets pledged as collateral for loans. It empowers secured creditors to take possession of the collateral, sell it, or lease it out in order to recover their dues. The Act also includes provisions for the appointment of a receiver to manage and dispose of the secured assets.

On the other hand, the IB Code provides a comprehensive framework for insolvency resolution and bankruptcy proceedings in India. It includes provisions for the protection of secured creditors’ rights and interests. Under the IB Code, secured creditors can file claims against the corporate debtor and participate in the resolution process. They are entitled to receive payment of their dues from the proceeds of the liquidation of the corporate debtor’s assets.

It’s important to note that the methods available to secured creditors for realising their security interest may vary depending on the specific circumstances of the case, the nature of the security interest, and the applicable laws and regulations. Secured creditors are advised to seek legal counsel to ensure that they follow the correct procedures and comply with all relevant requirements when enforcing their security interests in the context of liquidation proceedings.

The amendment of the IBC in the year 2019 also ascertained safeguarding the rights of secured creditors by demanding payments to dissenting financial creditors that are no less than the amount that is owed to them during potential liquidation circumstances.

The same could be observed through a landmark judgement rendered by the Hon’ble Supreme Court in the case of ICICI Bank Ltd. vs. Sidco Leathers Ltd. & Ors. Appeal (Civil) (2006). In this case, the order of priority to claim between the secured creditors in a bankruptcy proceeding is explained. The immovable property of Sidco Leathers Ltd. is the subject of both Punjab National Bank’s and ICICI Bank’s first and second charges, respectively, in this case. The issue emerged when the company was wound up and the official liquidator had been instructed “to release dividends in accordance with Section 529A of the Companies Act, 1956,” which acknowledges secured creditors’ and workers’ claims equally.

However, the bank’s contention was different; it stated that the first charge holder’s claim should proceed over the second charge holder’s claim in accordance with Section 48 of the Transfer of Property Act 1882. The Supreme Court ruled that Section 19(19) of the Recovery of Debt Due to Banks and Financial Institutions Act of 1993 shall override the laws that are inconsistent in taking away the right to property as per Section 48 of the Transfer of Property Act of 1882.

With the above-mentioned case, it could be inferred that the legality of the Transfer of Property as a general law supersedes the provisions of the Companies Act of 1956, i.e., a special law that doesn’t recognise inter-se precedents on charges.

Position of law in recognising rights of security creditors post to IBC

The position of Indian laws is in parlance with that of international laws. The Insolvency Law Committee (ILC) and the Bankruptcy Law Reforms Committee (BLRC) have critically examined the position of the secured creditors, especially during the liquidation process and these reports underline the necessity of a strong insolvency and bankruptcy system for debt financing, which ensures creditors receive the returns they expect on their investments.

As per the Insolvency Law Committee (ILC) reports, Section 52 of the Insolvency and Bankruptcy Code, 2016 (IBC) provides secured creditors with two options for recovering their debts. These options are elaborated as follows:

Realisation of security interest outside liquidation procedures:
- Secured creditors have the right to realise their security interest through foreclosure or enforcement of their security rights without involving the liquidation process.
- This option allows secured creditors to recover their debts by selling or disposing of the collateral securing their loans without going through the formal insolvency resolution process.
- However, secured creditors must comply with the terms and conditions of their security agreements and applicable laws while enforcing their security interests.
Surrender of security interest to liquidation estate:
- Secured creditors can choose to surrender their security interest to the liquidation estate, effectively giving up their claim to the collateral.
- This option is typically exercised when the value of the collateral is insufficient to cover the outstanding debt, or when the secured creditor believes that it is not commercially viable to enforce their security interest.
- Upon surrender, the collateral becomes part of the liquidation estate, and the secured creditor becomes an unsecured creditor for the remaining amount of their debt.

The choice of option depends on several factors, including the value of the collateral, the enforceability of the security interest, and the commercial viability of enforcing the security rights. Secured creditors should carefully evaluate these factors and make an informed decision that maximizes their chances of recovering their debts.

It’s important to note that the IBC also provides for the appointment of a Resolution Professional (RP) to manage the insolvency resolution process. The RP is responsible for evaluating the options available to secured creditors and ensuring that their rights are protected throughout the process. Section 53(1)(b) of the Code states that in the liquidation waterfall, secured creditors who give up their security interest are given the second-highest priority and are entitled to recover their dues in the same way as labourers.

Despite all these ongoing discussions, there has been a persistent question regarding “Whether the secured creditors who gave up their security interest shall be allowed to recover the underlying value of such security interests relinquished or the total debt of the secured creditor?” under section 53(i)(b)(ii) of the code. The review committee for IBC has laid down that the priority for recovery for the secured creditors as per this provision shall only be applied to the value of such security interest that is given up by the secured creditor and this analysis strives to increase the overall value while preserving their security interest.

On the other hand, the BLRC report suggests modifications to the current IBC procedures. A few prominent suggestions include the acknowledgment of operational creditors, including employees and workers who have past due payments. It was also highlighted that liquidation under the new code shall have a time-bound procedure that is irreversible, with operational creditors receiving the payment first, followed by unsecured financial creditors and finally secured financial creditors.

Creation of charge and security interest via rainbow papers and its application

A resolution plan as per the provisions of IBC was pronounced by the Honourable Supreme Court in the case of State Tax Officer vs. Rainbow Papers Limited as a solution to avoid compelled liquidation, which shall satisfy statutory and government dues. The issue arose when the outstanding tax as per the Gujarat Value Added Tax Act was clashing with the IBC’s hierarchy of debt payment post-liquidation. The judgment given by the court highlighted the difference between private secured obligations and government dues by emphasizing that a government institution is not deemed as a secured creditor as per the provisions of IBC. It also threw the spotlight on the prejudice against operational creditors and thereby altered the liquidation waterfall system in order to prioritise statutory dues before government dues. Overall, the judgement puts forward the IBC’s goal in handling the use of the garment in bankruptcy proceedings, which highlighted the necessity for clarification to prevent resolution applicants from compromising the code objectives.

Despite the Supreme Court’s judgement on precisely addressing this issue, there are rows of multiple confusions and questions, as a result of which the Ministry of Corporate Affairs had to publish a discussion paper that attempted to address the intention behind formulating such a definition of security interest by showing that it was done to limit the interest to the cases that arise out of such a transaction. Furthermore, it is pertinent to note that the explanation given by MCA undermines the rainbow papers, as the rainbow papers acknowledge that security interests shall be formed only through legislation.

An international perspective

The changing interpretation of the priority rule for secured creditors by the Supreme Court and various tribunals needs a detailed examination to meet international standards and overcome uncertainty. The soul of IBC could be interpreted to be significantly inspired by the UNCITRAL model and English insolvency laws. The World Bank also recognises the need to maintain uniformity and predictability in terms of preserving the secured creditor’s rights over the collateral. Very importantly, the Doctrine of Equitable Treatment, as underlined in the BLRC, directed the IBC to be consistent with international norms.

Three approaches were laid down by UNCITRAL to deal with the secured creditors:

A group solution approach that talks about establishing a separate class for exclusive creditors.
A hybrid approach that allows unsatisfied creditors to vote in the same manner as unsecured creditors.
The libertarian principles that permit security enforcement without any voting rights. Although the IBC borrows certain libertarian ideas, it treats secured creditors differently throughout the Corporate Insolvency Resolution Process (CIRP).

Other claims are dealt with only in relinquishment situations and it is in accordance with the SARFESI Act that permits that collection in both CIRP and liquidation proceedings; instead of using the group solution approach, it classifies the primary and secondary charge holders in the same manner.

Conclusion

Ultimately, bankruptcy and the IBC of 2016 are important aspects of India’s legal system, particularly concerning how secured creditors are handled in bankruptcy proceedings. Before the implementation of IBC, there was ambiguity concerning secured creditors’ precedence. Following the creation of IBC, judicial rulings and legislative modifications were made to clarify. The evolution of bankruptcy legislation demonstrates a conscious effort to reach a compromise that benefits both sides.
To put it simply, the IBC serves as an example of how India’s bankruptcy laws have evolved via a constant process of modification and change. In order to create a strong and fair insolvency environment, it is critical that stakeholders adhere to legal principles, guarantee clear interpretation, and follow international standards as they negotiate the difficulties of bankruptcy processes.

References

Abdur Rahman vs. Athifa Begum (1998)

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July 23, 2024

This article is written by Titas Biswas. It deals with a detailed analysis of the judgement derived in the case of Abdur Rahman vs. Athifa Begum (1998), which revolves around the concept of Hiba in Muslim Law. This article is exhaustively drafted concerning the case’s facts, background, issues raised, arguments made by the parties, concerned provisions of law, relevant precedents applied, obiter dicta, ratio decidendi, as well as analysis of the judgement.

Table of Contents

Introduction

This article provides an in-depth analysis of the case Abdur Rahman vs. Athifa Begum (1998), the judgement of which is considered to be landmark regarding hiba, i.e., gift under Muslim law. The ratio given under this case has solidified the essential elements and validity of hiba under Muslim law. The case is regarding a property among grandchildren of the common ancestor, namely Mohammed Isahaq Saheb, where the appellants contended that the alleged gift deed is not valid prima facie, whereas the respondents stood up to their positions, denying the contentions of the appellants and stating that such a gift deed is invalid in the eyes of law. The case also concerns inheritance, which was promptly amplified by the High Court.

The Karnataka High Court has reasoned its judgement by examining Muhammadan Law, evidence procured by the parties, and other factual representations as to what amounts to a valid hiba under Muslim law. The Honourable Justice, Mr. Chidananda Ullal, also referred to certain precedents presented by both parties in support of their contentions while advancing their respective arguments.

Details of the case

Case Name – Abdur Rahman vs. Athifa Begum, AIR 1998 Kant 39
Equivalent Citations – AIR 1998 KARNATAKA 39; 1997 (3) KARLJ 570; (1998) ILR (KANT) 1284; ILR 1998) KAR 1284; (1997) 3 KANT LJ 570; (1997) 4 CURCC 453
Case number – 476/1992
Appellants – Abdur Rahman, Amathul Samad and ors.
Represented by – Sri Ilyas Hussain
Respondents – Athifa Begum, Abdul Aleem and ors.
Represented by – Sri Anand Ramdas
Type of the Case – Regular First Appeal
Arising out of Original Suit No. – 3879/84
Name of the Court – Karnataka High Court
Date of the judgement – 26.03.1995
Bench – Honourable Justice, Mr. Chidananda Ullal

Background of the case

Trial Court

The case goes back to the year 1984, when the original suit for partition and separate possession was filed by the plaintiff, Abdur Rahman. They prayed for their heritable share of the suit property and claimed the invalidity of the alleged gift deed, which the defendants denied and contested. The Civil Court of Bangalore, after analysing the evidence and factual presentation, held that the gift was valid as claimed by the defendants and that the plaintiff’s contentions did not hold good. Hence, the suit was dismissed.

High Court

This case was further elevated to the High Court of Karnataka as a Regular First Appeal (R.F.A.) from the dismissal order dated June 30, 1992, passed by the Additional City Civil Judge, Bangalore. This instant appeal was preferred by the plaintiffs, who are now the appellants of the appeal, whereas the Defendants are the respondents.

This article focuses on the judgement given by the Karnataka High Court. Hence, the issues framed by the court are discussed later in the article under a broad title.

Supreme Court

This case has also been committed to the Supreme Court, where the Hon’ble Court held that the Karnataka High Court has exceeded its authority in examining the merits of the case in the absence of the appellant’s counsel. Reversing the ruling given by the Karnataka High Court on August 30, 1996, the Supreme Court in Abdur Rahman’s case held that:

The Karnataka High Court, while exceeding its powers, violated the provision under Order 41 Rule 17, which allows the dismissal of the case on the prima facie absence of the appellant and not on merits.
The case must be directed back to the Karnataka High Court for reconsideration, maintaining balance with the procedural restrictions.

Facts of Abdur Rahman vs. Athifa Begum (1998)

The facts of the case are presented below-

Suit for partition and permanent possession in the Court of Additional Civil Judge, Bangalore

The name of plaintiff No. 1 is Abdur Rahman, who is the husband of Amathul Samad, one of the legal heirs of Amathul Hadi. Respondent no. 1, Athifa Begum, is the daughter of Mariam B1, who is also one of the legal heirs of Amathul Hadi.
Mohammed Isahaq Saheb had two wives. With his first wife, he had M.A. Wasi. With his second wife, he had five children: Amathul Hadi, Amathul Musawir, Mariam B1, Amatus Samad, and Abdul Aleem.

Mohammed Isahaq Saheb (who died in 1935) transferred the disputed property, Schedule ‘B’, to his son from his first wife, namely, M.A. Wasi. Subsequently, M.A. Wasi further bequeathed the disputed property to Amathul Hadi (who is M.A. Wasi’s half-sister) by way of a settlement deed alleged to be a gift deed, executed on March 24th, 1954.
Athifa Begum (respondent No. 1) is the niece of Amathul Hadi, being Mariam B1’s daughter, who is one of the sisters of Amathul Hadi. After Athifa Begum’s mother passed away in 1940, Amathul Hadi raised her as her own daughter. In gratitude for her niece’s devoted care, Amathul Hadi transferred the property listed in Schedule-’B’ through a settlement deed on November 7th, 1975, as a gesture of gift.

Issues raised by the Karnataka High Court

The Karnataka High Court, having reviewed the facts and evidence presented by both parties and analysed the precedents cited in support of their arguments, proceeded to evaluate the following points –

Is the settlement deed dated November 7, 1975, which Amathul Hadi executed in favour of respondent No. 1 (Athifa Begum), regarded as a gift? Furthermore, does it satisfy the requirements for a valid gift as outlined under Sections 149, 150, and 151 of Mohammadan Law?
Do the appellants have the right to seek partition of the disputed property, as claimed in their original suit?
Should the judgement rendered by the Additional Civil Judge Court in Bangalore, be reconsidered and overturned by this Court?

Arguments of the parties

Appellants

The appellants argued that the settlement deed dated November 7th, 1975, executed by Amathul Hadi in favour of Athifa Begum, was deemed invalid and unenforceable under Mohammedan law.
The appellant argued that the deed of gift did not fulfil the requirements of a valid hiba under Principles of Mulla-Mohammaden Law, Edition 20th, which provide that:

There must be a declaration of the gift by the donor.
The gift must be accepted, either expressly or impliedly, by or on behalf of the donee.
There must be delivery of possession of the gift’s subject matter from the donor to the donee, as outlined in Section 150 of the ‘Principles of Mohammedan law’ by Mulla. The provision provides for delivery of possession, either actual or constructive.

The appellants contended that, besides the settlement deed, there was neither acceptance of the gift nor constructive or actual possession of the property. They further argued that the donor/settler herself remained in possession of the disputed property until her death on December 23rd, 1980.
The appellants also contended that the alleged settlement deed did not explicitly demonstrate the transfer of possession to respondent No. 1, nor did it lead to any change in land revenue records in the respondent’s name.
The appellants also contended that they were entitled to acquire half of the ‘B’ schedule property as it belonged to Amathul Hadi, who died childless. As a result, both the appellants and respondents are legally the heirs to the property, which must be equitably distributed.

Respondent

The respondents denied all the claims by appellants that the deed of settlement was invalid and contended that all the essentials were fulfilled, and based on the execution of the deed dated November 7th, 1975, the disputed property was transferred to respondent No. 1, i.e., Athifa Begum from Amathul Hadi and that she was in possession of the suit-property and fulfilled all the tax obligations.
The respondents, by contesting the allegation of the said gift deed being invalid, contended that according to Faizee, in his book ‘Outlines of Muhammadan Law-Faizee’, he mentioned that a gift of the usufruct (the right to enjoy the property) is also considered a valid hiba, commonly known as ‘Ariya’, which is a well-established form of hiba.
The respondents denied the contention by the appellants of non-acceptance of the suit property by claiming respondent No. 1’s presence in the suit-property while Amathul Hadi was alive, indicating a valid acceptance and delivery of possession.

Laws involved in Abdur Rahman vs. Athifa Begum (1998)

Hiba under Mohhamaden law

Section 149 of Mulla-Principles of Mahomedan Law

Section 149 of Mahomedan Law, as found in the predominant and contemporary Muslim codified law, sets forth the following principles concerning the requirements for a valid Gift:

There must be a declaration of such gift by the donor
There must be an acceptance of such gift by the donee, either expressly or impliedly, by the donee or on his behalf by someone else.
There must be the delivery of possession of such property in accordance with the immediate next provision, Section 150.

Section 150 of Mulla-Principles of Mahomedan Law

Section 150 of Mahomedan Law revolves around the delivery of possession, which categorises such delivery into two manners:

Actual Possession – There must be actual possession, i.e., the physical transfer of such property by the donor.
Constructive Possession – This indicates the transfer of the property not physically but in some other manner. To exemplify; delivery of the original deed and other documents to the donee.

Section 152 of Mulla-Principles of Mahomedan Law

Section 152 of the principles of Mahomedan law focuses on the delivery of possession of an immovable property. It states that to validate a gift of an immovable property of which the donor is in actual possession, the donor must vacate the premises with all personal belongings, and the donee must then formally assume possession.

Order 41, Rule 17 of the Civil Procedure Code;

Order 41, Rule 17 of The Code of Civil Procedure, 1908 provides for ‘dismissal of appeal for appellant’s default’ which states that if the appellant fails to appear on the scheduled date or any date kept for adjournment when the appeal is next called for hearing, the Court may order the dismissal of the appeal.

Relevant judgements referred in the case

Mahboob Sahab vs. Syed Ismail & Ors AIR (1995)

The Karnataka High Court relied on this case while affirming the appellant’s arguments. The Supreme Court, in its judgement of this case, held that even though a gift under Mohammedan law does not necessitate it to be in a written format, it therefore does not need to be registered under the Registration Act. However, for a gift to be valid and complete, certain requirements must be adhered to in the transaction:

The donor must declare the gift,
The gift must be accepted either explicitly or implicitly by or on behalf of the donee, and
The donor must deliver possession of the property intended as a gift to the donee.
The donee must receive possession of the property, physically or constructively.

Meeting these essential conditions renders the gift comprehensive and legally valid, particularly in cases involving immovable property, where the donor must entirely relinquish physical control over the subject of the gift.

Judgement of the case

Issue No. 1

The Karnataka High Court, while examining through the evidence and factual presentation regarding issue no. 1, pointed out the following observations –

The court after perusing the settlement deed, discovered that the aim of making a suitable provision for the beneficiary who depends on the settlor is to transfer such property to the beneficiary, where the beneficiary shall hold the property absolutely and free of all encumbrances, charges, and liens. However, during the settlor’s lifetime, she shall retain the right to usufruct from the property and shall also have the right to reside there if she is willing to do so.

It was also observed by the court based on the details listed in Ex.D.2 (perused as documentary evidence of the settlement deed), it is clear that Amathul Hadi did not actually transfer possession of the property to respondent No. 1 as the physical transfer was lacking in the transaction.

Analysing the evidence given by PW1, the Court also held that Amathul Hadi retained usufruct and residency rights during her lifetime but did not transfer actual possession or the document of title at the time or after the settlement’s execution.

The court’s findings included that respondent No. 1 (Athifa Begum) did not contend in her written statement that subsequent to the execution of the settlement deed, she was made an actual possession in its regard. According to her own written statement and disposition of testimony, respondent No. 1 had the land revenue records for the suit property updated with the Corporation of the City of Bangalore only after the death of Amathul Hadi. Similarly, she paid taxes for the subject property only after the donor, Amathul Hadi, had passed away and not immediately after the execution of the settlement deed.
The court after its findings, highlighted that even though the settlement deed was executed in favour of respondent No. 1, physical or constructive/symbolic possession of such property was not made over to her until the demise of the settlor (Amathul Hadi) on December 23rd, 1980. The Court further held that apart from the declaration of the gift, there must be acceptance on the part of the donee (respondent No. 1), which was found to be missing in the settlement deed.

Examining all these, the court found that there was yet another non-compliance with the essential elements of a valid deed – firstly; non-compliance of delivery of possession of the property and secondly; non-compliance of acceptance of such gift.

Therefore, the issue no. 1 framed by the court stood out in favour of the appellants and against the respondents as they failed to validate the settlement deed as a valid gift.

Issue Nos. 2 and 3

The Karnataka High Court, while examining the evidence and factual presentation regarding issues no. 2 & 3, has pointed out the following observations –

The respondents argued in their appeal that the appellants did not challenge the settlement deed, hence, the gift deed cannot be held invalid. The High Court, upon reviewing the facts, noted that while the appellants did not dispute the settlement deed’s validity as a gift deed in their complaint, they rightly sought a share in the disputed property based on inheritance. In the suit for partition and permanent possession, the respondents defended their sole ownership, asserting that the property was transferred to respondent No. 1 via a gift deed.

The court noted that plaintiff No. 1 was Amathul Samad’s husband, with the remaining plaintiffs being their children, who were the appellants in this case. Amathul Samad, one of Amathul Hadi’s four sisters entitled to a share in Schedule-B property, passed her inheritance to her children after her demise in 1982. The Court affirmed that even after plaintiff’s death, the appellants (children of Abdur Rahman and Amathul Samad) validly represented their parents and asserted their inheritance rights under Muslim law while claiming a share in the suit property.

Stating these findings, the Karnataka High Court substantiated the issues . Nos. 2 & 3 in affirmative and in the favour of the appellants, while ordering for the suit to be remitted back to city civil court, Bangalore in order to evaluate issues regarding partition and separate possession. The court also ordered a speedy disposal of the suit, being almost a decade old.

Obiter Dicta

Family law cases frequently pose significant challenges, particularly in areas lacking comprehensive procedural guidelines. In Mohammedan law, such cases mostly rely on precedents, interpretations and commentaries by eminent jurists and scholars.

While deciding the case, The Karnataka High Court has observed the following guidelines that can be referred to as obiter dicta-

The court after assessing the case and procuring key judgements, held that until and unless all the requirements of a valid gift are fulfilled, any settlement deed declaring such gift shall not amount to a valid gift.

The court also considered the argument presented by the appellants, citing the case Mahboob Sahab vs. Syed Ismail (1995), which asserts that under Mohammedan law, an oral and unregistered gift deed may be considered valid. It was observed that under Mahomedan law, hiba is a declaration of affection expressed materialistically, and thus, the non-compliance with registration of such deeds would not invalidate such a gift. However, it also emphasised that failure to fulfil all essential elements, such as actual or constructive possession of the property by the donee, renders such a deed invalid.
The court affirmed the relationship as asserted by the plaintiffs/appellants and concluded that there was no dispute regarding the relationship.
The court prioritised addressing the issues regarding partition and separate possession, which emphasises the importance of inheritance under Muslim law. The plaintiffs and the appellants, who are legal heirs of Amathul Samad, sought partition of the property on the grounds that Amathul Hadi, being childless, could only pass her property to her siblings and further to their legal heirs. The court emphasised the importance of addressing inheritance issues in this case. Therefore, the court held that the claim was right in law and remitted the case back to the City Civil Court of Bangalore to decide on the issues untouched.

Ratio Decidendi

The case provides for the pointers that satisfy as a valid gift-

Essential Conditions of a valid gift

The Karnataka High Court, after analysing various judgements and prevailing Mahomedan law in Mulla’s 20th Edition, derived the following as the essentials of a valid gift.

There must be a “declaration of gift from the donor in favour of the donee (Section 149 of Mahomedan Law).”
There must be “acceptance of such a gift deed by the donee executed by the donor (Section 149 of Mahomedan Law).”
There must be “delivery of possession either physically or constructively (Section 150 & 152).”

Exceptions as to Immediate Delivery of Possession

After assessing various judgements, the Karnataka High Court held that-

If the donor retains the right to enjoy the income from the property or requires the donee to pay the income to a specified person, this does not invalidate the gift as long as the principal property (corpus) is transferred absolutely.
When actual possession is impractical (e.g., when such property is occupied by tenants), symbolic acts of possession, such as transferring title documents or instructing tenants to acknowledge the donee’s ownership, are sufficient.

Absence of any of the essential elements tends to invalidate the gift

The Karnataka High Court substantiated the mandatory presence of all the essential elements constructively, and the absence of any one or more of the essential elements shall amount to invalidating the gift deed. In the concerned case, the Court invalidated the gift deed in confirmation with the absence of ‘acceptance of gift by the donee’ and, ‘delivery of possession by the donee’.

Analysis of Abdur Rahman vs. Athifa Begum (1998)

In the matter of Abdur Rahman vs. Athifa Begum (1998), the Karnataka High Court addressed significant facets of Muslim law concerning hiba. The contention arose regarding a property gifted by Amathul Hadi to Athifa Begum (respondent No. 1) via a settlement deed, which the appellants (Abdur Rahman and others) challenged as void under Muslim law.

The central issue in the case revolved around whether the settlement deed constituted a lawful gift under Sections 149, 150, and 151 of Muslim law (Principles of Mahomedan Law-Mulla). The appellants contended that the deed was deficient in crucial aspects, such as the failure to deliver possession of the property to the donee.

While highlighting the key issues regarding the settlement deed and whether the manner of transfer under such a deed suffices for a valid gift, the Court observed a spectrum of judgments on the matter. There has not been any uniform legislation or pre-dominant provision. The Court, while examining the present case, observed that this might be the main source of conflict among cases. The lack of a uniform judicial precedent may be the prime cause of such conflicts. Most judicial precedents contain observations that align with the ratio decidendi of this case, preserving the required elements for a settlement deed to be a valid gift deed. Justice S.B. Sinha in Abdul Rahim and ors. vs. S.K. Abdul Zabar and ors. (2009) has observed several judgements that prescribed the essential elements of a valid gift and concluded that delivery of possession of the gifted property is one of the mandatory requisites for such a gift to be legal in the eyes of law.

The Karnataka High Court also considered the concept of the gift of ‘Ariya’ under Mohammedan law. The Court discussed this concept when the respondents referred to excerpts from ‘Outlines of Mohdn. Law’ by Faize, which states that one can transfer the usufruct (munafi) for a specified time but not the corpus. In Islamic jurisprudence, transferring the corpus signifies the absolute transfer of ownership, hence, it is indefinite. A life interest is seen as the transfer of usufruct for a specific duration, and in Mohammedan law, a gift of usufruct, known as ‘’ariya’, is deemed valid.

The High Court intricately examined these aspects of Mohammedan law and referred to the legal precedents presented by the appellants to support their stance. It prescribed that for a gift deed to be valid, three elements must be in existence, which are ‘declaration of gift by the donor’, ‘acceptance by the donee’, and ‘delivery of possession of the gift’. Although the hiba of Munafi is deemed valid under various practices of Islamic schools, this case concerns the hiba of corpus. The respondent’s contention focuses on the ownership of the disputed property, while the appellant’s claims address the property as a whole, contradicting the concept of hiba of ‘Munafi’. Hiba of ‘Munafi’ is associated with rights over a part of the property, not the whole. Therefore, the Karnataka High Court, concluding the case on the basis of the facts and claims presented in this case, held that the gift of ‘Munafi’ does not stand, and the respondents’ claim of sole ownership of the suit property by gift deed is not valid. In addition to the above-mentioned statements, the Court recognised the validity of the appellants’ claim for partition and separate possession of the contested property (Schedule ‘B’), affirming their right based on principles of inheritance, governed by Muslim law.

Another broad aspect in this case covers a provision of the Civil Procedure Code, 1908, as the case was further appealed in the Apex Court by the respondents, aggrieved by the High Court’s judgement. The matter here was dealt with by two judges, namely M.M. Punchhi and K.T. Thomas, JJ., where it was determined that the Karnataka High Court had overstepped its authority by adjudicating on the merits of the case in the absence of the appellant’s counsel. The Supreme Court held The Karnataka High Court exceeded its jurisdiction and contravened Order 41 Rule 17 of the Civil Procedure Code (1908), which mandates the dismissal of appeals based on the non-appearance of the respondents on the date of hearing. The Supreme Court observed that it was beyond the powers of the Karnataka High Court to evaluate the merits of the case where the appellants were not present during the hearing.

Conclusion

India is framed in a wide range of customary laws arising out of family laws, which possess dependency on a bunch of precedential analysis as well as on commentaries and research by eminent jurists and scholars. This dependency sometimes leads to discrepancies in the application of law in certain areas of family law, therefore indicating an urge for uniformity in the application of laws. Islamic Jurisprudence navigates its sources through the Holy Book of Quran and, furthermore, from its sub-source, Hadith, which guides a believer in different aspects of his life. The Sharia law encapsulates hiba as “Give each other gifts and you will love each other,” according to Prophet Muhammad, but, the formulation of its essentials has been derived through judicial precedents and legal commentaries. The concept of hiba of Corpus is much more prevalent as compared to hiba of Munafi (gift of the usufruct) and hiba of Mushaa (gift of an undivided share of a property).

The case of Abdur Rahman vs. Athifa Begum (1998) revolves around the essential elements of a valid gift deed, which are ‘Declaration of gift by the donor to the donee’, ‘Acceptance of such gift by the donee’, and ‘Delivery of Possession of the gift to the donee from the donor’. This stance is established by the Court by referencing Mulla’s ‘Principles of Mahomedan Law’ while solidifying its judgement with the case law Mahboob Sahab vs. Syed Ismail & Ors (1995) and the obiter dicta of other such key precedents.

Frequently Asked Questions (FAQs)

Does Transfer of Property recognise the concept of gift or Hiba under Mohammedan Law?

Section 122 of the Transfer of Property Act, 1882 pertains to ‘Gifts’, but it does not encompass provisions for Mohammedan law, which regulates transactions involving gifts or hiba based on customary laws. This is explicitly stated in Section 129 of the Transfer of Property Act and elaborated in legal texts by renowned jurists and scholars such as Mulla and Faizee.

Can a settlement deed be a gift deed?

Yes, a settlement deed can be a gift deed, provided that there have to be certain elements and prerequisites in order to validate such a deed as a gift deed.

The crucial aspect lies in the intentions of the parties who execute the settlement deed. If the language and terms of the settlement deed clearly indicate that the transferor (settlor) intends to transfer certain property to the transferee (beneficiary) as a gift without seeking anything in return or imposing obligations, then it may effectively operate as a gift.
Previously, Courts in their judgements interpreted this stance and reinforced that the significant factor in assessing such parity is based upon the intention of the settlor, whether he intends to transfer the property while retaining other rights. The Court also held that if, after analysing such settlement deed, it proves to manifest the intention of the settlor unambiguously, it validates as a gift.

Is it mandatory for a gift deed to be registered under Mohammedan law?

No, it is not mandatory, as such, to register a deed of gift for it to be valid. However, it is believed to be in alignment with the law if such a document is duly registered. This stance is upheld and solidified in many judicial precedents.

References

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S. Varadarajan vs. State of Madras (1964)

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July 23, 2024

This article has been written by Sarthak Mittal. The article aims to demystify the dictum laid down by the Supreme Court in the case of S. Varadarajan vs. State of Madras (1964). The article aims to explain legal propositions such as what are the essential ingredients of the offence of kidnapping. Further, the article delves into the significance and legal implications of the ingredient of “taking” in the offence of kidnapping. The article aims to provide clarity on the legal issue of whether a child can abandon the “keeping” of his or her lawful guardian out of his/her own volition and whether the mere facilitation of such acts when done by the child is sufficient to constitute the offence of kidnapping.

Table of Contents

Introduction

The history behind the word “kidnapping” can be found in the Law Commission’s 42nd Report (1971) on the Indian Penal Code, which provides that the said word is derived from the words “kid” which means “child” and “napper” which is an American word used for “thief”. The word “kidnapper” was used in the 17th century to describe a person who stole children or another to provide servants and labourers for the American plantations. In England, the word “kidnapping” has a specific meaning, which is to steal or carry away a person. Blackstone defines the word “kidnapping” in a distinct sense, wherein he refers to it as an offence of sending a victim to another country. Russell refers to the word “kidnapping” as the offence of a child being taken away against the will of his friend or lawful guardian.

In India, interestingly, the offence of kidnapping is worded in such a manner that it includes all of these definitions within it. This is done by categorising the offence of kidnapping into two parts namely the offence of kidnapping from India, which is defined in Section 360 of the Indian Penal Code, 1860 (hereinafter, referred to as “the Code” for brevity) and the offence of kidnapping from lawful guardianship, defined in Section 361 of the Code. The former is an offence against the person who is being conveyed beyond the Indian territory without his consent, whereas, the latter is an offence against the lawful guardian of a minor wherein the minor child is taken or enticed out of such keeping by the perpetrator.

The dictum laid down by the Supreme Court in the case of S. Varadarajan vs. State of Madras (1964) holds extreme significance in the interpretation and application of the provisions related to the offence of kidnapping, wherein the Court clarifies the interpretation of the essential ingredients of the offence of kidnapping from a lawful guardian. It would not be wrong to say that the realistic application of the offence of kidnapping cannot be understood without referring to the given case.

Details of the case

Name of the case

S. Varadarajan vs. State of Madras

Date of judgement

9th September, 1964

Parties to the proceedings

Appellant

S. Vardarajan was the Appellant in the case and he was the accused in the trial.

Respondent

The State of Madras

Represented by

Advocate for Appellant

Senior Advocate A.V. Viswanatha Sastri appeared for the Appellant along with advocates K. Jayaram and R. Ganapathy Iyer

Advocate for Respondent

Senior Advocate A. Ranganadham Chetty appeared for the respondent, along with advocate A.V. Rangam

Equivalent citations

1964 SCC Online SC 36, AIR 1965 SC 942, (1965) 1 SCR 243, (1965) 2 CriLJ 33

Type of the case

The appeal has been filed through a special leave petition under Article 136 of the Indian Constitution against the impugned judgement of the Madras High Court in criminal appeal no. 114 of 1961, dated March 22, 1963.

Court

The Supreme Court of India

Referred provisions

Section 361 and 363 of the Indian Penal Code, 1860

Bench

The case was decided by a three-judge bench comprising of Hon’ble Justices K. Subba Rao, M. Hidayatullah and J.R. Mudholkar.

Author of the judgement

The dictum was laid down by a unanimous decision of a three-judge bench, wherein, the judgement was authored by Hon’ble Justice J.R. Mudholkar.

Facts of S. Varadarajan vs. State of Madras (1964)

Date	Brief facts of the case
Prior to 30th September 1960	S. Natrajan and his wife (the victim in the given case) lived with their two daughters, namely Savitri and Rama, at 6th Street, Lake Area, Nungambakkam, Madras. The youngest daughter Savitri, was pursuing B.Sc. from Ethiraj College at the relevant time. In the given case, it is pertinent to note that Savitri was born on 13th November 1942. Varadarajan (the appellant) resided in the house next door to that of S. Natarajan.Due to the proximity between the two houses, the appellant and Savitri were able to converse with one another from their respective houses.
30th September, 1960	In the morning, Savitri’s sister, Rama, found her talking to the appellant. Rama had also found them conversing on previous occasions as well. When Rama inquired about the purpose of the conversation with the appellant, Savitri replied that she wanted to marry the appellant. Rama informed about Savitri’s motive to her father, S. Natrajan. Savitri was questioned upon this matter, to which she did not reply; rather, she kept on crying and stayed silent. S. Natrajan thought that it would be best to keep Savitri distant from the appellant and thus, took her to Kodambakkam and left her at the house of K. Natrajan, who was his relative.
1st October, 1960	The very next day, after being left at her relative’s house, Savitri left the house and had a telephone call with the appellant, wherein, she asked the appellant to meet her near the place she was currently residing in his car. It is pertinent to note that Savitri was 17 years, 10 months, and 18 days old on this date. Savitri met the appellant at the discussed location, got into the car and went with the appellant to the house of one P.T. Sami in Mylapore. They intended to take P.T. Sami as a witness to their marriage to the Registrar’s office. The appellant and Savitri also went to the shop of Govindarajulu Naidu at Netaji Subhas Chandra Bose Road, wherein, they bought sweets and jewellery selected by Savitri herself. Thereafter, they proceeded to the registrar’s office. The Appellant and Savitri got married at the Registrar’s office through an agreement which was also attested by Sami as well as by one P.K. Mar.K. Natrajan, on the other hand, went to S. Natrajan’s house to inquire about the whereabouts of Savitri suspecting that she might have returned home. However, after realising that Savitri is nowhere to be found, they tried to search for her at the railway station and other places. When the search did not come to fruition, they lodged a missing complaint at the nearest police station.
2nd October, 1960	After getting married, the appellant and Savitri went to Ajanta Hotel and stayed there for a day. The next day, they purchased sarees and blouses for Savitri.The couple left for Sattur through a train.
4th October, 1960	The couple went to Sirukulam, Coimbatore and then to Tanjore. At Tanjore, they were traced by the police, who were investigating the complaint of kidnapping made by S. Natarajan.
3rd November, 1960	The police brought Savitri and the Appellant to Madras.
22nd March, 1963	The case first went before the Fifth Presidency Magistrate, Egmore, Madras, wherein, the appellant (the accused in the trial) was charged under Section 363 of the Indian Penal Code, 1860, which provides for the offence of kidnapping. The appellant was sentenced to rigorous imprisonment for one year by the said court. The conviction and sentence passed by the Presidency Court were later affirmed by the High Court of Madras. Hence, the appellant filed a special leave petition under Article 136 of the Indian Constitution against the impugned order of the Madras High Court dated 22.03.1963. Thus, the case came before the Supreme Court of India.

Essential ingredients of the offence of kidnapping from lawful guardian (Section 361 of the Indian Penal Code, 1860)

To understand the issues and the dictum laid down by the Court in the given case, it is important to be equipped with an understanding of the essential ingredients that are provided in Section 361 of the Indian Penal Code, 1860. It is on the fulfilment of these ingredients that the offence of kidnapping from a lawful guardian is attracted. The ingredients are as follows:-

Age of child

It is first of all essential to understand that the offence of kidnapping from a lawful guardian is an offence against the lawful guardian and not against the child. The child in this case is, below the age of 18 years in the case of a female and 16 years in the case of a male. The age of the child is set by the legislature with an intention to distinguish between persons who can abandon the keeping of their lawful guardians intentionally and those who cannot breed the said intention. To create the distinction, the legislature has adopted the objective parameter of age, wherein, the legislature imposes a bright line rule holding that a female child below the age of 18 years and a male child below the age of 16 years can not abandon the lawful keeping of their lawful guardians intentionally. Thus, to frame a charge under Section 363 of the Code, it is pertinent for the prosecutor to establish that the age of the child alleged to have been kidnapped was below the age of 18 or 16 years as the case may be. The material date to determine the age of the child is the date on which the incident of kidnapping took place.

Keeping of lawful guardian

The second ingredient is that the child should be within the “keeping” of the lawful guardian. To understand the said ingredient, it is imperative to understand the meaning of the words “lawful guardian” and “keeping.”

Lawful guardian

The word “lawful guardian” has been deliberately used by the legislator to incorporate a term that has a wider import than “legal” or “natural” guardian. Legal and natural guardians have been defined under personal laws such as the Hindu Minority and Guardianship Act, 1956 and the Muslim Personal Law, which is applied through the Muslim Personal Law (Shariat) Application Act, 1937, or secular laws such as the Guardian and Wards Act, 1890. When the concept of legal and natural guardians is culled out of these laws, it is clear that legal and natural guardians will include a handful of people related to the minor, such as parents, grandparents, and husbands in the case of a minor married girl, and other guardians appointed by the Court keeping in mind the best interests of the minor.

However, the term “lawful guardian” has a wider ambit and it will include natural and legal guardians alongside any other person who has been entrusted with the care and custody of the child. The same has been given under the explanation of Section 361 of the Code.

Keeping

The second word, “keeping” is also to be understood in the context of the object and purpose of the provision. The object of the provision is to punish anyone who takes or entices a child out of the safe custody and keeping of the lawful guardian. Thus, the provision prohibits any person from taking the child to such a place where, the lawful guardian would not be able to access the child, care for the child or keep the child safe. In this context, the word “keeping” is not only restricted to the immediate keeping of a child; rather, it will be interpreted as any place where the lawful guardian knows the whereabouts of the child, feels that the child is accessible and can be kept safe by him even though he is not in the immediate presence of the child.

For instance, when a child is at school, the lawful guardian will be aware of the whereabouts of the child, and they would have permitted the child’s presence at such a place, ensuring that the child will be safe and protected. Apart from that, the child in such a case is accessible to the guardian. In such a case, if the child is taken or enticed without the consent of such a guardian from the school, the perpetrator can not take the defence that the child was not in the “keeping” of the guardian, as the term “keeping” is not merely limited to the immediate physical presence of the guardian.

Taking or enticing

Generally, an offence has two elements, namely, the mental element called the mens rea and the physical element called the actus reus. Thus, criminal liability can only be fastened when both elements simultaneously coexist. However, there are offences where criminal liability can be fastened only by establishing the guilt act or the physical element; these offences are called strict liability offences. The offence of kidnapping from a lawful guardian is also a strict liability offence and the actus reus or the physical element, in this offence, is the act of taking or enticing.

“Taking” herein refers to the act of taking by force or by any other physical act. Thus, for an act to fall within the ambit of “taking,” it is pertinent to establish that the perpetrator has in some way overpowered the physical will of the child. On the other hand, “enticing” means an act of luring, instigating, goading or provoking. In the case of enticement, the person does an act due to which the child himself follows the perpetrator. It is pertinent to note that even sexual acts can be held to be a mode of luring or enticing a child. To make it clear, taking and enticing can be understood by the following example:-

‘A’ is a minor who has been dropped at the park by his mother so that he can play with his friends. Now in this scenario, if ‘C’ administers ‘A’ some drug to render him unconscious and then picks ‘A’ and runs away from the park, the act of ‘C’ will be said to be “taking”. Whereas, if ‘C’ falsely displays that he is a person sent by his parents to take him from the park to the movies so that, the child willfully accompanies him, the act of ‘C’ will fall within the ambit of enticing if the child believes the statement made and accompanies him.

Consent

One of the defences that has been allowed by Section 361 of the Code is to prove that the lawful guardian has given consent to the alleged accused. However, it is pertinent to understand that the quality and extent of consent can always be put to the test by the prosecution. For instance, if a lawful guardian has given a person consent to drop the child at school, the consent will be valid for all the things necessary to take the child to school and a completely unrelated act will not be able to be defended through the consent. So, if suppose the person takes the child to a different city or a movie, the consent would not cover the said act and the person may be charged under Section 363 of the Code.

Issues raised in S. Varadarajan vs. State of Madras (1964)

The issue that arose before the Apex Court is as follows:-

Whether the acts done by the appellant (Varadarajan) fall within the ambit of the word “taking” used in Section 361 of the Indian Penal Code, 1860?

Arguments of the parties

Appellant

The appellant presented a two-pronged defence wherein, he contended as follows:-

That, Savitri had herself abandoned the guardianship of her father thus, Savitri was not in the keeping of her lawful guardian and thus, the ingredients to sustain a charge of Section 363 are not met.
That, the acts of the Appellant did not fall within the ambit of the term ‘taking’.

The Court accepted the second leg of the argument thus, the Court did not ponder upon the first leg of the argument. Thus, the Court focused on the ambit of the term ‘taking’ as used in Section 361 of the Code and the Court did not ponder upon the question of whether the minor himself can abandon the keeping of the guardian.

Respondent

The respondent’s arguments were primarily based on the findings of the High Court. The core of the respondent was that a minor can not abandon the keeping of the lawful guardians.

Dictum laid down by the court

The accused in the given case was acquitted by the Supreme Court as the Court observed that the acts of the accused would not fall within the ambit of the word “taking” as has been used in Section 361 of the Indian Penal Code as the accused merely allowed the minor to accompany him. It was the minor who set up a rendezvous, who asked the accused to get married, who followed the accused to the registrar’s office and to other cities thereon. This observation of the court assailed the main argument made by the prosecution and at the same time exemplified how the acts of the accused are insufficient to attract the charges under Section 363 of IPC. The detailed analysis of the judgement delivered by the court is given herein below.

The distinction between “taking” and “allowing a minor to accompany”

The Apex Court emphasised the crucial distinction between the act of “taking” a minor out of the guardian’s keeping and merely “allowing” a minor to accompany someone. These two expressions are not synonymous, and the Court cautioned against equating them with the same meaning for the purposes of Section 361 of the IPC. The Court acknowledged that there could be exceptional circumstances where the two concepts might overlap, but in general, they should be treated as distinct. In the given case, the Court observed that the child was not taken by the accused; rather, it was the child who voluntarily accompanied the accused and the accused merely allowed the child to do so.

The Court held that for the offence of kidnapping to be established, the prosecution must prove that the accused actively “took” or enticed the minor out of the guardian’s “keeping.” The mere fact that the minor subsequently accompanied the accused willingly is not sufficient to constitute “taking” under Section 361. There must be evidence of some form of inducement, persuasion, or active participation by the accused so that the minor forms an intention to leave the guardian’s custody.

The capacity of the minor to understand the consequences of their acts

The Court emphasised the importance of considering the minor’s capacity to comprehend the implications of their actions. If the minor is on the verge of attaining majority and possesses the ability to think for themselves and understand the consequences of their choices, their willingness to accompany someone carries more weight. In such cases, the mere act of the accused facilitating the minor’s desire or intention, without any prior inducement or persuasion, may not amount to “taking” under Section 361.

Active inducement or persuasion by the accused

The Court clarified that if the prosecution can establish that the accused actively solicited, persuaded, or induced the minor to leave the guardian’s custody at any stage, it would be sufficient to constitute “taking” under Section 361. Even if the accused did not play an immediate or active role in the minor’s departure from the guardian’s house, evidence of prior solicitation or persuasion by the accused could still lead to a conviction. The Court drew a parallel with English common law principles, which emphasise the importance of establishing active inducement or persuasion by the accused in cases of alleged kidnapping or abduction. The English common law principle was that the offence is of strict liability however, the word “taking” in itself involves intentional inducement to follow or intentionally overpowering the child to abandon the lawful custody of the guardian.

Distinction from cases involving married women

The Court highlighted the distinction between cases involving minors under Section 361 and those involving married women under Sections 497 and 498 of the IPC. While the word “taking” in Sections 497 and 498 may be given a broader interpretation to protect the husband’s rights, the same broad interpretation may not be warranted in the context of Section 361, which is primarily intended to protect minors and persons of unsound mind. The Court emphasised that the primary objective of Section 361 and related provisions is to afford security and protection to the wards themselves, rather than solely protecting the guardian’s rights.

Relevance of the minor’s mental attitude

The Court acknowledged that while the mental attitude or free will of the minor may be irrelevant in cases of enticement, it carries significance in cases involving the alleged “taking” of a minor. If the evidence suggests that the minor willingly accompanied the accused without any inducement or persuasion, the minor’s mental attitude and desire become relevant considerations. The Court cautioned against disregarding the minor’s free will or agency in such cases, particularly when they are on the verge of attaining majority and possess the capacity to make informed decisions.

Passive facilitation versus active inducement

The Court drew a distinction between the accused’s passive facilitation of the minor’s intention not to return to the guardian’s house and the accused’s active inducement or persuasion that led to the minor’s departure. Mere passive facilitation, such as taking the minor from place to place after they have willingly left the guardian’s custody, may not necessarily amount to “taking” under Section 361. However, if there is evidence of prior active inducement or persuasion by the accused, even if they did not physically take the minor from the guardian’s house, it could still constitute “taking” under Section 361.

Balancing protection and autonomy

The Court’s obiter dictum seeks to strike a balance between protecting minors from exploitation and respecting their evolving autonomy and decision-making capabilities, particularly when they are on the verge of attaining majority. The Court acknowledged that not every instance of a minor willingly accompanying someone should be automatically construed as kidnapping, as it may disregard the minor’s agency and ability to make informed choices. The dictum provides a nuanced approach, recognising the need to protect minors while also respecting their autonomy, especially when they are nearing the age of majority and possess the capacity to understand the implications of their actions.

Contextual application of the law

The Court’s obiter dictum emphasises the need for a contextual application of the law, taking into account the specific circumstances of each case. It acknowledges that a rigid or formulaic interpretation of the term “taking” under Section 361 may lead to unfair outcomes, particularly in cases involving minors on the cusp of adulthood who possess the capacity for independent decision-making. The Court’s dictum encourages a more nuanced and case-by-case analysis, considering factors such as the minor’s age, maturity, capacity for understanding, and the presence or absence of active inducement or persuasion by the accused.

The guiding principle for interpretation

The obiter dictum serves as a guiding principle for Courts in interpreting and applying the offence of kidnapping under Section 361 of the IPC. It provides a framework for distinguishing between cases where the accused actively induced or persuaded the minor to leave the guardian’s custody, and cases where the minor willingly accompanied the accused without any prior inducement. By emphasising the need for evidence of active inducement or persuasion, and considering the minor’s evolving capacities and autonomy, the dictum aims to ensure a fair and contextual application of the law, balancing the protection of minors with the recognition of their agency and decision-making abilities.

Conclusion

The Court in the case of S. Varadarajan vs. State of Madras (1964) does not lay down a new interpretation of the law; however, it clarifies the existing law penalising the offence of kidnapping and elucidates the application of the same on the facts of the case. Thus, it clarifies that ‘taking’ will not include the acts wherein the minor voluntarily accompanies the accused person. In the given case, the Court digressed from the plain and grammatical interpretation of the word “taking” and interpreted the word in the context of the provision. The Court also took into account the intent and understanding of the minor to form an opinion to follow the accused voluntarily.

Frequently Asked Questions (FAQs)

What is the difference between abduction and kidnapping?

The offence of abduction has been provided under Section 362 of the IPC, whereas the offence of kidnapping has been defined under Section 359 of the IPC. The main difference between the two offences is that abduction in itself is not an offence; rather, abduction has to be coupled with an intent to commit a further offence. For example, abduction with the intent to commit murder has been punished under Section 364 of the IPC, whereas the offence of kidnapping is an offence in itself, which is punishable under Section 363 of the IPC. Further, the offence of abduction is a continuing offence, whereas, the offence of kidnapping is not a continuing offence.

Which court has the jurisdiction to try the offence of kidnapping or abduction?

The offence of kidnapping is cognizable, non-bailable and generally triable by a judicial magistrate of the first class; however, the nature and competence of the court to try in cases of abduction will depend on the penal provision in which the offence is being charged. Further, sub-section (2) of Section 181 of the Code of Criminal Procedure, 1973, provides that the court within whose jurisdiction the victim is kidnapped, abducted, conveyed, concealed, or abducted can try the case of kidnapping or abduction.

Where has the offence of kidnapping been provided in the Bhartiya Nyaya Sanhita, 2024?

Sections 359, 360, and 361 have been replaced by Section 135 of the Bhartiya Nyaya Sanhita Bill of 2023. The contents of all three provisions have now been consolidated under one common provision. The Home Minister of India, Hon’ble Mr. Amit Shah, explained in his speech while introducing the bill for the given law that the new legislation aims to place the provisions relating to offences against the body before the offences against the state, unlike the earlier Code. Thereby, the given section is renumbered to Section 135 in Chapter VI.

References

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Relationship between Fundamental Rights and Directive Principles of State Policy

By

Anjali Dhingra

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July 23, 2024

This article is written by Shreya Tripathi and has been updated by Kruti Brahmbhatt. This article deals with the relationship between Fundamental Rights and the Directive Principles of State Policy, with reference to various landmark judgements. It includes the differences and conflicts between them. The most important part of this article is to understand how the judiciary, over a period of time, has developed a different approach, from strict interpretation to building a harmonious construction between them, aiming to maintain a balance.

Table of Contents

Introduction

India has the lengthiest written Constitution in the world, which initially included 395 Articles in 22 parts along with 8 schedules. Currently, the Constitution of India consists of a Preamble and 25 Parts, with 12 Schedules, 3 appendices, 106 amendments and 448 articles. The Constitution came into force on 26 January 1950. This day is celebrated as Republic Day.

Fundamental rights and Directive Principles of State Policy (hereinafter referred to as DPSP) provided under the Indian Constitution safeguard the basic human rights and welfare of an individual. As per the Motilal Committee Report, 1928, Fundamental rights were derived from the Bill of Rights provided under the American Constitution for its individuals.

The fundamental rights and DPSPs, along with the Preamble, form the trinity of the Indian Constitution. Through the fundamental rights and directive principles, the Constitution strives to ensure the principles of equality, justice, good governance and welfare, and human rights. The major aspect of this Constitutional framework is to maintain harmony and balance between them.

Fundamental Rights

These rights were preserved in Part III of the Indian Constitution. Fundamental rights are termed as inherent rights. These rights are inherent to all individuals by birth. They are the basic rights required for the survival of an individual. Fundamental rights ensure that there is no discrimination based on caste, class, race, religion, etc. If any person feels that their fundamental rights are violated, they can approach Constitutional courts to get them enforced.

The main essence of fundamental rights is to guarantee basic freedoms to the citizens. It maintains a free and just society. It protects minorities against discriminating treatments and practices. It ensures the dignity of each and every individual in the country, regardless of the person’s background. Fundamental rights of the people are found under Article 12 to Article 35 of the Indian Constitution. These are divided under various heads-

Right to equality
Right to freedom
Right to freedom of religion
Right against exploitation
Cultural and educational rights
Right to constitutional remedies

Right to equality (Article 14 to 18 of the Indian Constitution)

The right to equality is of supreme nature, ensuring equality before the law and equal treatment of everybody in the territory of India. This right protects against any sort of discrimination on the basis of race, creed, gender, etc. Every individual is entitled to receive equal opportunities in every field of employment. Further, these rights, in order to maintain equality, abolished untouchability and titles.

Article 14 to Article 18 of the Indian Constitution guarantees equal treatment, as well as equality before law. It covers the following:

Article 14: Equality before law

The State is prohibited from denying equality before the law or the equal protection of the laws in India. This provision aims to secure all citizens or non-citizens with equal status and opportunity, as mentioned in the Preamble of the Constitution. This right is considered to be a basic feature of the Constitution, as per the Constitutional Bench of the Supreme Court. In the case of Indira Nehru Gandhi vs Shri Raj Narain (1975), the Supreme Court held that the right to equality is a basic feature of the Constitution and any action which treats equal individuals unequally or unequal individuals equally shall be considered as a breach of this basic structure.

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth

As per Article 15(1), the State is prohibited from discriminating against any citizen on the basis of religion, race, caste, sex, or place of birth.

Article 15(2) provides that no citizen shall be denied access to shops, public restaurants, hotels, places of public entertainment, use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public, on the basis of religion, race, caste, sex, or place of birth.

Article 15(3) goes on to add that nothing mentioned in the above provisions can prevent the State from making special provisions for women and children.

Article 15(4) provides that nothing mentioned in the above provisions can prevent the State from making special provisions for advancing socially and educationally backward classes of citizens or for the Scheduled Tribes and the Scheduled Castes.

The Supreme Court, in the case of Anuj Garg vs. Hotel Association of India (2007), struck down a law that prohibited women from working as bartenders. The Court stated that the law was based on stereotypes and violated Article 15.

Article 16: Equality of opportunity in matters of public employment

All citizens of the country are guaranteed equal opportunities for employment. There shall be no discrimination on the basis of religion, race, caste, sex or place of birth. However, as per clause 4, this does not prevent the State from making laws for reservation.

In the case of A.P. Public Service Commission vs. Baloji Badhavath (2009), the Supreme Court stated that provisions contained in Article 15 and Article 16 are merely enabling provisions. No citizen of India can claim reservation as a matter of right, and accordingly, no writ of mandamus can be issued.

Article 17: Abolition of untouchability

This provision absolutely abolishes the practice of untouchability. The term “untouchability” mentioned here is not limited to its literal or grammatical sense but refers to the practice which was prevalent in the country in the past. There is no precise definition for the term “untouchability” in the Constitution or in the Act.

Article 18: Abolition of titles

Titles other than those given with respect to the military or academics are abolished. The national awards like Bharat Ratna, Padma Vibhushan, etc., which are awarded by the Government of India, are not “titles” within the meaning of Article 18. This was held by the Supreme Court in the case of Balaji Raghavan vs. Union of India (1996).

Right to freedom (Article 19 to 22 of the Indian Constitution)

The right to freedom under the Constitution provides freedom to form associations, gather peacefully without arms, live, move, settle, or travel to any location, and allows the choice of profession to every individual in the territory of India. Additionally, the freedom to be educated and to live life with liberty and dignity is also enshrined under this part of the Constitution. Further, it provides the freedom from arrest, detention and conviction for an offence.

These rights are given under Article 19 to Article 22 of the Indian Constitution, as stated below:

Article 19: Protection of certain rights regarding freedom of speech

This provision protects certain essential rights such as freedom of speech, freedom to assemble peacefully, form associations or unions, move freely, reside, settle and practise any profession or business in any part of Indian territory. All of these freedoms are given under Article 19, subject to reasonable restrictions. These rights are extremely important for a democratic country.

In case any law is found to violate the fundamental rights given under this provision, it shall be declared invalid unless it is enacted under the purview of reasonable restrictions. These reasonable restrictions are imposed under Article 19(2) to Article 19(6) on the freedoms guaranteed by Article 19(1)(a) to (g).

However, in the case of Kharak Singh vs. State of Uttar Pradesh (1962), the Supreme Court made it clear that any restrictions under Article 19(2) to 19(6) on any right guaranteed by Article 19(1)(a) to (g), can be imposed only by a law. A mere administrative direction or departmental instruction which has no statutory force cannot impose them.

Article 20: Protection in respect of conviction for offences

This protects individuals from being convicted for offences, except in situations of a violation of the law in force. It safeguards individuals against retrospective criminal legislation, double jeopardy and self-incrimination.

This provision ensures that no person is punished for an act that was not an offence at the time it was committed. Additionally, a person cannot be prosecuted and punished for the same offence more than once, and no person can be compelled to be a witness against himself.

In the case of Mohan lal vs. State of Rajasthan (2015), which deals with the Narcotic Drugs and Psychotropic Substances Act, 1985, the Supreme Court stated that Article 20 only prohibits conviction and punishment under an ex post facto law. It does not prevent the trial or prosecution itself. Further, if a trial follows a procedure different from the one that existed when the offence occurred, it does not violate Article 20 and cannot be held as unconstitutional.

Article 21: Protection of life and personal liberty

This provision ensures that no person is deprived of his right to life and personal liberty except according to the procedure established by law. This is one of the most important rights provided under the Constitution. The term “life” also includes the right to live with dignity and the right to livelihood.

Over the period of time, the court has expanded the scope of this Article. In the landmark judgement of Maneka Gandhi vs. Union of India (1978), the Supreme Court held that the right to life and personal liberty is not limited to mere animal existence but also includes the right to live with dignity. The Court stated that the procedure established by law should be fair, just and reasonable.

Article 22: Protection against arrest and detention in certain cases

This Article provides protection against arrest and detention under certain cases and applies to citizens as well as non-citizens. As per this provision, no person who is arrested shall be detained in custody without being informed of the grounds for arrest. The arrested person has the right to consult legal practitioners. There are two exceptions to Article 22- being an enemy/alien during wartime or being arrested or detained for preventive detention.

Right against exploitation (Article 23 and 24 of the Indian Constitution)

The rights against child labour, forced labour and human trafficking are provided under this. The term human trafficking is commonly known as slavery, buying or selling of human beings as if they are chattels. The popular targets for such acts are women and children. Such practices of trafficking are abolished under the right against exploitation. The specific Articles which provide the right against exploitation are:

Article 23: Prohibition of traffic in human beings and forced labour

It abolishes the three major antisocial practices, which are begging, trafficking in human beings and forced labour. It terms such acts as punishable offences under the law. This does not prevent the State from imposing compulsory service for public purposes. However, this should be done without any discrimination.

The Supreme Court, in the case of Deena vs. Union of India (1983), held that if a prisoner is forced to work without any payment, it would be considered a violation of Article 23.

Article 24: Prohibition of employment of children in factories, etc.,

This prohibits the employment of children below the age of 14 years in any factory, mine or any work that is hazardous in nature. It aims to protect the welfare and rights of children by prohibiting employment in hazardous occupations.

Right to freedom of religion (Article 25 to 29 of the Indian Constitution)

India, being a secular country, does not enforce any one religion but allows its citizens to follow the religion they wish to. This right allows us to follow any religion of our choice without any doubt or interference. Absolute freedom is provided under this right to attend any religious ceremonies at any religious institution or educational centre. It also allows the promotion of religion, making it tax-free. Such taxes can be paid voluntarily, but nobody can impose any tax on an individual who has no interest in paying any kind of tax for religious purposes.

Article 25 to Article 28 of the Constitution provides the right to freedom of religion and conscience. They are as follows:

Article 25: Freedom of conscience and free profession, practice and propagation of religion.

This freedom is subject to public order, health and morality. The restrictions imposed on religious gatherings during the COVID-19 pandemic are an example of the restrictions which may be imposed in the interest of the health and safety of people. Under this Article, the State is vested with the power to make laws regarding framing regulations or imposing restrictions on any matter relating to financial, economic, political or other secular activities which are associated with any religious practices.

Article 26: Freedom to manage religious affairs

This provides the freedom to manage religious affairs, which includes forming and maintaining religious or charitable institutions, managing their own affairs, and rights over the transactions relating to property and administering them according to the law.

Article 27: Freedom as to payment of taxes for the promotion of any particular religion

It provides freedom from payment of taxes, which would be utilised for either promotion or maintenance, or both, of any religious denomination.

Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions

This ensures that no religious instructions are allowed in State-funded educational institutions. However, wherein the institutions are established under any religious trust or endowment, then regardless of the fact that it is State-administered, religious instructions can be imparted in such institutions. In the case of state-recognized institutions or those that receive aid from the state, consent from the state is required.

Cultural and educational rights (Article 29 and 30 of the Indian Constitution)

The different languages and varieties of culture present in India are protected under this right. Additionally, it also provides rights for the protection of the cultures of minorities. The establishment of educational institutions and the right to primary education are also covered under this.

The cultural and educational rights of the various cultural, religious and linguistic minorities in India are protected under Article 29 and Article 30 of the Indian Constitution:

Article 29: Protection of interests of minorities

This provision seeks to protect the interests of minorities in the territory of India by providing them the right to conserve their distinct language, script or culture. Additionally, no citizen shall be denied admission to any educational institution maintained or funded by the State on the basis of race, religion, caste or language.

Article 30: Right of minorities to establish and administer educational institutions

Under this, minorities’ right to establish and administer educational institutions on the basis of religion or language is protected.

In the case of Usha Mehta vs. State of Maharashtra (2004), the Marathi language was imposed in schools run by linguistic minorities, which was challenged before the court. The court relied on the “three-language formula” and held that Article 29 and Article 30 are difficult to interpret in a way that would provide a right to avoid learning a regional language. Hence, it is not practical to agree with the proposition that the people living in a certain State cannot be asked to learn the local language.

Rights to seek constitutional remedies (Article 32 and 226 of the Indian Constitution)

The rights are not effective if no remedies are provided against its violations. The right to seek constitutional remedies provides relief with respect to the violation of the fundamental rights of individuals or citizens. Under Article 13 of the Constitution, any law which is inconsistent with a fundamental right is held to be void. Any citizen whose fundamental rights have been violated can seek remedy under Article 32 from the Supreme Court of India or under Article 226 from the State High Courts.

Article 32 of the Constitution provides remedies for the enforcement of fundamental rights. It lays down 5 writs. Writs refer to the “order of court”. In cases wherein only the fundamental rights are violated, an individual can directly approach the Supreme Court of India. They are the following:

Habeas corpus
Mandamus
Prohibition
Certiorari
Quo warranto

Directive Principles of State Policy (DPSP)

The concept of fundamental rights in India, restricts the government from doing such acts which might violate the fundamental rights of the citizens. On the other hand, the States have an obligation to apply the provisions of the DPSPs while making laws. As the name suggests, they are directive principles that are to be incorporated into policies. DPSPs are termed as “index of public purpose”. Any act or provisions made in accordance with these principles are considered to be law for a public purpose, which indicates that it is for the overall welfare of the citizens.

Directive Principles of State Policy were adopted from Article 45 of the Irish Constitution. They obligate the State with the duty to achieve socio-economic and welfare, along with protecting and acknowledging the fundamental rights of an individual. DPSP are found under Part IV of the Indian Constitution. Examples of DPSP are enabling education, maternity benefits, uniform civil code, maintaining nutrition standards, providing a standard of living, etc.

Article 36 to Article 51, under Part Ⅳ of the Indian Constitution, deals with the DPSPs. Their main objective is to create a welfare state. Article 36 defines “State” in the same way as that under Part III. For a further understanding of the same, click here.

Article 37 provides that the principles contained in Part Ⅳ shall not be enforceable by any court. However, they shall be considered fundamental in the governance of the country, and it also imposes a duty on the State to apply these principles when formulating laws.

The following are the highlights of the DPSPs:

Socio-Economic Welfare

Article 38: State to secure a social order for the promotion of the welfare of the people

It is the duty of the State to secure a social order for the promotion of the welfare of the people. Herein, the term “social order” includes providing social, political and economic justice to all its citizens. It also includes minimising inequalities in terms of income, facilities, opportunities, status, etc.

Article 39: Certain principles of policy to be followed by the State

It lays down certain principles which are to be followed by the State. Every citizen, whether man or woman, has the right to an adequate means of livelihood. The ownership and control of the people over any resources of the community must be distributed in a way that would serve the common good.

Social Security

Article 41: Right to work, to education and to public assistance in certain cases

The directive principles impose an obligation on the state to make provisions that ensure the right to work, education, and public assistance. The State may make these provisions while keeping in mind its economic capacity and development.

Article 42: Provision for just and humane conditions of work and maternity relief

Provisions must be made that ensure just and humane conditions for work and maternity relief.

Article 43: Living wage, etc., for workers

The State shall secure a living wage, a decent standard of living, and social and cultural opportunities for workers. This provision ensures that the workers are given fair wages and have a decent standard of life. This is an important article that ensures workers’ safety in industries.

Article 45: Provision for early childhood care and education to children below the age of fourteen years

Children below the age of 14 years have the right to early childhood care and education.

Article 46: Promotion of education and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections

The protection of SCs, STs and other weaker sections from exploitation is secured. This principle promotes the educational and economic interests of the weaker sections of society. The State must make provisions which protect these sections of society from all exploitative practices.

Article 47: Duty of the State to raise the level of nutrition and the standard of living, and to improve public health

This lays down the duty of the State to raise the levels of nutrition and the standard of living of the people and to improve public health.

Community Welfare

Article 44: Uniform civil code for the citizens

It deals with the uniform civil code for the citizens, which means establishing uniform civil laws throughout the territory of India. This gives effect to national integration by bringing all the diverse communities, religions and customs under a uniform civil code.

Article 48: Organisation of agriculture and animal husbandry

The State shall be obligated to organise agriculture and animal husbandry, as well as take steps to protect and preserve animal breeds, cattle, etc.

Article 40: Organisation of village panchayats

The State shall organise village panchayats and provide the required powers and authorities necessary for self-governance.

Article 50: Separation of judiciary from the executive

The State is required to take all necessary steps to keep the Judiciary separate from the Executive.

Article 51: Promotion of international peace and security

The State is obligated to promote international peace and security, maintain just and honourable relations between nations, abide by international laws and treaties and seek settlement for disputes through arbitration.

Relationship between fundamental rights and directive principles of state policy

The relationship between fundamental rights and DPSPs has faced several conflicts with respect to various matters that needed judicial intervention. The Judiciary’s approach over the past few years regarding these matters has undergone numerous changes. This raises the question of what would happen if any law enforces DPSPs but infringes on the fundamental rights of a citizen. The Judiciary’s interpretation and its approach towards this conflict has been an interesting one to look into. Let us understand every aspect of the relationship between fundamental rights and DPSPs.

Difference between fundamental rights and DPSPs

Despite the fact that both the fundamental rights and DPSPs aim to protect the welfare of the State and the rights of the citizens, there are several differences between them in various aspects. It is important to understand the same.

Objective

Fundamental Rights: India being a diverse country, has different religions, cultures, languages, and customs. The main objective behind the concept of fundamental rights is to ensure security and equal treatment to all the citizens of the country, regardless of the culture or race they belong to. It aims to safeguard the rights of minorities, protect religious freedom and provide equal opportunities to citizens.

In the case of People’s Union for Civil liberties vs. Union of India (2005), the Supreme Court stated that the object behind fundamental rights is to place the citizens at centre stage and hold the State accountable.

DPSP: The directive principles provide certain directions to the State in India regarding how, in what manner and for what reason they may exercise their power. The objective behind DPSPs is to guide the State in policy making and to establish India as a welfare state. The DPSPs ensure that the laws protect social, economic and political justice. Equal opportunities in terms of work, wealth, health and education must be provided to all citizens.

Enforceability

Fundamental Rights: Fundamental rights are enforceable in the courts of law. Under Article 32 of the Constitution, the remedy against the violation of fundamental rights in itself is a fundamental right. The Supreme Court has the power to issue writs or orders against any violation of these rights. The aggrieved person may either, under Article 226, approach the High Court or, under Article 32, approach the Supreme Court in case his/her fundamental right is violated.

In the case of Hindi Hitrashak Samiti vs. Union of India (1990), the Supreme Court has laid emphasis on Article 32. The jurisdiction conferred to the Supreme Court under the said Article is an integral part of the Indian Constitution, but violation of fundamental rights is essential for seeking enforcement of them by the Supreme Court. For the establishment of violation of fundamental rights, the Supreme Court may take into consideration any direct and inevitable consequences of the action, which is sought to be remedied.

DPSP: DPSPs are not enforceable in any court of law. It is a duty casted upon the State to implement it while making policies. Article 37 of the Constitution states that the provisions of DPSP shall not be enforceable but are nevertheless fundamental in the governance of the State. This means that if any law made by the State violates the principles of DPSP, it cannot be termed void.

In the case of Ashok Kumar Thakur vs. Union of India (2008), it was stated that since DPSPs are not enforceable in the courts of law, it does not mean that they are inferior. DPSPs stand for civil and political rights, whereas fundamental rights stand for social and economic rights.

Other key differences

Sr. No.	Point of Difference	Fundamental Rights	Directive Principles of State Policy
	Origin	They are inspired by the Bill of Rights in the Constitution of the United States.	These principles are adopted from the Irish Constitution.
	Scope	They are applicable to all citizens and non-citizens of India. At a micro level, it protects the rights of the individuals. However, its scope is limited.	These are applicable to the State and the agencies governed by the State that make laws. It has limitless scope, protecting the rights of citizens, and it works at the macro level, aiming to achieve a welfare State.
4	Nature	They introduce an egalitarian society and ensure basic human rights to each citizen.	These principles seek to achieve a welfare state.
	Legal Provisions	These rights are provided under Article 12 to Article 35 of the Indian Constitution.	These principles are provided under Article 36 to Article 51 of the Indian Constitution.
	Duty of State	Fundamental rights refrain the State from taking prejudicial action against individuals and, thus, impose a negative duty on the State.	These principles obligate the State to take positive actions.
	Punishment	Violation of Fundamental Rights is punishable.	Violation of Directive Principles is not punishable.
	Justiciability	If any act or law violates the fundamental rights of a citizen, it can be declared void, invalid or unconstitutional.	If any act or law violates the directive principles, it still cannot be termed void or unconstitutional.
	Suspension during Emergency	Except for Article 20 and Article 21, all other fundamental rights are suspended during the emergency.	These are never suspended.

Conflict between fundamental rights and DPSP

The relationship between fundamental rights and DPSP is a controversial topic. At a macro level, this conflict works for the benefit of the community. However, at a micro level, it benefits the individuals. The Judiciary plays an important role in resolving conflicts between DPSP and fundamental rights. Mentioned below are a set of cases wherein the Judiciary has closely analysed the conflict.

The State of Madras vs. Champak Dorairajan(1951)

In this case, Smt. Champak Dorairajan, a Brahim woman from Madras, was denied admission to a medical college despite having enough grades. The denial was based on a Communal GO (Government Order) issued by the State government. The division of seats was based on the basis of religion, race and caste. The High Court of Madras decided in favour of the woman because there were fewer seats available in her category. This case was further appealed in the Supreme Court.

As per the respondent, the fundamental right guaranteed under Article 14, Article 15, Article 16 and Article 29(2) of the Constitution of India had been violated. This brings up the question of whether the provisions of DPSP under Article 46 override the fundamental right under Article 29 (2).

The Supreme Court held that DPSP cannot override the provisions of Part III of the Constitution of India, i.e. the fundamental rights. The Supreme Court held the Communal GO to be a clear violation of the fundamental rights under Article 29(2). It was declared to be void under Article 13 of the Constitution of India. The court, in this matter, completely rejected the idea that the DPSPs can override the provision of Article 29(2). The court ruled that the fundamental rights would be reduced to ‘a mere rope of sand’ if they were to be overridden by the directive principles. It was held that because Article 37 expressly states that directive principles can’t be enforced by a Court, it cannot override the fundamental rights. Additionally, the court observed that the directive principles must run subsidiary to the fundamental rights.

Hence, a literal approach was taken by the court in this case. Later, the Supreme Court’s interpretation regarding the relationship between the fundamental rights and directive principles changed.

Golak Nath vs. The State of Punjab, 1967

This is a landmark case on fundamental rights. In this case, the petitioners had challenged the Punjab Security and Land Tenures Act, 1953 (herein referred to as PSLTA) and the validity of the Constitution (Seventeenth Amendment) Act, 1964. The PSLTA was challenged on the ground that it violates the fundamental rights under Article 14 and Article 19(1)(f), depriving them of the right to property. The Seventeenth Amendment Act was challenged because it brought an amendment to Article 31A. The question was whether the parliament has the power to amend the fundamental rights guaranteed under Part Ⅲ of the Constitution of India.

The Supreme Court held that Fundamental rights cannot be diluted, abridged, diminished, finished or even taken away. This had been reverted by the Amendment Act, which inserted Article 31C, which is mentioned under Part Ⅲ of the Constitution now, which states that any law made under Article 39(b) of the Constitution which states about the material resources of the community and Article 39(c) which talks about the operations for an economy. Additionally, in a case where any law is framed under the provision of DPSP, and if such a law violates Article 14, Article 19 and Article 21, then the court should not declare it to be void merely on this ground.

Re: Kerala Education Bill (1957)

The Kerala Education Bill, 1957, was presented by the Education Minister of Kerala and was kept as a reserved bill by the Governor of Kerala for consideration by the President. The Kerala Education Bill infringed certain fundamental rights regarding the rights of minorities, which are guaranteed under Article 29 and Article 30 of the Indian Constitution. The Bill was presented before the Supreme Court by the President, as per Article 143 (power of the President to consult the Supreme Court).

In this case, the question before the Supreme Court was whether the clauses provided in the Bill violated Article 14, Article 30(1) and Article 226 of the Constitution. Chief Justice Das, observed the court should adopt the view that directive principles cannot be completely ignored while determining the scope and ambit of fundamental rights. Further, the courts must adopt the principle of harmonious construction.

Kesavananda Bharati vs. State of Kerala (1973)

In this case, the petitioner had challenged the Kerala Land Reforms Act, 1963 wherein the State Government was entitled to acquire some property which belonged to the petitioner. The remedy available under Article 32 of the Constitution was sought against the violation of the rights guaranteed under Article 25, Article 26, Article 14, Article 19(1)(f) and Article 31 (Compulsory acquisition of property. Now repealed, through 44th Amendment, 1978.) During the pendency of this suit, the government had passed another Act, which was, the Kerala Land Reforms (Amendment) Act, 1971.

The validity of the 24th, 25th and 29th Constitution (Amendment) Act was challenged before the Court. The Supreme Court held that any part of the Constitution can be amended without destroying the basic structure of the Constitution. The court stated that there is no inconsistency between the directive principles and the fundamental rights, in fact they supplement each other. Hence, the courts could apply harmonious construction which advances the object of the Constitution.

The Court declared that the second clause under Article 31C was unconstitutional and void. The Court decided that it was against the doctrine of basic structure. However, the first clause was held to be valid. In order to neutralise this, the Government brought in the Constitution (Forty-Second Amendment) Act, 1976, which extended the scope of Article 31C.

Pathumma vs. The State of Kerala (1978)

In this case, the appellants had appealed the constitutional validity of Section 20 of the Kerala Agriculturists’ Debt Relief Act, 1970, which enabled the debtors to recover their debts by selling the property in execution of a debt liquidation decree. The issues before the Court were whether Section 20 of the Act falls within the power of the State legislature and whether Section 20 violates the fundamental rights under Article 14 and Article 19.

The Supreme Court upheld the validity of Section 20. The provision was held to be reasonable and in the public interest. The Court highlighted the objective of the directive principles. It stated that by introducing a combination of both of these, the Constitution aims to fulfil the social-economic goals of the country. A similar concept is observed in several other cases as well.

Minerva Mills Case vs. Union of India (1980)

In this case, the 42nd Amendment Act,1976, Article 31C and Article 368 (power of Parliament to amend the Constitution and procedure thereafter) of the Constitution were challenged. These amendments intended to neutralise the decision of the Supreme Court in the case of Kesavananda Bharati vs. State of Kerala (1973).

Amendment of Article 31C prescribed that the court cannot strike down any legislative act which gives effect to the DPSP and cannot hold it to be unconstitutional on the basis that it violates fundamental rights. The question of law in this case was whether amendments to Article 31C and Article 368 are constitutional and whether DPSPs can be preferred over the fundamental rights.

The Court imposed some restrictions on the protection given to the directive principles. It held that Article 31C shall only be protected if it is to implement the directive principles under Article 39(b) and Article 39(c). The Supreme Court had imposed such restrictions after this case and declared that giving protection to DPSP shall be termed as void and unconstitutional.

The Court clearly applied the Doctrine of Harmonious Construction and made an attempt to balance the fundamental rights and DPSPs. Herein, the Supreme Court introduced the Doctrine of Harmonious Construction, which states that the provisions of Part Ⅲ and Part Ⅳ of the Constitution must go hand in hand. This shall avoid a situation of conflict that arises while enforcing DPSPs and fundamental rights. Hence, the provisions of the Constitution should be interpreted in a manner that would ensure harmonious working. Further, it was stated that, in case no inherent power is present, no conflict shall arise, but wherein the conflict arises because of the court’s interpretation, then in such a situation, the court must attempt to give effect to both the provisions of the Constitution. The connection between them must be established in such a manner that no amendments are required. However, if, even after considering this approach, the conflict is unresolved, the fundamental rights must be implemented.

State of Kerala vs. N.M.Thomas (1975)

In this case, Rule 13-AA of the Kerala State and Subordinate Services Rules, 1958, was in contention. These rules exempted the Scheduled Castes and Scheduled Tribes from passing tests for promotions. It was challenged on the basis that it violated Article 16(4), and Article 335 (claims of scheduled castes and scheduled tribes to services and posts) of the Constitution.

The Supreme Court held that such exemption from qualification affects the efficiency of administration and violates both Article 16(4) and Article 335. The Court again emphasised that all efforts should be made to ensure that fundamental rights and DPSPs are built in a way that all the conflicts between them are resolved.

Olga Tellis vs. Bombay Municipal Corporation (1985)

According to Section 314 of the Bombay Municipal Corporation Act, 1888, the Maharashtra Government and corporation decided to forcibly remove all pavement and slums from the city of Bombay. This case challenged the same under Article 32 of the Indian Constitution, on the grounds of violation of Article 14, Article 19 and Article 21. There were some major issues raised before the courts regarding fundamental rights- whether the right to life, included the right to livelihood under Article 21 of the Indian Constitution and whether estoppel can be claimed against the violation of fundamental rights.

The Supreme Court held that the provisions of the Bombay Municipality Act is not unreasonable and no one has the right to encroachment. The Supreme Court held that DPSPs are fundamental in the governance of the country and hence, it should be given importance equal to that of the meaning and concept of fundamental rights.

Dalmia Cement vs. Union of India (1996)

In this case, the Supreme Court said that Fundamental rights and DPSPs are supplementary and complementary to each other. Fundamental rights and DPSPs are the conscience of the Constitution. The Supreme Court emphasised that the commitment of the Constitution to the social revolution, through rule of law, depends on the supplementary and complementary relationship between fundamental rights and the directive principles.

Ashok Kumar Thakur vs. Union of India (2008)

In this case, the constitutional validity of the Constitution (Ninety-Third Amendment) Act, 2005 was challenged, claiming that it violated the basic structure of the Constitution. The validity of Article 15(5) of the Indian Constitution was also challenged. The extension of reservation to 27% was the point of contention. There was a conflict between Article 15 and Article 46 of the Constitution.

The Supreme Court held that the Constitution (Ninety-Third Amendment) Act was valid. It can be applied to the state-maintained institutions and educational institutions. It stated that Article 15 and Article 46 cannot be said to be different. Herein, the fundamental rights deal with the civil and political rights and the DPSP relates to the social and economic rights.

The above-mentioned cases explain that fundamental rights and DPSPs are complementary. None of them is superior to the other.

Critical analysis

The Judiciary has played a crucial role in balancing the importance of both fundamental rights and directive principles. In Kesavananda Bharati vs. State of Kerala (1973), Hegde and Mukherjea, JJ observed, “The Fundamental Rights and Directive Principles constitute the conscience of the constitution. There is no antithesis between the Fundamental Rights and Directive Principles. Each one supplements the other.”

Indeed, the Supreme Court has considered the fundamental rights and the DPSPs to be complementary to each other. It has ensured that the non-enforceability of DPSPs should not result in fundamental rights overriding them. As the mentioned case laws indicate, the Court has made it amply clear on various occasions that the directive principles and the fundamental rights should be considered as “fundamental” for the governance of the State, and none of them should be isolated. It is indicated in the case of Javed vs. State of Haryana, (2003) that the fundamental rights must not be read in isolation but along with the directive principles and fundamental duties.

There are a plethora of cases that have laid out how fundamental rights must be read along with directive principles, which has eventually helped the country to strive towards the aim of achieving the objectives of both the fundamental rights and directive principles. This has expanded the ambit of fundamental rights rather than restricting it. It has made the rights enshrined under the DPSPs to be enforceable through the fundamental rights. The best example of this is the right to education. The Supreme Court has advocated the same in the case of Unni Krishnan vs. State of Andhra Pradesh (1993)– “Fundamental Rights are but a means to achieve the goal indicated in the Directive Principles. Fundamental Rights must be constructed in the light of the Directive Principles”.

The Supreme Court highlighted the importance of balance between the fundamental rights and DPSPs in the case of I.R. Coelho vs. State of Tamil Nadu (2007), stating that it is the responsibility of the Government to adopt a middle ground, balancing individual liberty under fundamental rights and attaining public good under DPSPs. However, it is to be noted that the balance must not overturn individual liberty, which is the essential feature of the Constitution.

Hence, the fundamental rights and the directive principles are to be balanced in a manner that enables both of them to coexist harmoniously and prevent them from overriding each other. This is extremely important to achieve the social, political and economic welfare of the State.

Conclusion

The basic feature of the Constitution is to maintain harmony between fundamental rights and DPSP. Despite the different objectives and approaches of the two, they are supplementary and complementary to each other. Fundamental rights provide and secure basic human rights to the citizens, whereas DPSPs aim to provide the guidelines required by the State to implement legislations and policies which best serve the welfare of the State and the public. Both of them are equally important to ensure a just and equitable society. To maintain a good balance between them is to ensure that the individuals have access to rights and liberties and that the State can achieve the desired goals.

Frequently Asked Questions(FAQs)

Why are the directive principles not enforceable?

The directive principles are constitutional and moral obligations upon the State and not a legal one. If the country makes DPSPs enforceable, it may face a major financial crisis. The enforcement of all the DPSPs might create major governance issues for the State. However, the State can make laws on the basis of the directive principles, which can be held enforceable in the courts of law.

Are DPSPs at par with fundamental rights?

The DPSPs and the fundamental rights are complementary to each other. It cannot be said that DPSPs are at par with the fundamental rights, due to the major differences of justiciability, enforcement in the courts, and the objectives. However, they both play a crucial role in the development of the State.

Are all human rights fundamental rights?

No. Human rights refers to all the rights regarding human beings, irrespective of their caste, class, religion, or citizenship. Fundamental rights are specifically considered to be fundamental by a particular country. For instance, human rights may include the right to freedom of religion, but a country like France may not consider it to be a fundamental right. All fundamental rights are human rights, but all human rights are not fundamental rights.

Can a law be declared unconstitutional if it violates DPSP but upholds fundamental rights?

In the Indian Constitution, in cases wherein the law violates a DPSP but upholds fundamental rights, it cannot be declared unconstitutional. The reason behind this is that while fundamental rights are justiciable and enforceable, DPSPs are not. There has been a series of judgements which termed such laws which violate fundamental rights as void and unconstitutional, but no law can be declared unconstitutional or void because it violates DPSPs.

What is the doctrine of harmonious construction?

The doctrine of harmonious construction means the interpretation of two legal principles in a way that would ensure they do not override each other. Their interpretation must be done in a manner that promotes harmony between the two. Fundamental rights and DPSPs have different rules on enforceability as well as justiciability. Hence, they face conflicts in terms of various aspects, wherein one may override the other. In such a case, the doctrine of harmonious construction is applied. This shall be the responsibility of the State and the courts of law wherein the question regarding individual liberties and public good arises. Hence, the doctrine of harmonious construction is crucial.

Reference

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Franchise agreement termination and renewal

By

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July 23, 2024

This article has been written by Shivam Sharma pursuing a Diploma in International Contract Negotiation, Drafting and Enforcement from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

Intellectual property rights (IPR) are the rights given to a person over the creation of their minds, like patent rights over the creation, invention, and discovery of anything that is one of its kind and has a revolutionary impact on the market, copyrights over a written document or any visual representation, and the trademark or service mark of a company that distinguishes it from its other competitors. They usually give the owner or assignee an exclusive right to use his/her intellectual property. Such intellectual property is acquired and registered to exploit it for commercial purposes. Such commercial use of intellectual property can be done by its owner in several ways. Such as

Business: Use of intellectual property to generate revenue by it (i.e., by manufacturing and selling products under a brand name, selling such distinguished products and services, and expanding the business as the person has exclusive rights over such trademarks and legal remedies against unauthorised use or infringement).
Assignment: Assignment of intellectual property rights is the process of transferring ownership rights over an intellectual property by the owner (assignor) to another party (assignee) for consideration.
Franchising and licensing: Franchising intellectual property rights refers to granting permission or licencing specific intellectual property assets to a third party (franchisees).

Franchising agreement

A franchising agreement is a legally binding contract between a franchisor (the owner of a business concept, brand, and intellectual property) and a franchisee (an individual or entity granted the rights to operate a business under the franchisor’s brand and business model).

The franchise agreement grants the franchisee the right to operate a business or offer, sell, or distribute goods or services identified or associated with the franchisor’s trademark. In exchange, the franchisee makes one-time or periodical payments to the franchisor in the amount, terms, and conditions established in the franchise agreement. The franchisee may have to make one-time, monthly, quarterly, or annual payments to the franchisor.

This agreement outlines the rights, obligations, responsibilities, and terms of the franchise relationship. Franchising agreements are complex legal documents tailored to the specific requirements and characteristics of each franchise system

Licencing and franchising can be used to commercially exploit all kinds of intellectual property, such as copyright, trademarks, patents, trade secrets, and confidential information.

McDonalds, Subway, Starbucks, and KFC are most well-known examples of franchising globally. All these food chains operate thousands of franchise locations worldwide. Franchisees are granted the right to use the brand trade name, menu operational system, and marketing strategies, and in return, they are liable to pay the franchisor with consideration. Royalty (or franchising fee in the case of franchising agreement)

Various clauses in a franchising agreement

A franchising agreement typically contains various clauses that outline the rights, responsibilities, obligations, and terms of the franchise relationship between the franchisor and the franchise, such as:

Parties to the agreement
Date and time of execution
Grant of franchise (recitals)
Definition and interpretation clause
Franchise territory
Operation standards
Training and support
Confidentiality and non-disclosure
Rights and obligations of the franchisor and franchisee
Consideration, mode of payment, and default
Representation and warranties
Non-compete clause
Non solicit clause
Term and termination
Confidentiality and intellectual property rights
Consequences of termination and applicable post-termination obligation
Miscellaneous (boilerplate) provisions

Laws governing franchise agreement

The Indian Contract Act, 1872:
- Enacted to govern the formation, interpretation, performance, and enforcement of contracts in India.
- Provides a framework for creating legally binding agreements, including those related to franchising.
- Outline the essential elements of a valid contract, such as offer, acceptance, consideration, capacity, and legality.
- Establishes rules for interpreting and enforcing contracts, including provisions on breach of contract and remedies.
The Competition Act, 2002:
- Aims to promote competition and prevent anti-competitive practices in the Indian market.
- Prohibits agreements and behaviours that may restrict competition, such as cartels, price fixing, and abuse of dominant position.
- Includes specific provisions related to franchising, such as the prohibition of exclusive dealing arrangements and tying arrangements that could limit competition.
- Enforced by the Competition Commission of India (CCI), which has the authority to investigate and impose penalties for anti-competitive practices.
The Indian Trademarks Act, 1999:
- Provides legal protection for trademarks used in India, including those related to franchising.
- A trademark is defined as a mark capable of distinguishing the goods or services of one person from those of others.
- Establishes the process for registering trademarks and provides for the exclusive rights of trademark owners.
- Prohibits the unauthorised use of registered trademarks, including by franchisees, and provides remedies for trademark infringement.
The Copyright Act, 1957:
- Offers legal protection for original works of authorship, including literary, dramatic, musical, and artistic works.
- Extends protection to copyright works used in franchising, such as logos, designs, and marketing materials.
- Provides exclusive rights to copyright owners, including the right to reproduce, distribute, and adapt their works.
- It prohibits the unauthorised use of copyrighted works, including by franchisees, and provides remedies for copyright infringement.
The Foreign Exchange and Management Act, 1999:
- Regulates the transfer of funds and other financial transactions related to international franchising.
- Governs the repatriation of profits, royalties, and other payments from franchisees located in India to franchisors located abroad.
- Outline the procedures for obtaining necessary approvals and licences for foreign exchange transactions related to franchising.
- Enforced by the Reserve Bank of India (RBI), which has the authority to monitor and regulate foreign exchange transactions.

Termination of franchising agreement

The Termination of the Franchising agreement refers to the legal process of ending the contractual relationship between the franchisor and the franchisee.

Termination of a franchising agreement is a significant legal step that requires careful consideration and adherence to the terms outlined in the franchise agreement itself, as well as any applicable laws and regulations.

Reasons for termination of the agreement

Breach of the contract (franchising agreement)

Failure to pay royalty: If the franchisee fails to pay the initial franchising fees, ongoing royalties, advertising fees, and other payments as stipulated in the agreement.
Noncompliance with the operational standard: Breach of operational standards, including failure to maintain quality standards, follow branding guidelines, meet customer service expectations, or adhere to product/service specifications.
Violation of franchising policy: Noncompliance with the franchising policies and procedures, such as marketing requirements, supplier agreements, reporting obligations, or territorial restrictions.
Misuse of intellectual property: Unauthorised use or infringement of the franchisor’s trademark, logos, trade secrets, copyrights, and other intellectual property.

Failure to meet the performance requirement

Underperformance: If the franchisee consistently fails to meet performance targets, sales, and goals.
Loss of business reputation: Actions or conduct that tarnish the franchise’s reputation, such as unethical practices, poor customer service, or any legal violation.

Bankruptcy or insolvency

Franchisor bankruptcy: If the franchisor becomes bankrupt or insolvent, resulting in an inability to support the franchise system, provide necessary service, or maintain brand standards.
Franchisee bankruptcy: If the franchisee files for bankruptcy or becomes insolvent, leading to an inability to fulfil financial obligations or operate the business effectively.

Mutual agreement

Voluntary termination: Both parties may agree to terminate the franchise agreement mutually, often due to strategic business decisions, market changes, and other mutually beneficial reasons.

Expiration of term

End of the Contract Term: If the franchise agreement has a fixed term rather than a perpetual term and it expires without renewal, then it leads to the termination of the franchise agreement.

Legal or regulatory compliance

Noncompliance with the law: Violation of local, state, or central laws, regulations, and industry standards that impact the franchisee operation.
Failure to obtain licences and permits: Inability to obtain the necessary licences, permits, certifications, and approvals required to operate the franchise legally.

Material misrepresentation or fraud

Miss Representation: Providing false, misrepresenting or inaccurate information in the representation clause of the franchise agreement; and non-disclosure of any material fact.
Fraudulent activities: Engaging in fraudulent activities, deceptive practices, or other illegal conduct that undermines the integrity of the franchise operation

Force majeure events

Natural disasters: Unforeseeable events beyond the control of either of the parties, such as Natural Disasters, Acts of Terrorism, War, Civil unrest, and Government actions that make it impossible or impracticable to continue the franchisee operation

Notice requirements for termination

The franchise agreement typically specifies the notice period required for termination. This notice period provides both the franchisor and franchisee with sufficient time to prepare for the termination and minimise disruptions to their business operations. The notice must be in writing and should be delivered according to the agreement’s terms, which may include specific requirements for the form and manner of delivery, such as certified mail or personal service.

The notice should state the grounds for termination, which may include material breaches of the franchise agreement, such as failure to meet sales quotas, non-payment of royalties, or violations of the franchisee’s operating standards. It’s important to note that the grounds for termination must be clearly and specifically stated, as they will form the basis for any legal proceedings that may arise from the termination.

The notice period may vary depending on the specific terms of the franchise agreement. It’s common for franchise agreements to include a provision for a cure period, which allows the franchisee to address the grounds for termination within a specified timeframe. During this cure period, the franchisee can take steps to remedy the breach or violation and bring their business operations into compliance with the franchise agreement.

If the franchisee fails to cure the breach or violation within the specified timeframe, the franchisor may proceed with the termination of the franchise agreement. It’s important for both parties to carefully review the termination provisions of the franchise agreement and to comply with the required notice period and procedures to ensure a smooth and orderly termination of their business relationship.

Termination procedure

Following the formal notification of termination, both the franchisor and franchisee may engage in discussions and negotiations regarding the terms and conditions of the termination. This can involve a range of issues, such as:

Return of assets: The franchisee may be required to return any assets provided by the franchisor, such as signage, equipment, and marketing materials.
Payment of outstanding fees: Any outstanding fees or royalties owed by the franchisee to the franchisor should be settled during this process. This includes any outstanding royalties, advertising fees, or other payments due under the franchise agreement.
Resolution of disputes: If there are any outstanding disputes or disagreements between the parties, they may be addressed during the termination discussions. This could include issues related to intellectual property, customer lists, or non-compete agreements.

In addition to these discussions, the franchisor may conduct an audit or inspection of the franchisee’s business. This is done to assess the franchisee’s compliance with the termination conditions and to facilitate the transfer of assets or operations. This audit may involve:

Financial review: The franchisor may examine the franchisee’s financial records to ensure that all outstanding payments have been made and that the franchisee has complied with any financial obligations under the franchise agreement.
Inventory assessment: The franchisor may take inventory of the franchisee’s assets, including products, supplies, and equipment, to determine what should be returned or transferred to the franchisor.
Compliance with standards: The franchisor may inspect the franchisee’s business premises to ensure that the franchisee has complied with all brand standards and guidelines during the term of the franchise agreement.

The purpose of this audit or inspection is to ensure a smooth and orderly transition of the franchise business back to the franchisor and to protect the franchisor’s brand reputation and intellectual property.

Asset return and transition

Upon termination, the franchise is usually required to return all franchisee-related assets, including signage, equipment, inventory, and intellectual property materials, as specified in the agreement.

The franchisor may provide guidance and assistance in transitioning the business back to the franchisor’s control or to the new franchisee, if applicable.

Financial settlements

The termination process of a franchise agreement often entails various financial settlements between the franchisor and franchisee. These settlements may include:

Refunds and deposits:
- The franchisor may be required to refund any initial fees or deposits paid by the franchisee upon entering the franchise agreement.
- Conversely, the franchisee may be responsible for refunding any outstanding balances or fees owed to the franchisor.
Payments for outstanding royalties or debts:
- The franchisee will typically be obligated to pay any outstanding royalties or debts due to the franchisor upon termination.
- This may include unpaid franchise fees, marketing fees, or royalties on sales made during the franchise period.
Compensation for investments:
- In some cases, the franchisee may have made significant investments in the franchise business, such as renovations or equipment purchases.
- During termination, the franchisor may be required to provide compensation for these investments to the franchisee.
- The amount of compensation may be determined through negotiations or based on the terms of the franchise agreement.
Settlement of franchise assets:
- Upon termination, the franchisee may be required to return or dispose of franchise-related assets, such as signage, uniforms, or promotional materials.
- The franchisor may provide guidelines or instructions for the proper handling of these assets.
Non-compete agreements:
- Some franchise agreements include non-compete clauses, which prevent the franchisee from engaging in similar businesses within a certain geographic area or time frame after termination.
- Financial settlements related to non-compete agreements may include compensation for the franchisee’s lost income during the restricted period.
Franchisee’s obligations:
- The franchisee may be required to fulfil certain obligations upon termination, such as providing notice to customers, employees, and suppliers.
- Failure to meet these obligations may impact the financial settlements or result in additional fees.
Dispute resolution:
- If any disputes arise during the termination process, involving financial matters or otherwise, the parties may attempt to resolve them through mediation or arbitration.
- In some cases, legal action may be necessary to reach a resolution.

The financial settlements involved in the termination process of a franchise agreement are crucial for ensuring a fair and equitable outcome for both the franchisor and franchisee.

Post-termination obligations

Certain obligations may continue after termination, such as non-compete clauses, confidentiality or non-disclosure agreements, or restrictions on the use of the franchisee’s trademark or proprietary information.

Renewal of franchise agreement

Renewal of a franchise agreement refers to the process by which the existing contractual relationship between the franchisor (owner of the franchise business) and the franchisee (operator of the franchise business) is extended beyond the initial term as decided in the franchise agreement.

Renewal of the franchise agreement may involve the following steps:

Step 1

Start by reviewing the terms and conditions related to renewal outlined in the existing franchise agreement. The term typically specifies the renewal process, conditions, and timing.

Step 2

Determine the timeframe for providing a notice of renewal of notice intent as stipulated in the franchise agreement. This notice is usually required well in advance of the expiration date to initiate the renewal process.

Step 3

The franchisor may conduct a performance evaluation of the franchisee’s business during the term leading up to renewal. This evaluation may include financial performance, operational compliance, customer satisfaction, and adherence to brand standards.

Step 4

The franchise agreement may offer different renewal options, such as:

Renewal by mutual agreement: Both parties mutually agree to renew the agreement based on negotiated terms and conditions.
Automatic renewal: The agreement may specify automatic renewal unless either party provides notice of non-renewal within a certain period.
Franchisor’s discretion: The franchisor may have sole discretion to approve or deny renewal based on specific criteria.

Step 5

If the franchise agreement allows the negotiation of renewal terms, the franchisor and franchisee may engage in discussions to modify certain terms, such as renewal fees, royalties rate, territory expansion marketing obligation, or operational requirements.

Step 6

Once renewal terms are agreed upon, the parties typically enter into a renewal agreement or an amendment to the existing agreements. This document outlines the renewed terms, the duration of the renewal, and any changes or modifications from the original agreement.

Step 7

The franchisee may be required to pay renewal fees as specified in the renewal agreement. These fees may cover administrative costs, updates to training material, access to updated systems or technologies, or other benefits associated with renewal.

Step 8

The franchisee may need to demonstrate continued compliance with franchise standards, attend refresher training programmes, and implement any new operational protocols for branding initiatives introduced during the renewal process.

Step 9

Both parties should have the renewal agreement reviewed by legal counsel to ensure compliance with legal requirements, protection of rights, and clarity of terms. Once finalized, the renewal agreement is executed by both parties.

Step 10

After renewal, the franchisee continues operating the franchise business under the renewed terms and benefits from ongoing support, training, market initiatives, and brand recognition provided by the franchisor.

Conclusion

These grounds of termination and the procedure of the termination may vary depending on specific provisions outlined in the franchise agreement, applicable laws, industry standards, and the discretion of the franchisor based on the circumstances in each case. Both parties need to understand the rights, obligations and potential consequences related to termination under the franchise agreement and both the franchisor and the franchisee need to communicate effectively, collaborate on renewal terms, and adhere to contractual obligations through the renewal process to maintain a positive and mutually beneficial franchise relationship.

References

Sakuma Exports vs. Louis Dreyfus Commodities Suisse S.A.

By

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July 22, 2024