Creativity and content, in a way, go hand in hand. It’s like words that connect to a picture or drawing, making sense of the frame and spinning a story around the characters in the frame, bringing them to life. So much like the fairy tale books, all of us have been enamoured as kids. The characters actually, at a certain point, begin to talk, leading to a conversation- the thrill every child experiences.
Content when creatively structured and marketed is used in every industry to make a pitch and make a sale, on the way leaving an impact that ensures the customer goes looking for the product that somewhere has stuck in their mind. The mind remembers colours, visuals, words, quotes, anecdotes, and personalities and uses them as a thread to buy or use a product. In today’s world of consumerism, impression makes a big impact both for the seller and buyer. The buyer is king and the scales are always tilted to attract, generate, retain, and multiply clients.
Popular mediums and strategies used by them
Design and advertising as the words in a way self-define their line of business and spell creativity from beginning to end. Design and advertising firms have great methods to build brand authority and leverage the brand to attract clients.
Some of the popular mediums and strategies used by them can be summed up as follows:
Visual storytelling
The eyes, ears, and mind work in synergy, the outcome is etched almost effortlessly in an individual. Visual communication with matching content, great tunes, maybe with a celebrity touch, and great script is a lethal combination that rarely can go wrong. A story using these ingredients as an infographic, a video film, or an interactive platform leaves a lasting impression. Every hand today holds a device, the reach of good content catches up like wildfire or in today’s terms viral fire.
Illustrating portfolio projects
Work done successfully ought to be showcased for the world to appreciate and applaud. Projects of Design and Advertising firms usually work with a rainbow of shades, colours, structures, shapes, tones, and variations. Placing them together on a canvas to create impressive and creative masterpieces will engage a potential client. More than a film, what happens during the making of that film is what we humans love to watch and hear. Similarly, highlighting the challenges, mess-ups, and rectifications process and eventually showing the world the outcome is in a way advertising the company’s capabilities to deliver only the best.
Awareness content
Being aware in today’s world is half the battle won, both as seller and buyer. Buyers, today, have access to information that can make or break a deal. Hence, when Design and Advertising firms position themselves as information givers, hold informative seminars and Q & A sessions, share usage guides, or share the company’s vision and expertise that will add value or solve problems of existing / potential clients it’s taken very positively.
Interactive sessions
One-on-one or in groups. When a company gives time one-on-one, the client feels prioritized and important. Information shared and doubts cleared in a way bring the potential client one step forward at becoming a sure-shot client.
Group sessions – when the company engages in games, quizzes, debates, virtual experiences, and webinars, this helps understand many viewpoints (both as buyer and seller), and when views are aired in the group the positives uplift the brand exponentially. It can work the other way too. However, when a brand is confident of its stature/equity, this kind of group session always and will take them to a larger target client space.
Collaborating and partnering
Like the merging of two rivers, when design and advertising firms partner or collaborate with other complimentary businesses or influencers, they reach audiences that would not have been possible if they played the game alone. A partner would collaborate only when they know a brand is worth their time and money and when the name is good, it is a win-win situation for both. Influencers influence and influence if on the right track will always make great business sense.
User contribute content
When a user is given a chance to give their feedback in a creative way to the design and advertising firm, they work as a boost to the contributor and a brand-enhancing activity for the firm. Involving users in content, challenges, or interactive sessions, especially when they are given screen time, to be seen and heard viz-a-viz the brand, one (the firm) goes back satisfied with the exposure and the other (the user) goes home with a gift, prize, certificate, photograph which may be with a celebrity – but most of all a high and allegiance to the brand.
Stimulating campaigns
Emotions play a big role in stirring the preferences of a person towards a product, service, or anything that money can buy. When design and advertising firms develop campaigns that catch the attention of a client going the emotional route, the impact is deep and lasting. The connection just builds up and if continued on the same lines it can become the face of the brand
There are umpteen examples where Design and Advertising firms use the above formulas to launch products, consolidate their position, hold on to the market share, or just hover in the minds of people.
Few examples of international brands
Few examples of international brands whose Design and Advertising firms have helped them reach the top, stay there, and grow:
Nike uses athletes to promote their shoes. Big names in the sports world associate their names with Nike, which speaks volumes about the quality of the shoes
KFC adapts to the local palette and market, whichever country they set up the chain.
McDonald and fries the logo, the taste, and the indulgence. Even a healthy body craves it at some time or the other. They give consumers what they want, maintaining their brand and catering to the youngest and the oldest in a family with lip-smacking ease
Apple has become the topmost brand by using all of the above strategies. It’s a status symbol to use an Apple product – everything else just follows, and they keep up their promise of keeping the user on top in terms of technology. The rest follows.
Ben & Jerry’s Ice Creams. Ice-creams are ice-creams, yet when it’s Ben & Jerry offers its frozen treat in different countries to suit the taste of that country, it makes this pair demand space in your freeze.
In India too we have many and to name a few
Amul – The Taste of India. A tag line that goes places. The advertisement for current affairs in every field is very skilfully portrayed with puns intact (Helmed by Rahul DaCunha, copywriter Manish Jhaveri, and illustrator Jayant Rane) can never be missed in advertisements – print and visual media and also the huge billboards across the country. The morning toast is not the same without Amul butter.
Nykaa – touched the hearts and souls of women from head to toe. Using mixed strategies, they are the top of the options when women think of fashion or beauty.
Reliance Jio – A big name, a big founder, and a big budget. Jio offers the best deals and then makes it a much-needed service that will not go down in your list of must-haves, yet keeping costs affordable.
There are many more, and the tackling of an Indian heart and mind is done beautifully by content creators who work on the design and advertising of a brand. Indians are intelligent and aware people, simple, yet indulgent. A great mix that has the potential to be tapped from all corners.
In a society that thrives on consumerism, if a brand does not use the right Design and Advertising firm to leverage creative content to boost their product or service, it’s not wrong to say they won’t survive for too long. The competition is so strong and cut-throat that if you do not give it your 500% or rather not up your game as compared to your competition, it’s like going back to the drawing board to start from scratch.
Conclusion
To conclude, a great analogy if seen from the right perceptive puts this story together. A car’s body, the best model, shade, and name are no good, if what’s inside is not as good as the quality the name stands for. Also, if the components within are not in perfect synchronisation, the output promised will certainly fail the basic test. Hence, a brand has to work from the outside to the inside and the other way around. To do that you need a driver/individual in the driver’s seat to move it, speed it up, and accelerate according to the road ahead, taking care of warning signs, signals, speed breakers, and weather conditions.
A product, service, or brand requires a good driver to help manoeuvre it on the platforms that are in plenty out there. Design and advertising firms are those good drivers, and when they use content that connects, creative content, and content that conveys the truth and genuinely of the brand in a way that leaves a lasting impact. The leverage it gets only looks upward – directly proportional to the profits, added value, and popularity of the brand.
Creativity has been around for ages and will be around forever. Its approach, texture, shapes, and strokes may change but its core remains unique, original, and inspirational.
In the suit for specific performance of the contract, the purchaser has to prove his readiness and willingness in terms of his payment of consideration. The purchaser is bound to show his willingness to complete the sale transaction by tendering the amount of sale consideration. The purchaser has already paid part of the consideration and agreed to pay the balance of the consideration in the time envisaged under the agreement to sale. During the stipulated time and period, the purchaser failed to pay the balance amount of consideration or comply with the other terms and conditions of the agreement to sell. Then the seller has every right to terminate the agreement to sell on account of non-payment of consideration. Then the question remains that if the purchaser has no funds, will it amount to readiness and willingness? We will discuss this in light of below mentioned provisions of the Specific Relief Act of 1963 and citations from the Hon’ble Court. So let’s dive in.
What are readiness and willingness
In a suit for specific performance of the contract, the plaintiff must plead, and prove that he was ready and willing to perform his part of the contract right from the date of the contract up to the date of filing the suit. It is a well established legal principle that ‘readiness’ and ‘willingness’ are matters that have to be proved substantially and not left to mere ceremony and form.
In Sub-Section (c) of Section 16 of the Specific Relief Act, 1963 (1963 Act), which contemplates readiness and willingness. Section 16 of the 1963 Act stipulates the personal right to seek specific relief. The specific performance of the contract cannot be enforced in favour of the person mentioned therein. For the sake of convenience, I hereby extract the relevant portion of Section 16 (c) of the 1963 Act, viz.
Section 16. Personal Bars to Relief
…
…
who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract that are to be performed by him, other than terms of the performance of which have been prevented or waived by the defendant.
Explanation- for the purpose of clause (c)-
where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
the plaintiff must prove the performance of, or readiness and willingness to perform, the contract according to its true construction.
On perusal of the above mentioned provisions, it appears that a person who has failed to aver and prove that he has performed or has always been ready and willing to perform the essential terms and conditions of the contract that were to be performed by him except those terms and conditions that prevented him from performing.
Explanation: I make it clear that, where the contract involves the payment of money as a condition precedent, it is not essential for him to carry money all the time or to deposit the same in court to show his readiness and willingness, except when the court directs him to do so.
Explanation II further makes it clear that it is necessary for a party claiming specific performance to aver and prove that he has been all the time ready and willing to perform his part of the contract.
Besides, in the suit for specific performance, the court has to scrutinise, as contemplated under Order 8 Rule 10 of the Code of Civil Procedure of 1908, the facts set out in the complaint to find out whether all the requirements, in particular those indicated in Section 16 of the 1963 Act regarding readiness and willingness, have been complied with or not.
The doctrine of specific performance
In the context of the specific performance of a contract, readiness and willingness to perform are essential elements that must be demonstrated by both parties. While a party’s willingness to pay for the subject matter of the contract is an important factor, the mere expression of such willingness without actual funds to fulfil the obligation may not be sufficient to establish readiness and willingness under specific performance of a contract.
The doctrine of specific performance is an equitable remedy granted by courts to compel a party to fulfil its contractual obligations when monetary damages are deemed inadequate. For a court to order a specific performance, several conditions must be met, including the demonstration of readiness and willingness to perform by both parties.
Readiness and willingness to perform involve more than just a verbal expression of intent. It requires concrete actions and steps taken by the party seeking specific performance to fulfil their contractual obligations. This may include making arrangements for payment, obtaining necessary approvals or permits, and taking other preparatory measures to ensure that the contract can be performed as agreed.
In cases where a party expresses a willingness to pay but lacks the necessary funds to do so, courts will closely examine the circumstances to determine whether the party’s expression of willingness is genuine and supported by concrete actions. Mere promises or statements of intent, without tangible evidence of financial resources or a realistic plan to obtain the required funds, may not be sufficient to establish readiness and willingness.
Courts may consider factors such as the party’s financial history, creditworthiness, and any efforts made to secure financing or make alternative arrangements to fulfil the contractual obligations. If the court finds that the party lacks the financial means to perform the contract and has not taken reasonable steps to remedy the situation, it may conclude that the party is not genuinely ready and willing to perform.
Specific performance is a discretionary remedy, and courts have the authority to assess the conduct and intentions of the parties involved. If a party’s expression of willingness to pay is deemed insufficient or lacks tangible evidence of financial readiness, the court may decline to grant specific performance and may seek alternative remedies, such as awarding monetary damages or rescission of the contract.
What if the funds are not available
In light of the above mentioned explanation II of Section 16 of the 1963 Act, which makes it clear that the contract in question required payment of money as a condition precedent, it is not essential to carry money all the time or to deposit the same in court to show his readiness and willingness, except when the court directs so.
Facts of readiness and willingness can be gathered or ascertained by the conduct and attending circumstances of the case, like where the plaintiff neither had sufficient funds to pay the consideration amount nor was he acting promptly within the stipulated time, where time was the essence of the contract. In this case, the court held that he was neither ready nor willing to perform his part of the contract.
In one case, the purchaser clearly indicated his readiness and willingness to perform, but the court said that it was not necessary for him to show his possession of money to the court.
In Sukhbir Singh & Ors. vs. Brij Pal Singh & Ors. (1996) the Hon’ble Apex Court held that the law is no doubt and it is not a condition precedent that the respondent should have ready cash with them. The fact that they attended the sub-registrar office to have the sale deed executed and waited for the petitioner to attend the office of sub-registrar is a positive fact to prove that they had the necessary funds to pass on consideration and had with them the needed money for payment at the time of registration. It is not necessary that they always carry the money with them from the date of suit until the date of decree. The Hon’ble Supreme Court further observed that the respondent plaintiff may have been willing to perform his part of the contract; however, it appears that he was not ready with funds and was possibly trying to buy time to discharge his part of the contract.
Recent case laws
In one of the latest judgements rendered by the Hon’ble Supreme Court inP. Daivsingmani vs. S. Sambandan (2022), comprising justices Krishna Murari, Sanjiv Khanna and Bela M. Trivedi.
The plaintiff entered into an agreement to sell with the defendant pertaining to his piece of land for a total consideration of Rs. 650,000/ (consideration). The plaintiff under the agreement paid Rs. 50,000/- as earnest money. The aforesaid parties agreed to complete the sale transaction within a period of 6 months from the date of the agreement. However, the defendant did not comply with the enumerated terms and conditions of the agreement. Thus, the plaintiff had taken follow-up with the defendant in terms of the compliances of the agreement, such as sending a letter, a legal notice through his advocate, and publishing a public notice in the local daily newspaper and thereby cautioned the general public from entering into a transaction with suit property. However, the defendant did not turn up and comply with the agreement. Thus, the plaintiff filed suit against the defendant for specific performance of the agreement. The trial court partly decreed the suit and observed that the plaintiff had failed to prove his readiness and willingness to perform his part of the agreement as the plaintiff had not deposited the balance sale consideration of Rs. 600,000/- in the court at the time of filing the suit. The plaintiff also failed to prove that he had adequate financial strength to pay the sale consideration.
The plaintiff, being dissatisfied and aggrieved with the trial court’s order, preferred an appeal with the High Court. The Hon’ble High Court is pleased to hold that the findings of the trial court as to plaintiff had not proved his readiness and willingness to perform his part of the obligation contemplated under the agreement, which is a perverse finding and is not based on sound reasoning. The Hon’ble High Court held that plaintiff has complied with the requirements contemplated under Section 16 (C) of the 1963 Act by making a specific pleading as to his readiness and willingness.
The defendant impugned the Hon’ble High Court’s order in the Hon’ble Supreme Court. The Hon’ble Supreme Court held that the plaintiff had complied with Section 16 (C) of the 1963 Act and it was the defendant who had failed to perform as per the terms of the agreement, despite the plaintiff’s several letters and legal notice. The Hon’ble Supreme Court observed that the High Court had rightly held that the plaintiff had complied with the requirement of Section 16 (C) of the 1963 Act with regard to readiness and willingness.
Conclusion
In light of the above discussion and rulings of the Supreme Court, it appears that there can be no straight jacket formula about readiness and willingness. It depends on the overall conduct of the parties prior to and subsequent to the filing of the suit. The provisions in the agreement were that the balance was to be paid to the IT Department. The court held that the vendor could not insist that it should be paid to him and if he could not. The vendor could not, on that ground, say that the vendor was not ready and willing. Thus, it is crystal clear what is required most in the suit for specific performance of the contract. The plaintiff must aver or plead and prove his readiness and willingness from the inception until the filing of the suit. It is not necessary to carry cash and deposit it in court to show readiness and willingness. The most important aspect is the conduct of the plaintiff and the circumstances of the case.
Independence of contract refers to contractual sovereignty. The Contract Act provides independence to contracts or agreements between the competitive parties. The freedom to contract provides a framework of agreements between the parties and also ensures preventive measures to safeguard the parties in case of any breach of the agreement between the parties to contract. Contracts have been termed the core of contract law. Contractual freedom can refer to that independent stage where there will be no restrictions imposed by any party and the agreement that has been made will be impartial in any sort of negotiation.
Definition of contract
A contract is a form of agreement that is made between two parties who are competent to each other and is formed for a specific purpose. To fulfil that particular objective, such a contract came into existence as a sort of protection, providing protection to the parties who are entitled to form such a contract and also providing certain remedial features in case of breach of a contract. Therefore, the overall opinions as well as suggestions of the parties have been concluded in the contract with their mutual consent and as a result, parties are bound to follow such a contract.
Essentials of a valid contract
As an ordinary layman, a contract is something that is made between the two parties in a competition. The parties to a contract have to follow certain essential conditions, such as:
The parties to the contract must be competent.
The parties must have attained the age of majority, i.e., 18 years, as a minor is not allowed to enter into a contract with anyone.
The parties to a contract must be of sound mind; a person with an insane mind is not allowed to frame contracts.
The parties or any person is eligible to enter into any form of contract only when they have not been disqualified by law.
Contractual independence
The Contract Act provides freedom to form contracts without any interference and the contract is free from any undue influence. Freedom of contract refers to a contract or agreement that is free from any influence by another person or from any kind of bias, which sheds light on the essence of contractual freedom by conforming to the dignity of all the individuals and also maintaining liberty among the parties to the contract.
It is crucial to understand the technical meaning of the term contractual freedom, as it represents certain basic needs and requirements that need to be fulfilled to make the contract free from any kind of interference or negotiation. With the dynamic economy, it is an advantage for contract law to provide freedom to contracts, which enhances flexibility of relationship among the parties to agreement and also promotes innovation with efficient techniques to be followed that reflect the uniqueness of the agreement and make it free from any kind of partial and biassed outcomes
Contract implementation
It is one of the crucial concepts in contract law, as every hearing in the court and any kind of documentary between the parties involved in the formation of the contract and its enforcement leads to valuable outcomes. As the topic suggests, it is true to say that the Contract Act provides a predictable and enforced right to form contracts without any undue influence by any other person or to make the contract free from any negotiation that reflects its contractual freedom and forces any form of agreement or contract.
The contracts are formed to provide an overview of the requirements by putting terms and conditions that both parties need to follow, as contracts are the binding source among the parties and it is necessary to follow the obligations provided under any form of contractor agreement that has been signed by the mutual consent of the parties, by providing appropriate relief as necessarily required and by suggesting any further formalities if necessary to be pursued to carry forward any kind of operation for which a contract has been formed. The freedom of contract provides autonomy or symphony, to the parties to respect their integrity, provide them with useful insights into their opinions and preserve their dignity in performing such an agreement.
Merits of contract formation
There are certain merits that define contract formation as a useful and valuable insight, such as:
The formation of a contract first provides legal advantage and also ensures the overall protection of the parties to the contract by providing them with clear meanings and avoiding any kind of uncertainty between them.
The other merit is that the contract among the parties is legally binding between them and in case of any breach of that agreement, both parties have been put in default for such breach.
By signing contracts, the relationship between the parties develops in a better way and also promotes trust and cooperation.
Another important advantage that the contract depends on is identifying any kind of risk in advance and protecting the parties in advance from such kinds of uncertainties if they occur in the future.
The last but not least advantage of contract formation is providing clear and understandable obligations by mutually deciding by the parties and negotiating on terms that are suitable for all parties to contract.
Demerits of contract formation
Along with the merits, there are certain demerits to contract formation as well. As we have discussed the merits of the contract formation, there are some demerits as well, such as:
The first and foremost limitation of contract formation is the abuse of contract formation, which means providing vulnerable opinions or suggestions by the parties to form a contract that is illegal and disturbs the public domain.
The other disadvantage is the misrepresentation of a contract, which is void as per law and innocent parties have to face various challenges due to such frauds or errors that occurred while forming a contract.
Another factor related to the demerit of contract formation is the unpredictable and unforeseen challenges that every party to a contract may have to face but they cannot be fully corrected in advance before they happen. This means the allocation of risk factors that have been raised due to any circumstances.
Another disadvantage of contract formation is that it neglects the essentials of making a contract, which have been discussed above. A minor is not eligible to form a contract with any party; a person of insane mind is not allowed to enter into any form of contract or agreement; or a person who is not completed by law and has been qualified by law is not allowed to enter into any kind of contract or agreement with any other person.
Application of the contractual act
Freedom of contract is a wide concept spread over various sectors. In today’s scenario, the competition is very high and it ranges in difficulty level for every individual who wants to take part in any form of business or industry and wants to spread or grow in the competitive and fluctuating market. For the betterment of the market structure, the contractual free download is very essential to attaining the overall objectives and addressing any form of unpredictable circumstances that may arise in the market. With the introduction of the contract law, it seems like a sort of protection for the parties to the contract.
As any contract includes basic essentials to be fulfilled to make it a valid contract, it involves an offer or proposal that should be made by one party, and that proposal needs to be accepted by the other party, which is very crucial to be made in any contract to make it a valid one in the eyes of law. After proposal and acceptance, there must also be consideration, which makes a contract complete. Consideration is something in return that is being decided mutually by the parties to make it a valid contract. There are certain clauses under any contract that do not involve any permission but are free to be made and depict contractual freedom as well.
Principle of freedom of contract
The principle of freedom of contract is a fundamental principle of contract law that allows parties to enter into legally binding agreements on their own terms. This principle is based on the idea that individuals should be free to make their own choices and that the government should not interfere with private agreements.
The principle of freedom of contract has several important implications. First, it means that parties are free to choose the terms of their contracts. This includes the type of contract, the subject matter of the contract, the price, and the method of payment. Second, it means that parties are free to negotiate the terms of their contracts. This process of negotiation allows the parties to reach an agreement that is mutually beneficial. Third, it means that parties are free to enforce their contracts. This means that if one party breaches a contract, the other party can take legal action to enforce the contract and obtain a remedy for the breach.
The principle of freedom of contract is not absolute, however. There are certain limits on the parties’ ability to enter into contracts. For example, parties cannot enter into contracts that are illegal, immoral, or against public policy. Additionally, parties cannot enter into contracts that are unconscionable. An unconscionable contract is one that is so one-sided that it is unfair to one of the parties.
The principle of freedom of contract is an important part of the American legal system. It allows individuals to make their own choices and to enter into binding agreements with others. This principle is essential to a free and prosperous society.
Here are some examples of the principle of freedom of contract in action:
A buyer and seller agree on the price of a car. The buyer then pays the seller the agreed-upon price and takes possession of the car.
A landlord and tenant agree on the terms of a lease. The tenant then pays the landlord the agreed-upon rent and takes possession of the apartment.
An employer and employee agree on the terms of an employment contract. The employee then works for the employer and is paid the agreed-upon wage.
These are just a few examples of how the principle of freedom of contract works in practice. This principle is essential to a free and prosperous society.
Public order as a limitation of the freedom of contract
Public order is a fundamental concept in law that refers to the unwritten principles of justice, morality, and social order that are essential for the well-being of society. It is a limitation on the freedom of contract in that it prohibits the enforcement of contracts that are contrary to public order.
There are a number of public policy considerations that can be used to justify the limitation of freedom of contract. These include:
The protection of vulnerable people. Public order laws protect vulnerable people from being taken advantage of by unscrupulous parties. For example, laws against usury protect borrowers from being charged excessive interest rates.
The preservation of social order. Public order laws help to maintain social order by prohibiting activities that are considered to be harmful to society. For example, laws against prostitution and drug use help to protect communities from the negative effects of these activities.
The promotion of economic development. Public order laws can promote economic development by creating a stable and predictable legal environment for businesses. For example, laws that protect intellectual property rights encourage innovation and investment.
The limitation of the freedom of contract is a necessary evil. It is essential for the protection of vulnerable people, the preservation of social order, and the promotion of economic development. However, it is important to strike a balance between the need for public order and the freedom of individuals to enter into contracts.
Here are some examples of contracts that have been held to be void as contrary to public order:
Contracts that are illegal. Contracts that are illegal are void from the beginning. For example, a contract to sell illegal drugs is void.
Contracts that are immoral. Contracts that are immoral are void from the beginning. For example, a contract to commit adultery is void.
Contracts that are against public policy. Contracts that are against public policy are void from the beginning. For example, a contract to restrain trade is void.
The limitation of freedom of contract is a complex and evolving area of law. It is important to seek legal advice if you are considering entering into a contract that may be contrary to public order.
Morality as a limitation of the freedom of contract
Freedom of contract is a fundamental principle of common law that allows parties to enter into legally binding agreements. However, this freedom is not absolute and can be limited by a variety of factors, including morality.
Morality can be defined as the set of principles that govern right and wrong behaviour. These principles can be derived from a variety of sources, such as religion, philosophy, or personal experience. When a contract is found to be immoral, it may be void or unenforceable.
There are a number of reasons why morality can be seen as a limitation on the freedom of contract. First, morality can be used to protect the vulnerable from exploitation. For example, a contract that involves the sale of a child would be considered immoral and void. Second, morality can be used to promote social order. For example, a contract that involves the commission of a crime would be considered immoral and unenforceable.
The tension between freedom of contract and morality has been a subject of debate for centuries. Some argue that the freedom of contract should be absolute and that morality should not be a factor in determining the validity of a contract. Others argue that morality is a necessary limitation on the freedom of contract and that it is important to protect the vulnerable and promote social order.
Ultimately, the question of whether morality should be a limitation on the freedom of contract is a complex one that does not have an easy answer. There are strong arguments on both sides of the issue. However, it is important to remember that the freedom of contract is not absolute and that there are a number of factors that can limit this freedom, including morality.
Here are some additional examples of how morality can limit the freedom of contract:
A contract that involves the sale of human organs would be considered immoral and void.
A contract that involves the commission of a hate crime would be considered immoral and unenforceable.
A contract that involves the exploitation of workers would be considered immoral and void.
These are just a few examples of the many ways in which morality can limit the freedom of contract. It is important to note that the law is constantly evolving and that the interpretation of what is considered to be immoral can change over time. As a result, it is important to consult with an attorney if you have any questions about the legality of a particular contract.
Landmark case law
There are certain case laws that give limelight to the concept of contractual independence by permitting the parties to a contract to act accordingly according to their own terms and conditions defined by their mutual consent. Certain case laws are as follows:
M/s. Alopi Parshad & Sons Ltd. vs. Union of India (1960)
In the landmark case of M/s. Alopi Parshad & Sons Ltd. vs. Union of India (1960), the Supreme Court of India upheld the contractual independence of government contracts. This judgment has had a profound impact on the legal framework governing government contracts in India.
The case involved a dispute between a private company, M/s. Alopi Parshad & Sons Ltd., and the Union of India over the termination of a contract for the supply of coal. The company had entered into a contract with the government to supply coal for a period of five years. However, the government terminated the contract prematurely, citing unsatisfactory performance by the company.
The company challenged the termination of the contract, arguing that it was arbitrary and violated the principles of natural justice. The Supreme Court, however, upheld the government’s decision, holding that the government had the right to terminate the contract for breach of its terms.
The court’s decision in this case has been widely cited as a precedent for the principle of contractual independence of government contracts. This principle recognizes that government contracts are governed by the same laws of contract as private contracts. However, there are some important differences between government contracts and private contracts.
One of the key differences is that government contracts are often subject to public law considerations, such as the need to ensure transparency and accountability. This means that government contracts may be subject to additional scrutiny and regulation than private contracts.
Another difference is that government contracts are often awarded through a competitive bidding process. This process is designed to ensure that the government obtains the best possible value for its money. However, the competitive bidding process can also be complex and time-consuming.
The principle of contractual independence of government contracts is an important one. It ensures that the government has the flexibility to enter into contracts that are in the best interests of the public. However, it is also important to ensure that government contracts are subject to appropriate scrutiny and regulation.
M/S. Gujarat Bottling Co. Ltd. & Others vs. Coca Cola Company & Others (1995)
Under this landmark judgement, the Supreme Court of India provides freedom to contract by mutually agreeing on the terms and conditions as required by their company to grow and expand in the market.
Satyabrata Ghose vs. Mugneeram Bangur & Co. (1954)
The Supreme Court of India passed a judgement related to the formation of a contract to be freely formatted by the parties to the contract by deciding their own opinions without any undue influence by any other person.
Conclusion
The freedom of contracts or contractual freedom, provides a fair deal between the parties who make a contract for any purpose, which should be free from any restrictions or bias and formed without any limitation. The contracts are formed to shape the legal relationship among the contracting parties by respecting their opinions and making a negotiated agreement which promotes contractual freedom. Therefore, the formation of contracts based upon certain factors, such as mutual understanding, trustworthiness, capability of performing the operations, and stability of work, all together contributes towards a fair legal operation being done among the parties of different sectors of the world.
This article is written by Harshita Agrawal. The article delves into the judgement of the case, examining the legal principles involved in the grounds of marriage annulment based on impotence, invincible repugnance to sexual acts, and the inability to consummate marriage. It not only signifies the procedures and nuances followed by the notional arguments and the relevant decisions of the court based on similar case laws, but also sheds light on shaping the future perspectives of annulment.
Table of Contents
Introduction
As per Hindu law, marriage is considered a sacred bond that not only unites two people but also brings together their families. Traditionally, a marriage is taken as a union that not only exists in the eyes of the existing world but also continues beyond. It is an institution through which two people commit to each other and work together for mutual well-being, leading to the raising of families and the formation of inseparable attachments. Until 1955, divorce was completely unknown in Hindu marriages. With evolution, the Hindu Marriage Act, 1955, was revised and included the provisions of divorce, which ultimately led it to be accepted in society. Wherever the concept of marriage exists, the idea of divorce is also there. However, married life sometimes faces problems, and one such problem, “impotence,” was at the centre of the case of Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari (1969). Impotence is the inability to engage in any kind of sexual intercourse, as it is considered one of the fundamental aspects of any marriage. It is a crucial issue in every relationship that can impact the well-being, legal status, and social dynamics of the marriage. The case law did not just affect the people involved; it also changed Hindu personal law insignificantly. It means that while decisions are immediately in effect, the case here also sets an example that would be influenced in the future by similar case laws.
Details of the case
Name of the case:Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari
Background of Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari
As we dig down further into the complexities of Hindu marriage law, especially on an intricate issue like impotency, we will understand the legal interpretations and principles that evolved over the period of time leading to the landmark judgement of Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari (1969). For a better understanding of the Supreme Court decision in this case, it is essential to understand the legal context that existed before.
Before this judgement, there was confusion as to when a marriage could be annulled because of impotence since different courts had different opinions. In the case of Shakuntala Devi vs. Shiv Kumar (1960), things changed differently when the Allahabad High Court stated that impotency not only has physical aspects but also emotional aspects that prevent people from having consummation. But it was still not clear when impotency could be considered a ground for marriage annulment.
Under Section 12(1)(a) of the Hindu Marriage Act, 1955, impotence was introduced through the amendment, and it refers to the inability to consummate a marriage through normal, natural, and complete sexual intercourse. Impotence can be categorised into two parts:
Physical impotence: It occurs when a person cannot consummate their marriage due to physical or anatomical issues like a small vagina or abnormally large male organs.
Mental impotence: It happens when a person has a psychological or emotional aversion to sexual activity, which prevents them from consummating their marriage. It mainly happens due to mental, emotional, or psychological changes.
There is no such standard of proof required in cases of impotence, as it can be conducted through a medical examination or by the parties after marriage. It cannot be concluded that when a person disagrees with having sexual intercourse, he would be impotent. However, a certain consistency in refusal of intercourse and avoidance of medical examination can lead to the inference of impotency.
In the landmark judgement of Urmila Devi vs. Narinder Singh (2006), the wife filed an appeal against the judgement of the District Judge of Shimla, who had granted the petition for marriage annulment to her husband. The case was further brought before the High Court of Himachal Pradesh, and the court concluded that the marriage had not been consummated because of the wife’s attitude towards sex, which was cold and unresponsive, indicating psychological impotence, and was clearly shown by the husband, resulting in the revocation of the wife’s appeal.
Facts of Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari
On April 20, 1955, the appellant married the respondent as per Hindu rituals. After the wedding, they lived together for about three years in different locations, including Delhi, Alwar, Bombay, and Europe. As per the appellant, they never consummate their marriage. On March 15, 1960, the appellant filed an application under Section 12 of the Hindu Marriage Act, 1955, before the District Judge in Delhi, praying to annul the marriage between him and his wife, granting a decree of annulment. The appellant filed the application on the ground that the respondent was impotent, and the respondent, in turn, alleged that it was the appellant who was impotent. The appellant claimed that since his marriage, he had tried many times to consummate it, but the respondent always refused. The respondent denied any such claims and said she was always ready to consummate the marriage. She stated that the appellant was physically and emotionally incapable of doing so. They had lived together for years and shared the same bed in the same room. After the arguments and allegations exchanged between the parties, both the appellant and the respondent had undergone medical examinations, and their oral evidence and reports were on record.
Issues raised
Whether the respondent was impotent at the time of the marriage and has continued to be so up to the filing of this petition?
Is the petitioner impotent and, therefore, unable to engage in normal sexual relations with the respondent? If so, what are the implications?
Arguments of the parties
Petitioners
The petitioner claimed that since his marriage, he had repeatedly tried to consummate his marriage but was unable to do so due to the respondent’s strong and persistent repugnance to sexual intercourse, resulting in the marriage remaining unconsummated.
He also stated that the respondent (his wife) was impotent at the time of their marriage and continued to be so, which led him to file the petition.
The petitioner argued that the respondent’s impotency was the sole reason for the non-consumption of the marriage.
Respondent
In her statement, the respondent (wife) opposed the petitioner’s (husband) application on various grounds.
She clearly denied showing any aversion to consummating the marriage.
She stated that she had lived with him for over three years and also accompanied him on multiple trips to England and the continent, and during that time, she was all willing and ready to consummate their marriage.
In her statement, she clarified that the consummation never happened because of her husband’s impotence, as he had a physical disability, and he never tried.
She rejected any claims of impotency, either at the time of marriage or at the start of legal proceedings.
She restated that the petitioner was physically and emotionally incapable of consummating and falsely accused her of impotency.
She accused her husband of not performing normal sexual functions because he was physically and sexually impotent.
She argued that despite living together for several years and sharing the same bed, the petitioner never showed any interest through his actions and behaviour in consummating their marriage.
Relevant provisions
Section 12(1)(a) of the Hindu Marriage Act, 1955
According to Section 12(1)(a) of the Act, any marriage solemnised, whether before or after the commencement of the Act, shall be voidable and may be annulled by a decree of annuity in any way on the ground that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding.
Grounds of impotence
A party is considered impotent if their mental or physical condition makes consummation of the marriage practically impossible. As per the statute, this condition must have existed at the time of the marriage and continued to be so until the institution of the legal proceedings. To obtain a decree of nullity, the appellant must prove that his wife, the respondent, was impotent both at the time of the marriage and throughout the period leading up to the filing of the petition.
Invincible repugnance to the sexual act
Invincible repugnance refers to the unwavering and unconquerable reluctance towards sexual intimacy. When one spouse consistently refuses to engage in any kind of sexual relationship due to this repugnance, it may be deemed as a form of impotency. The authenticity and persistence of this repugnance are examined by the court.
Judgement by the District Judge
After reviewing the evidence on the record presented, the District Judge held that the appellant had failed to prove that the respondent was impotent at any point in time. Therefore, the first decision was against the appellant on the first issue. He also concluded that on the second issue, as per the facts, it was the appellant who, due to either physical or psychological causes, was unable to consummate the marriage with the respondent. Therefore, the petition filed by the appellant was dismissed.
Judgement by the Punjab High Court
On the appellant’s appeal, the judges of the Punjab High Court Bench disagreed with the trial court’s finding in the second issue. However, it was held that there was no proof of the appellant’s impotency. At the same time, regarding the respondent’s (wife’s) impotence and emotionally incapable of consummating, the judges believed that various factors and circumstances cast doubt on the appellant’s allegations. The High Court also held that, if it believed the state of the evidence, the appellant had failed to prove that the non-consumption of marriage was because of the wife’s impotency. The court also doubted whether the respondent had been proven to be impotent based on evidence or whether the respondent consistently exhibited repulsion towards sexual activity. It is unnecessary to dig further into the evidence on the basis of which concurrent findings have been recorded by the District Judge and the High Court, rejecting the appellant’s statement that his wife was impotent at the time of marriage and continued to be so until the initiation of the proceedings.
As far as the accusation of ‘invincible repugnance to the sexual act’ is concerned against the respondent, the High Court found that the allegation had not been proved, and they also suggested that a lack of proper approach by the appellant to consummate the marriage might have been responsible for non-consummation. The High Court also doubted the appellant’s claim of making attempts on several occasions to consummate the marriage.
Judgement in Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari
The Supreme Court held that it is unjust to bind two people in a miserable marriage for the rest of their lives. The scenario in this case is entirely different, as neither of the courts has determined that the marriage cannot be consummated in the future. The court also did not accept the appellant’s plea, and the respondent had always resisted his attempts to consummate the marriage. After the clarification of the records presented before the Hon’ble Court, it has been established that the appellant failed to prove the respondent’s impotency at the time of marriage and thereafter. As a result, the appellant’s application under Section 12(1)(a) must be dismissed due to the failure of the appeal. There was no cost awarded.
Rationale behind this judgement
The legal representative of the petitioner had failed to convince the Hon’ble Court that the findings recorded by the two courts in this matter were incorrect or lacked evidence. There was a feeble attempt made by the petitioner to argue that the respondent’s claim of always being willing to consummate the marriage should not be believed. When both courts have accepted her evidence, it is pointless for the appellant to raise this argument.
The decision of the court in the judgement of Earnest John White vs. Kathleen Olive White (1958) was looked upon by the petitioner where it was laid down, though it is not usual for this Court to interfere on a question of fact. Nevertheless, if the lower courts overlook or misinterpret crucial evidence, such a finding is liable to be interfered with by this court. In view of the findings presented before the court, it was concluded that both the appellant and the respondent were not impotent and had no admission of consummation. The petitioner argued that the absence of consummation was due to the respondent’s invincible repugnance. The counsel further argued that, considering the practical impossibility of consummation, the applicant’s application should be granted.
The decision in G. v. G. (1968) was also referred to, where it was clearly held that a court could annul a marriage if it were found that the marriage had not been consummated by the parties, even if no clear reason for the non-consummation was apparent. In this case, both the husband and the wife were perfectly normal, yet each accused the other of being responsible for the lack of consummation.
Analysis of Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari
The Supreme Court’s ruling in the landmark judgement of Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari (1969) highlights a significant moment regarding the annulment procedure based on impotency in Hindu law. The case not only showed the complexities but also focused on the individual rights of society.
The previous interpretations of impotence were restrictive, leading to the couple being stuck in unhappy marriages and lacking intimacy before the decision came. The case law not only recognised the temporary impotence at the time of marriage as a valid ground for annulment but also acknowledged the importance of both physical and psychological aspects of marriage intimacy.
After all the evidence was carefully evaluated and the medical reports were submitted along with psychological evaluations and personal testimonies, the court concluded a fair judgement considering all counter-arguments while adapting to new societal views and the reasoning of the case, declaring that one size does not fit all.
The impact not only remained in the single case but also set a clear precedent for further annulment cases, focused mainly on individuals. The judgement opens the door to alternative viewpoints along with legal interpretations and also helps in realising the limitations and challenges faced in potential abuse. This case is not the end of the story but rather the beginning of a new chapter where the law recognises legal complexities and respects every individual’s right to fulfilling unions. In spite of all these hurdles, the case of Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari (1969) marks an important legal advancement, reflecting the judge’s decision to create a more equitable framework for annulment under Hindu law.
Conclusion
The court held that regardless of who was at fault and without digging into any further questions, it was evident that the marriage had not been consummated and could not be consummated in the future. Therefore, the court annulled the marriage, concluding that “quoad hunc et quoad hunc, these people cannot consummate the marriage. The judgement is not the final word but is also an essential step towards the future. It respects the dignity of marriage while prioritising the individual’s right to a fulfilling union. The case law of Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari (1969) not only illuminates the law, similar to society, but also puts an immense focus on evolving or incorporating justice, understanding, and individual happiness.
Frequently Asked Questions (FAQs)
What is a proper or valid Hindu marriage, as per Hindu law?
In India, there are various customs and traditions across various communities. As per law, a marriage can be conducted or solemnised in accordance with the customary practices of the community to which either the bride or the groom belongs. It is crucial to note that these rituals and practices carried out must be acknowledged and accepted by the respective community as appropriate for formalising a marriage.
For example, in a Hindu marriage, the inclusion of saptapadi, the ritual of circling the sacred fire seven times, signifies the completion of the ceremony, and the marriage will be bound upon the completion of the seventh round.
What are the grounds on which a marriage may be annulled by a decree of nullity?
A marriage may be annulled by a decree of nullity on the following grounds:
Impotence of the respondent.
The lack of ability of respondents to provide valid consent to marriage due to mental incapacity.
The respondent was suffering from a mental disorder of a nature or degree that rendered them unsuitable for marriage.
The respondent was subjected to repeated attacks of insanity.
The petitioner’s consent was obtained through coercion.
At the time of marriage, the respondent was pregnant with someone other than the petitioner.
What are the grounds on which divorce can be obtained under the Hindu Marriage Act, 1955?
Divorce can be filed after one year of marriage. However, in cases of exceptional hardships or misconduct by a person, a petition may be permitted before the completion of one year.
A marriage may be dissolved through a divorce decree on the following grounds:
Engaged in voluntary sexual relations with someone other than their spouse after the marriage
Cruelty
Desertion
Ceased to adhere to Hinduism
Incurably, an unsound mind
Leprosy
Venereal disease
Renounced the worldly life by joining a religious order
Unaccounted for or presumed dead for a period of seven years or more
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This article is written by Ambar Chaurasia. This article discusses in detail the background of Chand Patel v. Bismillah Begum & Anr. and the principle of unlawful conjunction under Muslim personal law, the facts of the case, issues raised, arguments of the parties, the laws involved, while discussing the judgement and doing an analysis of the case.
Table of Contents
Introduction
India, being a secular country, has a system of personal laws that are specific to different religious communities and include autonomy in matters such as marriage, divorce, inheritance, adoption and guardianship. The personal laws of different religions are based on their respective religious beliefs and practices. One such dimension of personal laws in India is Muslim personal law, which lays down the legal framework that governs personal and family matters for Muslims according to Islamic law or Sharia. Muslim personal law in India has historical roots dating back to the medieval period and the Mugal era thereafter. Muslim law in India is primarily based on the Hanafi school of Islamic Jurisprudence, which derives its principles from the Holy Quran and Hadith, i.e., the sayings and practices of the Prophet Muhammad and interpretations by Islamic scholars.
A misconception about Muslim law, often held by those unfamiliar with its nuances, is that men are allowed to marry up to four marriages (Nikah); however, this is just a fragment of the whole story. While it is true that Islamic law permits a man to have up to four wives, this allowance is not a blanket licence and comes with stringent conditions.
It can be said that such an allowance is rather a complex and conditional provision that demands exceptional moral integrity and responsibility from the individual.
One such condition is that a Muslim cannot marry another Muslim if he/she comes under a prohibited degree of relationship, i.e., marriage between individuals who are closely related by blood or by other relationships such as affinity (through marriage) or fosterage (through breastfeeding) or are related by consanguinity (blood relationship), such as father and daughter, mother and son, siblings or other close relatives like uncle and niece, aunt and nephew.
However, if a marriage takes place within a prohibited degree of relationship, will it be regarded as void ab initio, i.e., void since its inception or will it be regarded as an irregular marriage, as both of them have different legal consequences.
In this case, Chand Patel v. Bismillah Begum & Anr. (2008), the Hon’ble Supreme Court has discussed these issues and reinforced the legal interpretation that divorced Muslim women can seek maintenance under both the Muslim Women (Protection of Rights on Divorce) Act, 1986, and Section 125 of the Code of Criminal Procedure. The case revolved around whether a divorced Muslim woman could claim maintenance under Section 125 of the Code of Criminal Procedure (CrPC) after the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The appellant, Chand Patel, contended that this Act exclusively governed such matters, thereby excluding Section 125 CrPC.
However, the Supreme Court upheld Bismillah Begum’s right to maintenance under Section 125 CrPC, emphasising that the Muslim Women (Protection of Rights on Divorce) Act, 1986, did not override the general provisions of CrPC and aimed to ensure broader protection for divorced Muslim women. This judgement reinforced the principles of social justice and gender equality, significantly enhancing the legal rights and financial security of Muslim women in India.
Details of the case
Case name: Chand Patel v. Bismillah Begum & Anr.
Case no.: Appeal (crl.) 488 of 2008
Case type: Criminal appeal
Name of the court: Supreme Court
Name of the parties:
Petitioner: Chand Patel
Respondent: Bismillah Begum and Anr
Citation: (2008), 4 SCC 774
Date of judgement: 14.03.2008
Bench: Hon’ble Mr. Justice Altamas Kabir and J.M. Panchal, J.
Laws involved in the case: Section 125 CrPC, Principles of Muslim Personal law
Unlawful conjunction (jama bain-al-mahramain)
Under Muslim personal law, unlawful conjunctions refer to certain family relationships that are prohibited from marrying each other due to being too closely related by blood (consanguinity), affinity (through marriage), or fosterage (through breastfeeding). The restrictions on marriage based on these relationships are derived from traditional Islamic jurisprudence, which outlines the relationships that are considered impermissible for marriage. Muslim personal law constitutes various unlawful conjunctions like marrying someone who is already married, marrying a woman during her iddah period, marrying a non-Muslim without conversion, forced marriage or marrying without consent, marriage during Hajj and one of such conjunctions is marrying within prohibited degrees of kinship/relationship. However, such restrictions are not as simple as they seem; a Muslim man cannot only marry within the prohibited degree of relationship, i.e., to whom he is related closely but he is also restricted from marrying those females who are also within the prohibited degree of relationship of his wife. To better understand it, let us take an example.
Illustration: X, a Muslim man, is married to Y, a Muslim woman and while their marriage is subsisting, he gets married to Z. Now here, legal fiction will be created, Y will be deemed to be a Muslim man and relations between Y and Z will be construed. If Y and Z fall within the prohibited degree of relationship, then it will be deemed that X and Z will also fall under the prohibited degree, and such marriage would not be permissible between X and Z.
Void and irregular marriages under Muslim personal law
Muslim law differentiates between void and irregular marriages. A void marriage is one that is void from its very inception (batil), while an irregular (fasid) marriage is one that is capable of becoming a valid marriage if the irregularity is removed. The distinction has been categorically dealt with in Mulla’s “Principles of Mohammedan Law” in paragraphs 260 to 264. Paragraphs 260-262 deal with the complete prohibition of marriage and any marriage constituted in violation of such provision will be rendered void, while paragraph 263 deals with unlawful conjunction and states that “A man may not have at the same time two wives who are so related to each other by consanguinity, affinity and fosterage that if either of them had been a male, they could not lawfully intermarried, as, for instance, two sisters or an aunt and niece. The bar of unlawful conjunction renders a marriage irregular, not void.”
Facts of Chand Patel v. Bismillah Begum & Anr.
This case involved the maintenance rights of one Bismillah Begum and her minor daughter Taheman Bano, born out of wedlock, as respondents nos. 1 and 2, respectively. Bismillah Begum filed an application under Section 125 of the Code of Criminal Procedure against the appellant, Chand Patel, in the court of the judicial magistrate, first class, Chincholi.
In the petition for maintenance under Section 125 of CrPC, the petitioner claimed the following things:
She was the legally wedded wife of the appellant for the past 8 years and a Nikahnam was also executed, but the same has been misplaced by her and she categorically admitted that the appellant was already married to her elder sister, Mashaq Bee, and the appellant, with the consent of her first wife, married respondent no.1 and all three of them have been living under the same roof since then.
With the passage of time, things started deteriorating between them, and the respondent filed a petition for maintenance allowance of Rs. 1000 per month for herself and Rs. 1000 for her minor daughter. The Defendant (appellant herein) denied that he had married Respondent No. 1. His defence was rejected by the trial court and the trial court held that Respondent No. 1 is the legally wedded wife of the appellant. The court also found that the appellant had neglected to maintain both respondents and directed the appellant to pay a monthly sum of Rs. 1000 to Respondent No. 1 in lieu of her life support maintenance and Rs. 1000 to Respondent No. 2 till she attained adulthood.
The aforesaid order was challenged by way of a revision petition in the court of district and session judge Gulbarg. The revisional court dismissed the revision petition and upheld the trial court’s decision while stating that the personal law of the parties cannot take away or abridge the right of a Muslim woman to claim maintenance under Section 125 of the CrPC while relying upon the judgement of Lnanak Chand v. Chandra Kishore Aggarwal (1969). In which it was made clear that Section 488 of the old Code (The Code of Criminal Procedure, 1898), which is similar to Section 125 CrPC, is a religion neutral provision and that it applies to all religions irrespective of what is stated in their personal laws.
The revisional court also opined that the magistrate, while deciding an application under Section 125 CrPC, cannot go into the validity of the marriage and the petitioner (Chand Patel) is under an obligation to maintain his wife and his daughter till their marriage is declared null and void by a court of competent jurisdiction. The applicant further filed an application under Section 482 of the CrPC before the Karnataka High Court and after considering the orders of both the trial court and the revisional Court, the Court dismissed the application by stating that it has no merits. Hence, this petition was filed before the Hon’ble Supreme Court.
Issues raised
Whether a marriage solemnised between a Muslim man and his wife’s sister, while the earlier marriage is still subsisting, is legal, irregular or void ?
Whether Section 125 CrPC is applicable to Muslims?
Arguments of the parties
Appellant
The appellant, Chand Patel, raised several contentions similar to those raised before trial in the revisional and Karnataka High Courts. The following are the major contentions raised by the appellant.
Firstly, it was urged that under Muslim personal law, “unlawful conjunction” is specifically prohibited and a Muslim man cannot marry his wife’s sister in his wife’s lifetime. In this case, since the initial stage, the appellant has denied the marriage between him and his wife’s younger sister and the appellant is also disputing the paternity of Respondent No. 2.
The appellant also submitted that an unlawful conjunction is prohibited under Islam; hence, a marriage between such persons falling into an unlawful conjunction is void under Islam, and since it has been void since its inception, no rights can be conferred upon both respondents.
In the aforementioned case, the first marriage of the wife was not dissolved by a competent court but a Chhor Chithhi (document for dissolution of marriage) was executed between the wife and her first husband as per the customs of the Maheshwari community and it was also registered.
Further, the lady married again and a daughter was born out of her second marriage. Differences arose between the couple and the lady filed for judicial separation and a maintenance of Rs. 3000 per month, while the second husband contended that his marriage was null and void by filing a counter-petition on the ground that his wife’s earlier marriage had not been dissolved in accordance with the law.
Secondly, the appellant contended that the legislature, while drafting Section 125 CrPC, intended to include a woman not lawfully married and that the scope and ambit of Section 125 cannot be enlarged by including an unlawfully married woman in the expression “WIFE,” and the appellant placed his reliance on Savitaben Somabhai Bhatiya v. State of Gujurat (2005).
The appellant, on the basis of his above contentions, submitted that the decision of trial, revisional and the High Court’s erroneous marriage should be declared void and hence the respondents have no right to claim maintenance.
Respondents
Respondents, while supporting the decision of the High Court categorically, stated that while deciding an application under Section 125 CrPC, there is no need for the Courts to delve into the validity of a marriage and the Court can pass an order for maintenance in favour of the wife. If a prima facie case is made out, i.e., if the marriage looks valid from the outset, the Court need not adjudicate upon the validity of such a marriage.
Respondents also contended that the fact that the parties are prohibited from marrying under unlawful conjunction as per the principles of Islam was known to both parties and the appellant, despite knowing the whole scenario, married his wife’s younger sister and is now trying to evade his responsibility to maintain the respondents by taking recourse to technicality. A marriage that is not yet declared void by a court of competency cannot be held void and such marriage and the rights arising out of such marriage shall subsist.
Judgement in Chand Patel v. Bismillah Begum and Anr. (2008)
Before the verdict of the Supreme Court, the following were the verdicts of the earlier Courts
Trial Court’s verdict
The Trial Court came to the finding that the appellant had neglected the respondents and had failed to maintain them despite being obliged to do the same. On the face of the suit, the Appellant and Respondent No. 1 are married and Respondent No. 2 is his daughter. The Trial Court also directed the appellant to pay a sum of Rs 1000 each to both Respondents.
Revisional Court’s verdict
The Revisional Court dismissed the revision petition and upheld the trial court’s decision while stating that the personal law of the parties cannot take away or abridge the right of a Muslim woman to claim maintenance under Section 125 of the CrPC, relying upon the judgement of Lnanak Chand v. Chandra Kishore Aggarwal.
In which it was made clear that Section 125 CrPC is a religion neutral provision and that it applies to all religions irrespective of what is stated in their personal laws. The Revisional Court further noted that the magistrate cannot consider the validity of the marriage when making a decision on an application under Section 125 CrPC.
Accordingly, the petitioner, Chand Patel, is required to provide for his wife and daughter until a court of competent jurisdiction declares their marriage to be void.
High Court’s verdict
The Hon’ble High Court agreed with the decision of the Revisional and Trial Court, dismissed the petition filed by appellant and held that Chand Patel was liable to maintain both respondents.
The Hon’ble Supreme Court rendered its verdict in the following manner
The Supreme Court stated that the answer to the question, whether the respondents herein are entitled to maintenance or not, will solely depend on the status of marriage, i.e., whether the marriage between the appellant and respondent no. 1 is void or irregular, as in both cases legal consequences will be different, as in cases of void marriage, respondent no. 1 will not be entitled to get maintenance, while in cases of an irregular marriage, a marriage subsists until rendered void by a court of competence, hence respondents will be entitled to get maintenance under Section 125 CrPC.
The Court opined that under Muslim personal law, there has been a clear distinction laid down in respect of void and irregular marriages. As per Mulla’s Principle of Mohammedan Law, it has been clearly laid down that a marriage that falls under unlawful conjunction is an irregular marriage and not a void one, which has been stated in Para 263 of Mulla’s Principle of Mohammedan Law. The Court further discussed the previous judicial views on this issue, as it has been considered by various High Courts from time to time.
The very first time this principle was considered by a Court of Law was in the Calcutta High Court way back in 1895, when the Calcutta High Court held in Karimunnissa Khatooon v. Aizunnissa Khatoon (1895), in which it was held that a marriage between a Muslim man and his wife’s sister while the first marriage is still subsisting will be considered void from its very beginning. However, in 1917, Bombay High Court, in Tajbi v. Mowla Khan (1917), while mostly relying upon Fatawa-i-Alamgiri, a book written by Aurangzeb on Islamic law, held a marriage between a Muslim man and his wife’s sister to be irregular and not void. The court reasoned that a marriage that is able to become valid by a subsequent event, such as the death of the first wife or the pronouncing of talaq by the husband, cannot be rendered void and hence declined to accept the law laid down in the earlier judgement of the Calcutta High Court.
The Bombay High Court also referred to a book written by Baillie, A Digest on Moohummudan Law, in which the distinction between a void and irregular marriage and the consequences of such marriage are clearly discussed. Not only Bombay High Court but various other High Courts considered the decision of Calcutta High Court erroneous, such as in 1926 Oudh Chief Court in Kaniza v. Hasan Ahmad Khan (1926), Lahore High Court in Talimand v. Muhammad Din (1930) and in 1937 Madras High Court in Rahiman Bibi Saheba, By Agent Syed Yusuf v. Mahboob Bibi Saheba And Ors. (1937).
The Hon’ble Supreme Court held that a marriage that is temporarily prohibited but has the potential to become valid once the prohibition is lifted is not void but irregular; as a result, it will continue to exist until it is declared void by a competent court, and the wife and children of such a marriage will be entitled to maintenance under Section 125 CrPC. The Court took into consideration the opinions of these High Courts and agreed with their reasoning.
The Supreme Court decided not to interfere with the orders passed by the Karnataka High Court and dismissed the appeal. And also, in addition, directed the appellant to pay Rs 10,000 as a cost of litigation.
Rationale behind this judgement
The rationale behind this judgement revolves around balancing the principles of Muslim law with secular provisions of the CrPC in order to protect vulnerable classes in matters of marriage and maintenance and it involves several legal principles and considerations.
Nature of marriage in Muslim Law : The Supreme Court recognised the distinct classification of marriages in Muslim law into valid (sahih), void (batil), and irregular (fasid). The status of the marriage directly affects the rights and obligations of the parties involved, including the provision of maintenance.
Determining the validity of marriage : The Court emphasised the importance of assessing whether the marriage was valid, void, or irregular according to Muslim law. The legal effect in each case will vary and this determination will influence the application of maintenance provisions under Section 125 CrPC.
Application of Section 125 CrPC : It has been held at various instances by the Hon’ble Supreme Court that Section 125 CrPC is a secular law aimed at providing maintenance to dependents such as wives, children, and parents, and the same was held in this case.
Entitlement to maintenance: The Court’s rationale focused on whether the woman in question could be considered a “wife” under Section 125 CrPC. If the marriage was found to be void, she would not be considered a wife and thus not entitled to maintenance under the provisions of Section 125 CrPC. On the other hand, if the marriage was irregular but not yet dissolved, she might still be entitled to maintenance.
Protection of vulnerable parties: The Supreme Court aimed to provide protection to vulnerable parties, such as wives and children, by ensuring that maintenance provisions are applied equitably and fairly. This aligns with the broader purpose of Section 125 CrPC, which seeks to prevent destitution.
Harmonising personal law with secular law: The Court aimed to harmonise the principles of Muslim personal law with the secular legal framework provided by the CrPC. This approach ensures that individuals receive fair and just treatment, regardless of the religious context of their marriage.
Precedents referred
The Hon’ble Supreme Court majorly relied upon the texts of Muslim law, “Mulla’s Principle of Mahomedan Law,” which clearly distinguishes between void and irregular marriages under Muslim law under Paras 260 to 264.
The Apex Court compared the concept of irregular and void marriages under Muslim law with the provisions of Sections 11 and 12 of the Hindu Marriage Act, 1955, which provide for void and voidable marriage, respectively, by referring to the case of Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988).
For the purpose of laying down the distinction between void and irregular marriage under Muslim Personal Law, the Supreme Court discussed various judgements as para 260 was interpreted by various High Courts. The list of cases in which the said provision fell for consideration is as follows, in chronological order.
Karimunnissa Khatooon v. Aizunnissa Khatoon (1895): In this case, theCalcutta High Court held that a marriage between a Muslim man and his wife’s sister while the first marriage is still subsisting will be considered void from its very beginning.
In Tajbi v. Mowla Khan (1917), theBombay High Court,while mostly relying on Fatawa-i-Alamgiri, a book written by Aurangzeb on Islamic law, held a marriage between a Muslim man and his wife’s sister to be irregular and not void. The Court reasoned that a marriage that is able to become valid by a subsequent event, such as the death of the first wife or the pronouncing of talaq by the husband, cannot be rendered void and hence declined to accept the law laid down in the earlier judgement of the Calcutta High Court.
In Kaniza v. Hasan Ahmad Khan (1926), the Oudh High Court, also declined to accept the view of Calcutta High Court.
In Talimand v. Muhammad Din (1930), the Lahore High Court also declined to accept the view of Calcutta High Court.
In Rahiman Bibi Saheba By Agent Syed Yusuf v. Mahboob Bibi Saheba (1938), the Madras High Court also declined to accept the view of the Calcutta High Court.
Critical analysis of Chand Patel v. Bismillah Begum & Anr.
The judgement is significant for its interpretation and application of the provisions of Section 125 of the Code of Criminal Procedure (CrPC) alongside the principles of Muslim personal law concerning marriage and maintenance. Here is a critical analysis of the judgement, addressing its impact and implications:
Harmonisation of Personal and Secular Laws
Strength: Here, the Court successfully accommodated Muslim personal law with Section 125 of the CrPC, which has otherwise been outside the jurisdiction of Islamic law. This balance helps to bring the maintenance claims under Muslim law as well as the CrPC so that maintenance can be awarded on true merits instead of sheer prejudice against the Islamic law.
Challenges: Muslim law being a law that is interpreted differently by different sects of Muslims can create inconsistencies in application and reconciling such personal law with secular law can sometimes lead to complexities and ambiguity.
The Supreme Court emphasised the principle of harmonious construction, which requires interpreting laws in a manner that avoids conflict, ensures that all the laws shall be in line with the principles of equity and justice and ensures that all laws operate in a complementary manner.
The Court found that the Muslim Women (Protection of Rights on Divorce) Act, 1986 and Section 125 CrPC should be read together with the provision of other laws that are aimed at protecting the rights of the vulnerable sections of society and ensuring that divorced Muslim women are provided with adequate maintenance.
The Court also emphasised that the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, are meant to supplement, not supplant, the general provisions under Section 125 CrPC.
Clarification of void and irregular marriages
Strengths: The distinction between void and irregular marriage when it comes to unlawful conjunction has been done very soundly by the Court on the basis of the Principles of Islam and their impact on the provision of maintenance has also been discussed extensively. This distinction helps provide a clearer legal framework for future cases.
Challenges: However, because society is dynamic in nature and keeps changing, scenarios are also dynamic. The differentiation done in the judgement does not offer clear guidance on all possible scenarios or the grey areas that can arise in complex marital disputes.
Protection of vulnerable parties
Strengths: This mode of thinking focuses more on the welfare of parties who may be in need of protection, such as wives and children, whereby they can make maintenance claims in certain circumstances, though the marriage may be otherwise deemed void or voidable.
Challenges: There are implications for a more liberal construction of maintenance provisions than might be justified on the face of the judgement, and this may open up new possibilities for claims where marriages may not meet certain tests of validity. This can foster more lawsuits and create inconsistencies in judgments.
Beneficial legislation and social justice
Every law serves a purpose; similarly, Section 125 CrPC is a beneficial legislation designed to provide a quick and summary remedy to those in distress. It aims to prevent vagrancy and destitution among women and children, irrespective of their religion.
The Court reaffirmed the same principle that the welfare and protection of divorced women, including Muslim women, is paramount. Excluding them from the protection of Section 125 CrPC, the purpose of which is to protect the needs of vulnerable classes, would defeat the purpose of the provision.
Constitutional principles
The broader principles enshrined in the Indian Constitution are principles of equality and social justice; this judgement also aligns with the broader constitutional principles of equality and social justice.
The Court underscored that the law must be interpreted in a manner that upholds the dignity and rights of individuals, particularly those from marginalised and vulnerable communities.
The Supreme Court also relied on its previous judgments, such as “Danial Latifi & Anr v. Union of India” (2001), which upheld the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, while ensuring that the rights of divorced Muslim women to maintenance were protected and that they were not left destitute.
In summary, the Supreme Court’s judgement in Chand Patel v. Bismillah Begum represents a thoughtful attempt to reconcile Muslim personal law with secular legal standards for maintenance claims. While the decision is significant for its clarifications and precedents, its application could raise challenges due to the varying interpretations of Muslim law and potential ambiguities in its scope.
Conclusion
In conclusion, this judgement represents a landmark decision in harmonising Muslim personal law with the secular legal framework of the Code of Criminal Procedure (CrPC), particularly in matters involving marriage and maintenance. The case clarifies the distinction between valid, void, and irregular (voidable) marriages under Muslim personal law and their impact on maintenance claims under Section 125 CrPC.
The Court’s ruling enhances the legal position of individuals that may be at risk of suffering from an unhappy marriage or one that is void or unconsummated by offering clearer rulings regarding the circumstances in which maintenance claims will be appropriate. This can be in consonance with the general objective of Section 125 CrPC, the purpose of which is to remove the likelihood of destitution and support dependents.
The court’s decision to uphold the right of divorced Muslim women to claim maintenance under Section 125 CrPC reinforces the constitutional values of equality, non-discrimination, and social justice. This decision aligns with the broader goals of the Indian Constitution to protect and uplift marginalised and vulnerable sections of society, particularly women. The Court further opined that an irregular marriage is not null and void from its outset as per Muslim personal law.
However, the decision also presents challenges in terms of reconciling differing interpretations of Muslim personal law and potential ambiguities in its application. However, for the purposes of analysing the effect of the judgement, it is argued that the impact it has or will have on future cases can be subject to variation influenced by regional guidelines on how Muslim personal law is interpreted and applied in different areas. In sum, it can be said that this forms the basis of a legal precedent where courts and practitioners dealing with similar cases that mix divine and legal norms of the civil law system come in handy. It has therefore important implications on how parties to the personal law are protected and treated, as they are accorded equal treatment while their religion and culture are observed.
Frequently Asked Questions (FAQs)
Why is a marriage that falls under unlawful conjunction considered irregular ?
In Islam, there are two kinds of prohibitions when it comes to rendering a marriage void or voidable.
Absolute Prohibition : A marriage that is absolutely prohibited in other words, there is no possible method for changing such a marriage from void to valid is unlawful on the grounds of affinity, fosterage and consanguinity.
Relative Prohibition : A prohibition that can be removed and the effect of which will be the validation of a marriage that otherwise would be void is called a relative prohibition. They can also be considered temporary bars, such as the fifth marriage of a Muslim man. Such a marriage is capable of becoming valid if the man divorces one of his four wives and unlawful conjunction falls under relative prohibition; thus, such marriages are capable of being made valid.
However, this distinction is also different in the two major sects of Islam, i.e., Shia and Sunni. Under Shia’s, there is no such thing as an irregular marriage, a marriage is either valid or void; hence, a marriage that is irregular is void under Shia’s, but in Sunni’s, it is not the same, Sunni law recognizes irregular marriages as marriages that are capable of being valid.
What are the implications of this judgement for future cases involving Muslim personal law and maintenance claims ?
The Supreme Court’s judgement in “Chand Patel v. Bismillah Begum and Anr” (2008) has significant implications for future cases, particularly concerning the rights of divorced Muslim women to maintenance. Some of the key implications are as follows:
Reaffirmation of Maintenance Rights under Section 125 CrPC : The ruling upheld that Muslim women who have divorced, their right to maintenance secured under Section 125 of the Code of Criminal Procedure (CrPC), ensuring that they are not left out of the general law’s expeditious and comprehensive remedy for maintenance.
Protection Against Destitution: By allowing claims under Section 125 CrPC, the judgement ensures that divorced women, irrespective of their religion, have access to financial support and are protected against destitution and vagrancy.
The judgement in “Chand Patel v. Bismillah Begum and Anr” (2008) has far-reaching implications for the protection of divorced Muslim women’s rights to maintenance. It ensures that they are not excluded from the general legal provisions available to all divorced women in India, promoting a more inclusive and equitable legal system. The judgement serves as a guiding precedent for future cases, reinforcing the principles of social justice, gender equality, and constitutional values.
What is the significance of unlawful conjunction (jama bain-al-mahramain) in Muslim marriage law?
“Unlawful conjunction” or “jama bain-al-mahramain” is the term used in Muslim marriage law to describe a ban that forbids a man from marrying two women at the same time if their relationships are so intimate that they could not legitimately marry each other if they were of male gender. The foundation of this idea is Islamic family law, which strives to uphold limits and avoid problems within the family.
Examples of Prohibited Marriages under Jama bain-al-maharamain:
Sisters: A man cannot be married to two sisters at the same time. This is explicitly mentioned in the Qur’an (Surah An-Nisa, 4:23), which states: “And [also prohibited to you are] two sisters [in wedlock] at the same time…”
Aunt and Niece : A man cannot be married to a woman and her niece (either his brother’s daughter or his sister’s daughter) simultaneously.
The Supreme Court judgement in “Chand Patel v. Bismillah Begum and Anr.” (2008) has significant implications for the rights of Muslim women in India, particularly in terms of their rights to maintenance following a divorce. Here’s how this judgement impacts the rights of Muslim women.
The ruling upholds Muslim women who have divorced as being qualified to pursue maintenance claims under Section 125 of the Code of Criminal Procedure (CrPC). In contrast to the iddat period, a set period following divorce during which a woman is not permitted to remarry, this section offers a more comprehensive and inclusive structure for maintenance.
What is Section 125 and whether maintenance under it can be claimed by all despite presence of personal laws ?
Section 125 of the Code of Criminal Procedure (CrPC) provides a legal mechanism for the maintenance of certain relatives who are unable to maintain themselves. It is a secular provision, applicable to all citizens of India, irrespective of their religion.
Maintenance under Section 125 CrPC can be claimed by all eligible persons, regardless of their religion or personal laws. This is because Section 125 is a secular law designed to prevent destitution and ensure that vulnerable individuals receive financial support for their basic needs.
The Apex Court in Mohd. Ahmed Khan v. Shah Bano Begum (1985), held that a female Muslim is entitled to maintenance under Section 125, despite the provisions of Muslim personal law, emphasising that the CrPC’s provisions are meant to protect individuals from destitution and take precedence over personal laws.
Again, in Danial Latifi v. Union of India (2001), the court interpreted the Muslim Women (Protection of Rights on Divorce) Act, 1986, in a manner that does not bar Muslim women from seeking maintenance under Section 125 CrPC, ensuring that they can still claim adequate maintenance.
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This article is written by Komal Saloni and further updated by Shubhangi Tiwari. This article covers various details regarding contract drafting, its importance, skills required, opportunities in contract drafting and FAQs that every law student, young lawyer and practitioner should know about contract drafting. The article further illustrates the various other supplementary laws required to set up and master contract drafting skills and services.
Table of Contents
Introduction of contract drafting
Contract drafting is one of the most decisive parts of the contract management process because it provides the foundation upon which the rest of the contract is assembled. Clarity and precision while drafting a contract are considered to be essential for making sure that both the parties’ needs are fulfilled. In the legal profession, writing legal documents is the most appropriate way to put the facts of the cases before the courts and other authorities. Drafting is simply a synthesis of laws and facts on paper in a very simple and elegant manner, enacting legal documents. Although expertise in legal drafting skills comes along with the time since efficiency and skillfulness are quite essential in this profession. It’s an act of writing legal documents to advocate, inform, persuade and instruct. Drafting is an art, which involves the concept of thinking and then composing. It is important to understand the facts of the cases properly as the whole proceeding depends upon what and how the counsel drafted the matter if the draft has some error that can jeopardise the case. Drafting legal documents is the act of writing legal documents to advocate, inform, persuade and instruct.
It is very important to properly analyse the nexus between the law, facts, and the language, which institute the primary essence of drafting. To collect, coordinate and consolidate the matter in the form of a document, requires serious thinking backed by prompt action to simplify the facts with legal writing, open for judicial interpretation to derive the same sense and intention of the parties for which he has been prepared, adopted and since comparatively analysed.
Origin of “contract” as a concept
There was an era of barter system being the norm, when nothing was codified, practice of exchange was led by a lot by norms. There were times of various complexities in the business that could not be enforced. Norms that were prevalent in one industry were inapplicable to another. An unexpected turn of events changed the very core of the business set up by two parties.
A need for a customised agreement was felt where the agreement would categorically govern only the two parties entering the contract. This document would also be in a written form, for cross-checking and of course, enforcing the breach of the agreement. Since each contract catered to a very specific need of the parties, having a law around it required a special approach.
The Indian Contract Act, 1872 lays down not the offences or the procedure, but only the limitations within which a contract has to be drafted. Eventually, in the second part of the Act, it outlines the specific type of contracts, denoting the rights and liabilities of each party to the said type of contract.
Meaning of contract
According to the Indian Contract Act, 1872, “contract” is defined under Section 2(h) as ‘an agreement which is enforceable by law’. The term contract is defined as an agreement between two or more parties that is binding in nature or it can be said that the agreement with legal enforceability is said to be a contract. It defines and creates the legal duties and obligations of the parties involved.
How frequently contracts are used
Today, contracts are a part of every little thing that we do. Every time we press ‘I agree to the above terms and conditions’ forms a part of the contract. From opening a social media account to signing a receiving parcel, from ordering an item online to fund-raising for a startup, contracts form an integral part of our day-to-day lives, even without knowing much about it. Let us revisit the very basics of contracts as recognised by the Indian Contract Act which reflects the making of a contract as a process wherein the following steps are to be essentially followed enumerated in Section 2, the interpretation clause:
As per Section 2(a), when someone expresses to another that he is willing to do something or refrain from doing something in order to get that other person’s consent to that act or abstinence is considered to make a proposal or an offer.
As per Section 2(b), acceptance to such an offer, leads to the proposal becoming a promise.
In return for this promise, the other party may themselves do or abstain from doing an act, which forms the consideration of the promise. [As mentioned in Section 2(d)].
The next step in the formation of the contract is when every promise and every set of promises, forms the consideration for each other, it is considered as an agreement under Section 2(e).
Lastly, this agreement enforceable by law will be considered as a contract under Section 2(h).
Given the above pointers, a legally sound contract has the following features:
There must be the consent of both parties to the contract and that consent should be consensus-ad-idem. This means that the parties should consent to the same things in the same sense as mentioned under Section 13 of the Indian Contract Act, 1872.
The consent given by the parties should be free as mentioned under Section 14. Free consent here means that it should be free from any sort of undue influence, fraud, misconception, coercion or mistake as to facts and law.
As per Section 10, all agreements are contracts if they are made by free consent of the parties for a lawful consideration and a lawful object.
As per Section 11, the parties must be competent to contract. A party is competent to contract when he is of sound mind, he has the age of majority and is not disqualified by law.
Importance of contract drafting
Establishing clear rights and duties
Before presenting themselves in the courtroom, advocates must be prepared with their cases and other briefs. However, advocates usually do an excellent job of client counselling and evidence collection but after all, if advocates are unable to present their facts correctly and straightly for the drafted document, the judge will put down their whole efforts.
Serving the interests of all parties
In business, contracts are quite significant and frequently play a crucial role in a company’s accomplishments. When drafting a contract, there are many aspects to keep in mind, such as making sure that the contract serves everyone’s best interests and helps to resolve and prevent a future contract dispute.
Preventing disputes
Well drafted contracts facilitate companies in enjoying several benefits. It prevents breach of contract and litigation and further improves business relationships. As seen often, lawsuits arising out of disputes arising from contract-related issues can affect small businesses, imposing a financial burden on them and causing an emotional strain for the business owners.
In accordance with the Small Business Authority, lawsuits related to contract matters can create various challenges for small businesses, such as placing emotional strain on business owners and causing burdensome financial costs, which emphasise the importance of successful contract drafting.
Other important aspects of drafting a contract
A contract consists of several specific and particular clauses, written by one or more parties to the contract, and is considered legally binding only when the consent of all the parties to the contract is given. Therefore, the terms agreed upon by the parties to the contract are recorded in a documented form. This document helps in doing away with any kind of dispute in the future regarding the rights and obligations of the parties to the contract. However, even a written contract itself cannot be considered as a complete fool-proof document unless it is registered.
The contract draft, considered as the primary document, is referred to by the judge while hearing the case. Therefore, a good draft with 100% accuracy is needed in order to move one step towards succeeding in a case. The precise format of a contract and its formal language are essential for convincing the adjudicating authority and presenting the case according to the counsel’s point of view.
It’s an outline of the whole facts in proper language and precise format, which must be easily reached to convince the concerned authority and should be understandable to them in the same view as the counsel presented. Drafting is done to make the whole case clear and precise in front of the authority before whom it is presented.
How to learn contract drafting
Like every skill which exists, it is only via practice one can learn good contract drafting skills. The next best way would be to analyse a contract.
Understanding boilerplate clauses
Apart from the terms and conditions laid down in the contract, there are some clauses that are put in every contract, referred to as boilerplate clauses. For beginners, these are the standard clauses that help in understanding the rhythm of drafting and writing legal contracts. These clauses also aid in understanding the extent to which the contracts have to foresee the future. For example, after the pandemic, the Force Majeure clause now includes man-made lockdowns and pandemics. Other boilerplate clauses include severability, termination, notice and official modes of communication.
Knowing the purpose of the client for contract drafting
After mastering all the additional clauses which are integral to every contract, mastering the art of contract drafting requires knowing the purpose of the contract. The purpose could be something as drafting the regular terms and conditions of a website or a rent agreement, or something as complicated as an IP licensing agreement or acquisition agreements.
Needless to mention, in order to make a career in contract drafting, subject knowledge and the laws of the domain should be absolutely clear to the drafter. Apart from that, compliance plays an important part in where the next biggest issue happens. It is imperative the contract drafter knows the process of implementation of a contract and industry practises in order to be of aid to their client.
Things to keep in mind
It is imperative that you sit with your client and understand their perspective first which will explain their need to get into this contract. Second, it becomes important to lay out the terms and conditions and categorise them as negotiable and non-negotiable. There would be certain terms that the client may be interested in letting go of, but certain conditions would be deal-breakers.
Counsel your client for the negotiation. A lot of times clients believe that they are entitled to everything they ask for. However, it is necessary to calm down the client and remind them of the give and take and that the other party is also entitled to receiving something for their benefit.
In a lot of situations, clients have to be reprimanded for behaving in a manner so that the negotiations for the contract may take place more smoothly. In a lot of other situations, especially matrimonial settlements, these things are pre-planned in order to demonstrate that the party has taken a big hit.
Just like bargaining, negotiations need to start from the extreme end so that you have some bargaining chips set aside for losing. Instead of losing something of value, it is easier to show that you are letting go of so many terms and conditions in order to get that one non-negotiable deal.
Benefits of contract drafting skills
Suppose a situation arrives where a client comes to you either with their problem in courts or with a corporate firm or a company, when they put their problem before you, you first listen and read the facts, understand it properly, and then start drafting the document for further proceedings. To present the facts and submission of the parties in brief before the court, or in any tribunal, excellent drafting skills are required and this is the reason for which client comes to you because you are the one who represents the client in the court.
In business, contracts are quite significant and frequently play a crucial role in a company’s accomplishment. About contract drafting, there are many aspects to keep in mind, for instance making sure that the contract serves everyone’s best interests and helps to resolve and prevent a future contract dispute.
While drafting contracts for construction management, builders, a real estate contract, or any other contract, it is essential to draft effective business contracts.
A well-drafted contract benefits companies in many ways as it avoids breach of contract and litigation to improve business relationships. In consonance with the Small Business Authority, lawsuits related to contract matters can create various challenges for small businesses, such as placing emotional strain on business owners and causing burdensome financial costs, which emphasise the importance of successful contract drafting.
How is contract drafting different from drafting of other pleadings
In order to determine this, it is imperative to know that contracts and lacunae in these contracts led to disputes and litigation. The purpose of pleading is to put the facts and circumstances before an authority, which could be a judge, an arbitrator, or a quasi-judicial body. However, drafting a contract is for the utility of two entities that are primarily not in the legal domain. Be it a commercial lease agreement, an acquisition document or a shareholder agreement, the purpose of all these agreements is to determine rights, duties and obligations between two parties.
For lawyers and advocates, it is imperative that they have significant domain knowledge about the field for which the contract is being drafted, along with the laws that regulate them. This makes the drafting of contracts a genre of legal drafting that needs nuanced precision in order to master.
The art of contract drafting is a fine balance between legalese and domain expertise, carrying the weight of the needs and wants of both parties. The contract drafters also need to keep in mind the foreseeability of the contract, which ranges far beyond expressing the facts and laws related to the particular case at hand, as in submitted pleadings before court.
Points to ponder
A general rule is that if two different words have been used that, in common parlance, have similar/same effect, it is safe to assume that they have different meanings. It could be the same end with some minute changes here and there, different means to the same end, or an entirely different end altogether.
Like a statute, it is beneficial to clearly write and define certain words and processes. Ambiguity, unless it is in the favour of the client, is always detrimental to the implementation of a contract and leaves room for interpretation, which may or may not be in the client’s favour.
Giving words and phrases definitions also means that the contract ensures that it is uniform from top to bottom and there is no departure from consistency. Redlining such a document also becomes easier as it aids in minor changes that the other party might have sledged by you and wish that attention was not paid to tiny details.
Benefits of contract drafting skills for lawyers
Equally similar to litigation, contract drafting is an essential aspect of legal practice. Lawyers working in the corporate field are indulged in the tasks of preparing reports, reviewing, strategising, analysing, and negotiating contracts. Therefore, there is one thing that an advocate can be confident about with respect to skills is contract drafting skills.
You’ll be spending the growing years of your career practising the art of interpreting contracts, evaluating them, adding clauses and then drafting them from scratch. Any deal between any two or more parties has an underlying contract. If you’re working at a law firm, it is essential to learn contract drafting skills.
Terms and conditions of the deals between two parties are one of the essentials of a valid contract. If you are working in a law firm dealing especially in mergers and acquisitions, the drafting would be essential. Although drafting is basic in every sector as an advocate, lawyer, legal advisor, and so on.
Even if you are working as an in-house counsel, reviewing and drafting contracts are done half of the time. It can be anything ranging from intellectual property procurement to talent acquisition or licensing, etc. Practising as an advocate in a litigation career along with contract drafting can help supplement the income of young lawyers. As an advocate, you get many clients hand in hand seeking advice on common contracts like lease agreements, rent agreements, employment agreements, partnership agreements, etc. In the field of litigation, knowledge is of paramount importance. You can’t advise anyone without having proper knowledge of that matter whether it is contract drafting, criminal cases, or any civil matter, etc.
Improves negotiation skills
With drafting contracts, negotiation skills go hand-in-hand. Every contract, case, or deal has to be negotiated by both parties. No party wants a bad end to their deal; however, they will negotiate the rights, considerations, obligations, etc., at length. The idea of negotiation comes from agreeing on one thing instead of something else. While negotiating a contract, a good lawyer knows what their client needs the most and can also deliver the same. Just like drafting skills, negotiation skills improve with time and experience, and there is also a lot of practice to be done. The more contracts you draft, the more your negotiation skills will be enhanced simultaneously. Contract drafting is of such importance that the advocates must know exactly which clauses are to be inserted or which ones are not required to put forth the client’s interest.
Improves analytical abilities
When you learn how to draft contracts, your analytical abilities will be enhanced. You need to understand your client’s facts so that they can brief you on their requirements. After that, you proceed to draft a contract that is in favour of your clients and protects their interests as well.
Improves knowledge of laws
Law school teaches us how to interpret and analyse the laws through assignments, tests, research work, client counselling, moot courts, etc. These are some activities by which students can improve their skills with exposure to practical knowledge and application of the laws learned in the law schools.
However, contract drafting and contract laws are two different things. One can think that contract laws are the basis of the deals and it is the groundwork of the deal, but the deals may vary. You may have a client who needs a Master Service Agreement, an NDA, a joint venture agreement, or an Intellectual Property licensing agreement. Different contracts involve different laws and require expertise in them as well.
Accordingly, lawyers have to gain a functioning knowledge of different laws at the time of determining rights and obligations, identifying potential risks, etc. This requires them to not only know about the laws but also have a functioning knowledge of the common laws and regulations like IP laws, IT laws, labour laws, and others.
What job opportunities can good drafting skills get you
It is very much expected from lawyers irrespective of their area of specialisation to have basic and key skills in contract drafting. Another beneficial legal skill is contraction negotiation. These are the most lucrative and extremely rewarding skills and those who have them subsequently can foresee good career opportunities relating to them. In India, most lawyers are unable to hold proper training in contract drafting thus resulting in poor drafting skills. Some of them learn through trial and error and others are blessed with a wonderful senior who is patient enough to review their work and guide further.
As a licenced practitioner
Advocacy which is to practise in court is one of the key professions that most law graduates prefer. Fresh lawyers start practising in court under senior advocates to gain experience before becoming successful advocates. This includes the drafting of different documents and cases, the review of records, and updates of court proceedings. This helps them to develop further insight into the laws and consequently, in the future, they will be able to practise individually by learning different aspects of the law. The choices are unlimited when it comes to various fields of law. Opportunities include working in dedicated teams in various law firms that look into niche subjects like private equity, merger and acquisition, and competition law. Further new opportunities include media and entertainment law, sports law and privacy law.
Legal advisor
After completing a law degree, with good drafting skills, apart from joining any law firm, you can become a legal counsel in business corporations, private companies, or banks. As a legal advisor, you can advise NGOs and clients and assist people in making the right decisions. Various corporations and government organisations hire legal advisors for better consultation and for providing legal guidance on different legal matters. Someone who is good at drafting and reviewing contracts can work well because the major workload in a company requires contract drafting and approval along with due diligence and compliance.
In-house counsel in private companies
There are tremendous opportunities all over the world to join private companies. They hire legal counsel to support their organisation in legal decision-making. Anyone looking for a career in private companies should focus on different legal aspects involving problem-solving ability and drafting skills. While someone can write about the matter, they are confident enough to make a good decision.
As a legal analyst
Law professionals could join law firms or corporate firms to work as legal analysts in the company. Here, drafting ability works the most. You have to assist in the drafting of various documents on different matters and also assist attorneys as well. It is a great opportunity in the field of commercial law. The work profile needs the lawyer to be well-organised and analytical too. The job of a legal analyst usually involves having substantial knowledge about the domain the company is working in. It further requires the ability to read data and provide legal analysis on the basis of that data.
Contract drafting in the international arena
Knowledge of laws of two countries
You could be a dual licenced legal practitioner, have international clients who had set up their business in India, or have contacts in another country as you have pursued a degree there. Having knowledge of a new country’s laws can be beneficial for your international contract drafting career, as you are a rare combination who knows the laws of both countries and are better placed to give a bird’s eye view.
Exposure to different areas of law
Data privacy and technology law originated in developed nations. Since these aspects of the world are globalised, having gained domain knowledge and being the sole attorney in a different country gives you an edge. Working in different economies with different levels of advancement makes you ready for what contracts you may have to draft in your own country in the upcoming times.
Being ahead of the curve
Be it your own country dominating the globe or another country coming to you, knowing how to draft contracts for something that is high in demand aids in immediate growth and puts you ahead of the curve in comparison to your colleagues. In this cut-throat competition, it is always recommended to be above and beyond the competition, and knowing the laws up and coming in demand is going to help you catapult your career.
Useful tips to master contract drafting
Handling clients while contracting
Lawyers do many things for their clients. They advise them, argue for them in courts and agencies, negotiate for them, lobby for them in legislatures, and so on. Their practice and experience in different areas of law give clients a sense of how the same rule can be analysed in two different contexts. Handling clients is not always an easy and smooth thing to deal with.
There are a few problems, as identified, associated with client handling at the time of drafting as discussed below:
A different purpose for different clients
Every client’s problem is different, and all are equally important and require an equal amount of time. But some cases need more time and attention than any others. There may be a chance that the advocate addressed those kinds of cases for the first time or some highly disputed matter that may have never been addressed previously. This raises the difficulty level for the advocate or person who is drafting that particular matter, as it may become immensely difficult for some advocates to understand that the nature of cases is different from the prior one in which the drafter may be engaged.
Coordination challenges
Sometimes it is difficult and challenging to handle different clients at the same time while drafting important documents. Sometimes, with a lack of experience and skills, it might be possible that the facts and matter of two different cases may get mixed up and appear in others, creating a huge problem and confusion soon.
Unable to fulfil requests
It is observed that a lawyer has to deal with the client’s unrealistic expectations and concerns. However, drafting itself requires more attention. It seems stressful for advocates to handle clients while drafting.
Budget problems
It has been widely seen that most of the clients are unable to bear the expenses of litigants, often devising the solutions and spending less money on cases, reducing the interest of the lawyers in the case.
What are the top contract drafting skills that are most essential for any job
Remember your audience
Every word you write should be tailored according to the needs of the reader. While drafting, the document may embody the same laws which may be similar to any other cases, but, the facts and the contentions that the client is seeking should be included properly in the content. The tone of the draft varies according to the documents intended for the audience. For example, a brief submitted by the advocate must persuade the court. A memorandum to a client shall be such that it analyses the issues, reports the statement of the law, and suggests a suitable course of action. Always keep your audience in mind when drafting any piece of writing.
Organise your writing
Organising is the key to successful legal writing. Create a blueprint for your writing by using visual indications to guide the reader. Use introductory paragraphs, make use of transitional phrases (“that”, “however”, “furthermore”, “besides,” etc.) between the paragraphs, and use headings and subheadings to break the hunk of the text. Start introducing each paragraph with a topic sentence, limit each paragraph to a single topic, and sum up the point in the concluding sentence. The organised structure of the drafted document helps the reader understand the facts properly and promotes reading ability. Use a numbering system like 1,2,3,4,5…… and so on to avoid any misconceptions and for better reference and understanding.
Ditch the unnecessary legal jargon
The use of legal phrases and jargon can make the drafted document very abstract and strained. Some of the words include legalese such as herewith, aforementioned, heretofore, and wherein. These are words that have the power to create difficulty in comprehension in clear and simple drafted contracts. To avoid the jargon, try to read your sentences and also take the help of colleagues or substitute those tough words with simple and concrete terms for clarity. You can understand this with an example, rather than using “I received your correspondence,” it can be written as “I received your letter.” This sounds clear and concise.
Use action words
The use of action words seems more natural and prompt when speaking, and it also makes your legal composition more powerful, vivid, and dynamic. For better understanding, some examples can show the difference between the statements. As has been mentioned below, ‘weak’ denotes a sentence that is quite unclear, and the ones put forth as ‘better’ highlight clear and formal sentences:
Weak: The witness quickly came into the courtroom.
Better: The witness bolted into the courtroom.
Weak: The defendant was not truthful.
Better: The defendant lied.
Weak: The judge was very angry.
Better: The judge was enraged.
Avoid using passive voice
Avoid the use of passive voice impersonating responsibility for action by removing the subject of the verb. The use of active voice indicates that the person is directly seeking for himself/herself in his/her words to the court without the involvement of the other party. It acts in accordance with clarifying the plea before the court or the person whom the justice-seeking person asks for.
Edit accordingly
Editing is very important in any document after drafting. Edit your drafted document properly, diligently, and efficiently, and omit unnecessary words. Proofreading, in this case, plays an essential role. Check all your spellings, grammatical errors, or punctuation, and the meaning of the sentence, whether clear or not. Analyse all this before submitting the document before the court for further proceedings, because once you are done with your drafting and submit it to court, the court grants that particular draft in good conscience. Also, in the event of any fault in drafted documents, the other party and their counsel can undermine your credibility as a legal professional.
Growing complexities in the legal profession : drafting skills as a way out
Skill and efficiency hold an important position when it comes to drafting contracts. It requires thorough knowledge of the law, judicial principles, and procedures besides being proficient in the English language. Perfect drafting of any matter in respect of suits, complaints, applications, appeals, writ petitions, reviews, revisions, and other matters surely leads to saving of time, money, energy, and expectations of not only the learned members of the bar and bench but also the parties to the disputes. This is the reason for why drafting, conveyance, and pleadings has been made as a compulsory practical subject in law schools in India.
Students who gain the perfection and proficiency along with the requisite knowledge in the drafting of deeds, criminal complaints, civil pleadings, civil as well as criminal appeals, writ petitions, the Special Leave Petitions, contempt petitions, etc. shall undoubtedly become an ideal legal professional.
Laws to be dealt with extensively while drafting contracts
Knowing the agenda of the contract and therefore providing the best solution to the parties dealing with the dispute at hand is one of the most overlooked aspects in contract drafting. This, however, is heavily dependent on domain knowledge. This is not only restricted to knowing the laws that govern the domain, but also knowing the industry practices and the practical utility of the contract.
Contract Law
Understanding and writing an exam on Contract Law is the opposite of what this piece of legislature translates in real life. The first half of the Indian Contract Act, 1872 lays down the rules on the limitations on which contracts can be made. The second half of the Act explicitly mentions the specific type of contracts and the specific terms and conditions in each of them. It lays down the contracts of guarantee, pledge, bailment, agency and hypothecation amongst others. These specific types of contracts lay down the correct base for further contracts to be customised according to the needs of the parties. The Act opens all its doors towards every possibility, catering to the needs of any and every type of contract possibly required.
Sale of Goods Act, 1930
This Act regulates the sales of movable property. This was initially a part of the Contract Act but was found to be inadequate towards catering to the conditions of the same. The Act defines various terms such as buyer, seller and delivery of goods and caters specifically to all the transactions required for the movement of deliverable goods, perishable items and the like. The Act further lays down conditions and warranties and how the transfer would take place. Domain knowledge of this contract would help in making very niche contracts pertaining to freight and cartage, especially in the international domain.
Intellectual Property Law
Intellectual Property has grown into one of the most lucrative fields in today’s time. Media and Entertainment Laws have grown multifold due to newer films, shows and OTT spaces. Protection of personality rights has never been more stringent as social media becomes more and more popular. Social Media content creators and influencers need copyright protection and if they start their own company then another set of laws are required. Sports and technology law are other domains that are constantly on the rise, and given the time and age, these areas will only be thriving in the future.
Company Laws
A company is a child of legal fiction-a non-living entity which has been recognised as a legal person in the eyes of the law. From the way it is going to work, to the objective of the company (Memorandum and Articles of Association), from its internal policies and legal compliance to the litigation the company faces, Company laws is the perfect place for learning commercial law from the inception of a company to its death as winding up. Every aspect of it has to be in black and white, which leaves room for legal opportunities to be everywhere.
This is one of the few areas of law where having a corporate understanding translates well into a thriving litigation career, so that is the eventual goal. Having a contract drafting career for a company is a great way to learn the nuances of the business and see the Companies Act, 2013 in action, and once you are familiar with the process, the domain knowledge over the subject would be of immense help in arguing before the Company Law Tribunals.
Labour Law
Labour laws deal with labour unions, trade practises, daily wages, and represent their day-to-day problems. The collective power of the union gives the employees a bargaining chip over the employer and the practice is extremely niche, meaning litigation in Labour laws is not something everyone can afford. Therefore, in order to prevent damage, the companies seek contract drafters with great labour law knowledge so that even unforeseeable circumstances are taken care of. With hiring new talent, complying with labour law policies and overall keeping the ground running, labour law practice is a necessary evil that the domain requires, and watertight labour policies drafted by legal practitioners keep them running.
Setting up your independent practice
The usage of contracts in our day-to-day lives has exponentially increased, and therefore, advocates are setting up their independent practice in order to cater to this growing demand. Additionally, more and more lawyers are duly qualified to practise in more than one country. Apart from being a source of income, drafting contracts serves as an aid in keeping abreast with the legal developments in those countries.
Suggestions
However, the following pointers and certain skills need to be honed before going independent.
Presence of mind
The extensive working hours of an advocate do not get over with the day-to-day assigned work. The increasing number of cases brings in contract drafting work which requires attention even after working hours. Clients are the primary source of information for the cases. Irrespective of in-person or virtual mode, it is extremely essential for an advocate to communicate and talk to their clients. The presence of mind and wholesome attention is indeed required, it is one step towards achieving success in the case.
Don’t overreact
One should not react in a way that may be perceived to be judgemental or lose your viewpoint of neutrality based on facts in the cases. Once your client gets comfortable, it must be remembered that you certainly continue reacting positively.
Don’t over-analyse
It is important not to analyse the situation of clients yourself without knowing the facts properly. If there is a need to think a little, you should. Most of the time, advocates end up making the wrong decisions as a result of overanalyzing and trying to provide the best remedies to clients. This in turn, harms the client and affects the possible remedy that could have been achieved.
Be verbal about things and understand the theoretical basis
Advocates have to be verbal about their time issues while handling different cases and clients to maintain the peace at work that actually can help the client. Also, it is important to keep in mind the drafting points; they provide the material facts and important aspects that are not prepared and remembered by everyone.
Conclusion
Hence, drafting is an art which we as lawyers do not just learn in one day, rather, it takes a long way to excel in such skills. What is important is your learning ability, how much understanding you want to develop, and your interest in the matter of course. So stay calm, have patience, work hard, and focus on enhancing your drafting skills. Patience is the key here, and we must learn from every mistake as well. Hope this article helps you further.
This article is written by Tisha Agrawal. The article deals with the case of Nanak Chand vs. State of Punjab (1955), with reference to its facts, issues raised, arguments made, judgement, concerned legal provisions of the Indian Penal Code, 1860 and the Code of Criminal Procedure and the critical analysis.
Table of Contents
Introduction
The case of Nanak Chand vs. State of Punjab (1955) is a pivotal legal landmark judgement decided by the Hon’ble Supreme Court of India in 1955. The case revolves around the intricacies of the Criminal Justice system. It particularly concerns the liability of individuals for group offences. In a tragic incident, Sadhu Ram loses his life, prompting a rigorous legal inquiry into the culpability of the accused parties. The two key provisions of this case are Section 34 and Section 149 of the Indian Penal Code, 1860. This case provided a platform for the judiciary to clarify the ambiguities revolving around these provisions. This case provides valuable insights into the application of statutory provisions and the evolution of legal doctrines. It was held by the Court that Objective is different from Intention and a person cannot be held liable for an offence for which he has not been charged. Also, it was clarified that no specific offence is created under Section 149 of the IPC. Let us understand the case in detail.
The facts of the given case are such that one person named Sadhu Ram was killed on November 5, 1953, at around 6:45 p.m., allegedly by the Appellant and his companions. He was present at the shop of one Vas Dev when the attack took place. The Appellant was also there, carrying a Takwa. When Sadhu Ram’s body was examined after his death, it was found out that he sustained several injuries with a heavy, sharp edged weapon, which could have been a Takwa. According to the medical evidence presented before the Court, the Appellant along with others, was only charged with Sections 148 and 302 read with Section 149 of the Indian Penal Code, 1860 (IPC).
However, the Additional Sessions Judge, while dealing with the case, observed that there was no evidence to prove the allegations of rioting under Section 149 but the Appellant and others are guilty under Section 302 read with Section 34 of the IPC for murder. He also acquitted three of the accused.
Subsequently, there was an appeal against the order of the Additional Session Judge before the High Court. The High Court found the Appellant guilty of Section 302 of the IPC but altered the conviction of others to Section 323 of the IPC for voluntarily causing hurt and not murder. The Appellant alone was convicted of Murder and imposed a death sentence. Afterwards, the Appellant brought this matter before the Apex Court on questions of fact and law.
Issues before the Court
The main questions for consideration before the Hon’ble Court were:
Whether the Appellant could legally be convicted of murder and sentenced under Section 302 of IPC when he was not charged with that offence?
Whether Section 149 of IPC creates a specific offence?
Arguments of the parties
Arguments on behalf of the appellant
It was contended on behalf of the appellant that since he was acquitted of the charges of rioting and offence under Section 302 read with Section 149 of the IPC, he cannot be convicted of the offence of Murder separately. A charge under Section 302 has not been framed against him. The appellant placed reliance on the provision of the Criminal Procedure Code in regard to framing of charges and the cases of Barendra Kumar Ghosh vs. Emperor (1925), Emperor vs. Madan and ors. (1914) and Panchu Das vs. Emperor (1907). These precedents support the contention that it will be illegal to convict an accused of an offence under a section for which a charge has not been framed.
It was further argued that, in order to try the accused on distinct charges, there must be those distinct charges filed against him. Every such charge is tried separately except in cases mentioned under Sections 234, 235, 236, 237 and 239 of the CrPC. It is submitted that the charge under Section 149 is different from the offence of murder under Section 302 of the IPC. The exceptional provisions of CrPC did not apply to the facts of this case.
Argument on behalf of the Prosecution
The Prosecution side contended that Section 149 does not create any specific charge for any offence, It merely provides for constructive guilt. The constructive guilt is similar to Section 34 of IPC. Hence, there is no obligation for a separate charge under Section 233 of the CrPC. The Appellant could be convicted and sentenced under Section 302 of the IPC, even though no separate charge for murder has been framed against him. The prosecution relied on the case of Theethumalai Gounder v. King Emperor (1924).
Both arguments were primarily based on the offence created by Section 149 of the IPC and whether the accused can be tried for murder if no separate charge for murder has been filed against him.
Legal provisions involved
Provisions of the Indian Penal Code
Section 34 of the Indian Penal Code
Section 34 states that when a criminal act is committed by several individuals in furtherance of a common intention, each of them will be held accountable for the act in the same manner as if it were committed by him alone. This provision establishes shared accountability, which is present in both civil and criminal law. The essential ingredient of this provision is Common Intention. A common intention is a pre-planned scheme. It existed prior to the commission of the act. Sometimes, common intentions are also created on the spot. The main aspect is the pre-planned strategy to carry out the plan for the intended result.
In order to establish common intention, it must be proven that each of them was aware of the objective of the others. This section does not mention any specific offence. It just states that if two or more people commit a crime for the same purpose in furtherance of a plan, they will be found jointly accountable. It is somewhat similar to Section 149 but it talks about a common intention rather than a common object. The case of Nanak Chand vs. State of Punjab (1955) differentiated between the two elements.
Barendra Kumar Ghosh vs. King Emperor (1925) is one of the earliest instances in which another individual was punished for the act of another. Section 34 does not constitute a particular offence but sets the principle of joint criminal liability. The case discussed the above-mentioned notion of Section 34.
Section 149 of the Indian Penal Code
Section 149 says that every member of an unlawful assembly is guilty of an offence if such an offence is committed in furtherance of the common object of the assembly. When a person is attacked by a group of people, it becomes difficult to identify who has committed which offence; therefore, in such circumstances, every member is made guilty of such offence. The foundation of this provision is that every member of an unlawful assembly sharing a common objective will be liable for the commission of such crime. This provision was incorporated into the IPC to maintain the tranquillity of society and punish those who actively participate in such unlawful assemblies and hurt innocent people. But, in order to convict a person for such offence, the Court must be satisfied that: –
there was an unlawful assembly,
a member of such assembly must have committed an offence and
the offence must be in furtherance of the common objective of the assembly.
To convict a person under Section 149, the prosecution has to establish with the help of evidence that:-
First, the appellants shared a common object and were part of an unlawful assembly.
Secondly, they had to prove that they were aware of the offences likely to be committed in order to achieve the said common object.
Section 302 of the Indian Penal Code
Section 302 provides for the punishment for Murder. Whoever commits murder shall be punished with death or imprisonment for life and shall also be liable for a fine. There must be an intention to cause the death of another person. The intention need not be premeditated and can arise in the heat of the moment. Murder is an evil act and nobody has the right to take away the life of a person. Therefore, the punishment provided under this provision is also severe in nature. essential ingredients of Murder includes: –
Intention
Cause of Death
Bodily Injury
A death sentence or capital punishment is granted to the person who is found guilty of Murder under this provision. In India, a death sentence is given in the rarest of rare cases. It has been ruled by the Supreme Court in Raju Jagdish vs. State of Maharashtra (2019) that life imprisonment is a rule but the death penalty is an exception.
Section 323 of the Indian Penal Code
Section 323 of IPC deals with voluntarily causing hurt. The term hurt includes any bodily pain, disease or infirmity caused by direct physical contact such as striking, hitting or pushing. A person found guilty of such an offence shall be punished with imprisonment, a fine or both. In order to convict a person under Section 323, it is mandatory to test the following: –
The Act shall be voluntary in nature.
Such harm shall not be a consequence of grave and sudden provocation. The section explicitly provides that voluntarily causing hurt due to provocation is an exception to it.
Provisions of the Code of Criminal Procedure
Section 233 of the Code of Criminal Procedure
Section 233 of the CrPC is placed under the chapter of trial before a court of session. This provision deals with entering upon defence. It states that where an accused is not acquitted under Section 232 of the code, he shall be then called upon to enter on his defence and adduce any evidence he may have in support thereof. If the accused puts in any written statement, the judge shall file it with the record. This is an essential part of the session trial. It is applicable when the prosecution’s evidence is incomplete. The accused is given an opportunity to produce evidence in its defence.
This right has been given to the defence to produce its witnesses as part of a fair trial and as part of the legal principle of hearing both sides. The right belongs to the accused and not to the Court concerned.
Section 236 of the Code of Criminal Procedure
Section 236 provides for a special procedure for determining liability for enhanced punishment as a consequence of a previous conviction.
Judgement of Nanak Chand vs. State of Punjab (1955)
In order to decide the case, the Hon’ble Supreme Court first delved into Section 149 of the IPC. It was observed by the bench that under this section, a person who is a part of an unlawful assembly is held guilty of the offence committed even by another member of the same assembly. In simple terms, it means that even if the person had no intention to commit a particular offence and had done no such act except to be present in the said assembly, he can be made liable for the acts done by others in the same assembly. However, in the absence of such provisions, a member of an unlawful assembly cannot be held liable for an offence not committed by him.
Therefore, in situations where the accused is acquitted of participating in the riot, there cannot be any conviction of any one of them for an offence that he has not committed himself. Hence, the charge of rioting is necessary to be proved first in order to further make them liable for other offences under this section.
The Hon’ble Court emphasised that there is a principle element under Section 34 of the IPC, which is the common intention to commit a crime. Consequently, to further the common intention, several acts may be done by several persons, resulting in the commission of that crime. In such an instance, each one of them would be held liable for that crime in the same manner as if all the crimes were committed by him alone.
However, there is no consideration of common intention in Section 149 of the IPC. For the offence committed by one person of an unlawful assembly, all of the persons of such assembly can be held liable. Even though there was no common intention between them or actual participation in committing the crime. There is a difference between object and intention. The object may be common but the intentions of different members of such an unlawful assembly may differ. After analysing the judgements referred by the appellant, it was pointed out that a person charged with an offence along with Section 149 cannot be convicted of the substantive offence without a specific charge being framed. As it is required by Section 233 of the Code of Criminal Procedure.
When a charge under Section 302 read with Section 149 was framed against the appellant, the Supreme Court was indicating that the appellant was not being charged with the offence of Murder. Therefore, convicting him of Murder under Section 302 would be to convict him of an offence with which he has not been charged. As per the medical evidence present and the statements given by eyewitnesses, it is not proven that the appellant used the Takwa on the deceased. Therefore, no particular charge was framed against the appellant and thus convicting him on a separate charge would be prejudicial to his interests and the law. The appeal was therefore allowed by the Court, and the conviction of the appellant set aside.
The following cases were referred to by the Supreme Court while delivering the verdict:
In Barendra Kumar Ghose vs. Emperor (1925), Lord Sumner observed that a criminal act means the unity of criminal behaviour which results in something for which an individual would be punishable, as if it were all done by himself alone, that is in a criminal offence. There is a clear distinction between Sections 34 and 149 of IPC.
It was also held that, for every distinct offence of which a person is accused, there shall be a separate charge and every such charge shall be tried separately.
In Queen vs. Sabid Ali (1873), it was held that there was a difference between object and intention. The object may be common, the intentions of the members of such an unlawful assembly may differ and they may be similar in one aspect that they are all unlawful.
In Panchu Das vs. Emperor (1907), the decision supported the contention that it will be illegal to convict an accused of the substantive offence under a section without a charge being framed.
The above-mentioned cases are the earliest instances of the ambiguities revolving around Sections 149 and 34 of the IPC.
Key findings of the Supreme Court
The judgement delivered by the Hon’ble Supreme Court was complex and difficult to understand. following key points can be taken away : –
There is a clear distinction between the provisions of Section 34 and Section 149 of IPC. These two sections should not be confused with each other. The principle element in Section 34 is Common Intention to commit a crime, whereas Section 149 does not involve common intention.
There is a difference between Common Intention and Objective. The Objective may be common but intentions of the several members of the unlawful assembly may differ.
Both Sections 34 and 149 of IPC represent the rule of constructive liability, which connotes that an individual is responsible for the repercussions of another person’s wrongdoing.
A charge for a substantive offence under Section 302 or Section 325 of IPC is for a distinct and separate offence from that under Section 302 read with Section 149 or Section 325 read with Section 149. A person charged with an offence read with Section 149 cannot be convicted of the substantive offence without a specific charge being framed as required by Section 233 of the Code of Criminal Procedure.
Section 236 of the CrPC can apply only in cases where there is no doubt about the facts that can be proved but a doubt arises as to which of several offences have been committed based on the proved facts. In such a case, any number of charges can be framed and tried or alternative charges can be framed.
Critical analysis of Nanak Chand vs. State of Punjab (1955)
The case of Nanak Chand vs. State of Punjab provides an in-depth analysis of the legal implications surrounding the application of Sections 34 and 149 of the IPC within the framework of Criminal Liability. The court elucidates the jurisprudence and intent of Section 34 of the IPC. it serves as an explanatory role and does not establish any specific offence. It provides that when multiple individuals act with a common intention and perpetuate a criminal act, then each of the persons shall be held liable for the actions of others as if they were committed by them individually. The provisions focus on the common intent of the individuals.
The case underscores the difference between Sections 34 and 149 of the IPC. While the former focuses on the notion of shared intention, the latter pertains to liability incurred by members of an unlawful assembly for offences committed, irrespective of the absence of common intention between them. The major distinction is of intent and object. While the object may be similar of the persons involved in an unlawful assembly, the intent may differ. Section 149 focuses on the importance of membership in the unlawful assembly at the time of the offence rather than the existence of a common intention.
The judgement also delves into the procedural aspects of charging and conviction, asserting that a person charged under Section 149 cannot be convicted of the substantive offence without a specific charge of such offence framed against him. In its discourse on these provisions, the court underscores and highlights the importance of ensuring a fair trial for the accused. It is also clarified that a charge under Section 302 read with Section 149 IPC indicated that the court was not levying murder charges against the appellant. Hence, there is a need for clarity and adherence to procedural fairness in criminal proceedings to safeguard the rights of the accused and not take any decision in haste.
Recent cases referring to Nanak Chand vs. State of Punjab
In the case of State of Gujarat vs. Bilal Ismail Abdul Majid Sujela (2017), Nanak Chand vs. State of Punjab was referred to and discussed by the Hon’ble Gujarat High Court. The jurisprudence on Sections 34 and 149 of the IPC explained in the case of Nanak Chand vs. State of Punjab is the true position. The distinction between common intention and object needs to be considered primarily before deciding the liability of the accused.
In Chainsukhlal Punamchand Meher vs. The State of Maharashtra (1968), the Hon’ble High Court of Bombay relied on Nanak Chand vs. State of Punjab and held that, in a case falling under the provisions of Section 236 and 237 of the CrPC, it is allowed for a Criminal Court to alter the conviction from an offence having lesser gravity to an offence of greater gravity. Given that prejudice is not caused by the accused.
Conclusion
The case of Nanak Chand vs. State of Punjab (1955) stands as a significant precedent, throwing light on the distinctions between the legal provisions of Sections 34 and 149 of the Indian Penal Code. After the judgement of Barendra Kumar Ghose vs. King Emperor (1925), this became the next leading case dealing with Sections 34 and 149 of the IPC. The case also clarified the application of the said provisions in criminal proceedings. The judgement underscores the fundamental principles of criminal liability while emphasising the need to establish common intention in cases governed by Section 34. The case also elucidated the broader scope of liability imposed on members of an unlawful assembly under Section 149.
Common intention is different from common objective and for the application of both provisions, different elements are required. The judgement clarifies the intricacies surrounding these provisions while also reaffirming the importance of procedural fairness and adherence to the principles of natural justice in criminal trials. There is a necessity of framing specific charges for substantive offences and obligations to ensure clarity. The Court has safeguarded the rights of the accused and upheld the integrity of the judicial system.
Frequently Asked Questions
What is a Common Intention?
A common intention is a shared purpose and design amongst all the accused individuals of a group. A common intention does not require a time gap and it can be formed even one minute before an incident. It also does not require prior agreement. In simpler terms, there must be a meeting of mind and unity and there must be an obvious act that must be performed in the progression of the common intention of all.
What is an Unlawful Assembly?
An unlawful assembly is a gathering of three or more people with the intention of disturbing public peace. The participants must share a common illegal purpose, such as committing a criminal act, terrorising the public, etc. Section 141 of IPC defines an unlawful assembly and Section 149 provides for punishment of offences committed by such unlawful assembly.
What is the difference between intention and object?
The key difference between a common intention and a common object is that a common intention requires a prior agreement or understanding between the individuals, while a common object can occur during the course of the crime. In Criminal Law, intention has a significant place. Section 34 of the IPC provides for the liability of several persons for offences committed in furtherance of a common intention. However, Section 34 does not specify any offence, as determined by the Court in Nanak Chand vs. State of Punjab (1955).
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This article, written by Sakshi Kuthari. It delves into the landmark case of E.P. Royappa v. State of Tamil Nadu & Anr (1973), a pivotal legal precedent in Indian constitutional law. It examines the factual background, issues raised, judgement, and the intricate legal aspects involved in this case.
Table of Contents
Introduction
With the passage of time and through various judicial pronouncements, it has been firmly established that every action taken by the State must strive to avoid the perils of arbitrariness. This principle is enshrined in Article 14 of the Indian Constitution and is essential to the rule of law, which governs our justice system. Arbitrariness is the anti-thesis rule of law. For the purpose of determining the legitimacy of State actions, it is necessary that this criterion of Rule of Law is followed. The concept and essence of arbitrariness are easier to grasp visually than to precisely articulate or define. Ultimately, determining whether an action is arbitrary hinges on the peculiarities of each case. An easy assessment involves examining whether there is a clear principle guiding the action and, if so, whether it meets the criterion of reasonableness. If a procedure is outlined for carrying out an action and there are no hindrances to adhering to the procedure, deviating from it and performing the act in a manner that lacks any discernible reasonable principle may itself be considered arbitrary.
In the case of E.P. Royappa v. State of Tamil Nadu (1973), it is emphasised that every action undertaken by the State, including any policy changes, must be well-informed, equitable and free from any form of arbitrariness.
A.N. Ray (Chief Justice). Justice D.G. Palekar, Justice Y.V. Chandrachud, Justice P.N. Bhagwati, and Justice V.R. Krishna Iyer
Petitioner
E. P. Royappa
Respondents
State of Tamil Nadu
Judgement Date
23 November, 1973
Facts of E.P. Royappa vs. State of Tamil Nadu & Another (1973)
The petitioner, a member of the Indian Administrative Service within the State of Tamil Nadu, filed a writ of mandamus under Article 32 of the Indian Constitution. On 13 November, 1969, he was selected for the vacant post of Chief Secretary to the Government. The initial draft of his appointment order stated that he would replace C.A. Ramakrishnan, who was set to retire on 14th November, 1969, but he had been denied leave. An official Order, authenticated in the name of the Governor, was issued on the same day.
Subsequently, on 14th January 1970, following the recommendation of the State Government, the positions of the Chief Secretary and the First Member of the Board of Revenue were considered equivalent and exchangeable. A notification from the Central Government stated that the salary of the First Member of the Board of Revenue would be equivalent with that of the Chief Secretary. Then, on 31 August, 1970, another notification was issued by the Central Government, which enhanced the pay, rank, and status of the Chief Secretary to that of the Secretary to the Government of India, elevating the position of the Chief Secretary above all other state cadre posts, including that of the First Member of the Board of Revenue.
Thereafter, on 7th April, 1971, the petitioner was appointed as the Deputy Chairman of the State Planning Commission for a period of one year in the rank of Chief Secretary to the Government. However, the petitioner refused to join this post. Rather, he went on a leave from 13 April, 1971 to 5 June, 1972. After returning from leave, the petitioner found out that the post of Deputy Chairman of the State Planning Commission had been created again for another year at the Chief Secretary’s grade. He did not accept this position, asserting that the post of Deputy Chairman ceased to exist after 13 April, 1972.
By an Order dated 27 June, 1972, the Government of Tamil Nadu sanctioned the creation of a temporary post of Officer on Special Duty in the grade of Chief Secretary to Government for a period of one year from the date of appointment or until the need for it ceased, whichever was earlier. The petitioner was transferred by the same order and was appointed as an officer on special duty in the post sanctioned aforesaid. But again, he did not join this post and filed a petition in the month of July, 1972.
Issues raised
The following issues were raised in this petition:
Whether the petitioner’s appointment or transfer to a post not duly legally established, such as the post of officer on special duty, violates the second proviso to Rule 4(2) of the Indian Administrative Service (Cadre) Rules, 1954, which specifies that such posts cannot be considered equivalent to cadre posts with similar duties and responsibilities?
Whether the appointment of the petitioner to a position other than those listed in Schedule III, as per Rule 9(1) of the Indian Administrative Service (Pay) Rules, 1954, is permissible only if the relevant State Government or the Central Government declares that the said position is comparable in status and responsibility to one specified in the aforementioned Schedule?
Whether the petitioner’s appointment to a post subordinate in both rank and office to that of the Chief Secretary constitutes comprehensive discrimination, violating both Articles 14 and 16 of the Indian Constitution?
Whether the creation of the post, along with the petitioner’s appointment and transfer to it, is done with mala fide intention?
Arguments of the parties
Petitioner
The petitioner contended the following:
The transfer of the petitioner is contrary to the Second proviso to Rule 4(2) of the Indian Administrative Service (Cadre) Rules, 1954 & Rule 9(1) of the Indian Administrative Services (Pay) Rules, 1954;
The transfer was violative of Articles 14 and 16 of the Indian Constitution, as the posts of Deputy Chairman, State Planning Commission and officer on special duty were inferior in rank and status to those of Chief Secretary; and
The respondent acted in mala fide exercise of power, not on account of exigencies of administration or public service, but because the second respondent (Chief Minister of Tamil Nadu) was annoyed with the petitioner on account of various incidents referred to in the petition and wanted him out of the way.
Respondent
Following were the respondent’s contentions:
The petitioner was appointed in an officiating capacity to the post of Chief Secretary and reliance was placed on Fundamental Rule 9(19). Under that Rule, a Government servant officiates in a post when he perform the duties of a post on which another person holds a lien or the Government may, if it thinks fit, appoint a Government servant to officiate in a vacant post on which no other Government servant holds a lien; and
The respondents contended that no action has been taken by respondent number 2 under haste and with malafide intention; hence, the argument of petitioner is baseless.
Involved legal aspects
The doctrine of non-arbitrariness was discussed in this case. The scope of Article 14 was drastically increased in the present case by the Hon’ble Supreme Court by including executive discretion under its ambit. The Court had said that Article 14 provides a guarantee against the arbitrary action of the State. The right to equality is an antonym to arbitrariness. So it is necessary to protect the laws from the arbitrary actions of the executive organ of the government. The test of reasonable classification with the doctrine of anti arbitrariness was the most ideal approach to determining whether the State activity was against Article 14 or not.
The genesis of the “test of reasonable classification” is found under Article 14 of the Indian Constitution. The State has the power to legislate laws differently for different classes of people so that the Rule of Law and the principle of equality prevails. This Article permits “reasonable classification” but not “class legislation”.
Issue-wise judgement in the case
Whether the petitioner’s appointment or transfer to a post not duly legally established, such as the post of officer on special duty, violates the second proviso to Rule 4(2) of the Indian Administrative Service (Cadre) Rules, 1954, which specifies that such posts cannot be considered equivalent to cadre posts with similar duties and responsibilities ?
The application of the second proviso to Rule 4(2) of the Indian Administrative Service Cadre (Rules), 1954, is deemed irrelevant in this context. This rule primarily confers upon the State Government, the limited authority to temporarily augment the cadre for a duration not exceeding that stipulated within the proviso itself. The determination of the cadre’s strength and composition falls solely within the purview of the Central Government under Rule (1), with the Central Government retaining the power to review it at three-year intervals or at any time in between, as per Rule 4(2). The State Government is not authorised to introduce a distinct category of post within the cadre nor can it make permanent additions to the cadre through the relaxation provided in the second proviso to Rule 4(2). Such actions would either modify the composition or the strength of the cadre, both of which exceed the jurisdiction of the State Government.
Under the second proviso, the State Government is permitted to make temporary additions, provided the added posts entail duties or responsibilities akin to those of an existing cadre post. The Government of India, as per the All India Services Manual, clarified that the exercise of this power by the State Government concerning a post necessitates an impartial assessment of the associated duties or responsibilities compared to those of a cadre post. Temporary posts cannot be incorporated into the cadre unless they are already part of it. Thus, the State of Tamil Nadu cannot include the positions of Deputy Chairman, State Planning Commission, and Officer on Special Duty under the second proviso of Rule 4(2) since these were newly created categories of posts created by the State Government, rendering the second proviso inapplicable. Any challenge based on this proviso is unlikely to succeed.
Whether the appointment of the petitioner to a position other than those listed in Schedule III, as per Rule 9(1) of the Indian Administrative Service (Pay) Rules, 1954, is permissible only if the relevant State Government or the Central Government declared that the said position is comparable in status and responsibility to one specified in the aforementioned Schedule?
Rule 9(1) of the Indian Administrative Services (Pay) Rules, 1954 mandates an official declaration of equivalence between a non-cadre post and a cadre post, which is a prerequisite for appointing a member of the Indian Administrative Service to a non-cadre post. The Government is required to meticulously evaluate the nature and responsibilities associated with the non-cadre post to establish its similarity . If it appears to the court that this declaration of equivalence is made without due consideration of the actual responsibilities and nature of the non-cadre post, or if external factors influenced the decision, or if the roles are so dissimilar that no reasonable person could deem them equivalent, the court has the authority to nullify the declaration and safeguard the civil servant.
The order dated 7th April, 1971, which sanctioned the creation of the temporary post of Deputy Chairman and appointed the petitioner this role, lacked evidence of the State Government conducting an objective assessment of the post’s responsibilities to determine its equivalence to that of the Chief Secretary. Additionally, the Deputy Chairman’s role could not be considered equivalent to that of the Chief Secretary in one instance and to that of the First Member Board of Revenue at another, as the responsibilities and nature of the roles remain consistent. This suggests that the government did not conduct an objective assessment but merely adjusted the grade based on the appointee. However, the petitioner is now precluded from contesting the validity of this appointment since he had previously accepted it, believing it to be equivalent in rank and remuneration to that of the Chief Secretary.
Similarly, the order dated 27th June, 1972, concerning the appointment of an Officer on Special Duty, did not involve an objective assessment of equivalence by the State Government but was influenced by the status of the appointee. This non-compliance with Rule 9(1) implies that although the procedural requirement was not fulfilled, the petitioner cannot seek relief under Article 32 since the mere violation of Rule 9(1) does not constitute an infringement of any fundamental right.
Whether the petitioner’s appointment to a post subordinate in both rank and office to that of the Chief Secretary constitutes comprehensive discrimination, violating both Articles 14 and 16 of the Indian Constitution?
Article 16 is pivotal in ensuring equality of opportunity for all citizens in matters of employment or appointments to any state office. It stands as a distinct fundamental right because of its critical role in fostering equal opportunities in public employment, which is integral to the vision of building an egalitarian society as envisaged in the Indian Constitution. Essentially, Article 16 represents a specific application of the broader principle of equality encapsulated in Article 14. While Article 14 serves as the overarching principle, Article 16 functions as a particular manifestation of this principle, specifically focusing on public employment. Both articles are firmly rooted in the principles of equality and non-discrimination.
The petitioner’s transfer from the post of Chief Secretary to Deputy Chairman, and subsequently to Officer on Special Duty, along with the promotion and permanent appointment of a junior to the Chief Secretary’s post, was deemed arbitrary and a violation of both Articles 14 and 16. The argument hinges on the assumption that the roles of the Deputy Chairman and Officer on Special Duty do not carry the same status and responsibilities as those of the Chief Secretary. However, the evidence does not conclusively establish this presumption. Regarding the Deputy Chairman’s role, the petitioner himself acknowledged its equivalence in status and responsibility to that of the Chief Secretary. Although it may appear that the Officer on Special Duty role does not parallel the Chief Secretary in terms of both status and opportunity, the available evidence does not definitively prove any disparity in status and responsibility. Therefore, the challenge under Articles 14 and 16 must be dismissed based on the current available record.
Whether the creation of the post, along with the petitioner’s appointment and transfer to it, is done with mala fide intention?
The onus of proving malicious intent is considerable for the individual making the allegation. The petitioner did not meet the burden of proving malicious intent against the Chief Minister. The court would be cautious while drawing questionable conclusions from incomplete information presented by one party, especially when serious allegations are made against a person who holds an office with important responsibilities in the administration.
Ratio of the judgement
With a unanimous decision of the five-judges, the Bench without any dissenting opinion, dismissed the petition. Each judge offered different clarifications and observations, which are as follows:
Justices Bhagwati, Chandrachud, and Krishna Iyer laid stress on the verified order, which stated that the petitioner’s promotion to Chief Secretary was only temporary. Chief Justice Ray and Justice Palekar emphasised the previous Chief Secretary’s retention of lien until retirement, which prevented the substantive filling of the position They also emphasised that the State of Tamil Nadu did not have the power to establish new positions such as Deputy Chairman, State Planning Commission, and Officer on Special Duty into the Cadre. Chief Justice Ray was of the opinion that this alteration infringed the Rules of the Cadre.
Justice Bhagwati paid attention to the inconsistencies in the ranking for Deputy Chairman and Officer on Special Duty. He drew attention to the fact that the petitioner’s favourable acceptance of those positions made it impossible to challenge their validity. Moreover, he also stated that the Rule 9(1) violation did not in any way amount to fundamental rights violation.
There was a dismissal of the argument by Justice Bhagwati on the arbitrary transfers and promotions because of lack of evidence. He also deemed the allegations of the petitioner of malicious intent against the Chief Minister as groundless.
The allegations against the Chief Minister were dismissed by the Court due to insufficient evidence.
Rationale behind the judgement
The basic principle behind both Articles 14 and 16 is equality and inhibition of discrimination. Equality should never be subjected to a narrow approach. With the traditional limits, the concept of equality should not be cribbed, cabined or confined. Equality has a dynamic approach and is antithetic to arbitrariness. Whenever the State takes any arbitrary action, it is implied that it is unequal both politically and constitutionally and is violative of Article 14. If the arbitrary State action relates to any matter relating to public employment, it is violative of both Articles 14 and 16.
Relevant judgments with respect to this case
Maneka Gandhi v. Union of India (1978)
In this case, the Hon’ble Supreme Court determined that the concept of equality is dynamic, encompassing numerous aspects and dimensions, and cannot be confined within traditional or doctrinal boundaries. Article 14 invalidates arbitrariness in State actions, thereby ensuring fairness and equal treatment. Legally and philosophically, the principle of reasonableness is a fundamental element of both equality and non-arbitrariness.
R.D. Shetty v. the International Airport Authority of India (1979)
In this case, Justice Bhagwati reiterated the principle established in the previously mentioned case emphasising that Article 14 strikes arbitrariness as any arbitrary action inherently undermines the principle of equality. The court adhered to the doctrine of classification, which is neither a restatement of Article 14 nor its sole objective. Instead, it serves as a judicial framework for determining whether the legislative or executive action under consideration is arbitrary and violates the principle of equality. If an unreasonable classification fails to meet the two aforementioned conditions, the challenged law or executive action would unequivocally be deemed arbitrary, resulting in a complete breach of the guarantee of equality under Article 14.
Bachan Singh v. State of Punjab (1980)
In this case, the Hon’ble Supreme Court ruled that the rule of law, which forms the essence of the Indian Constitution, precludes arbitrariness. Any instance of arbitrariness or unreasonableness constitutes a violation of the rule of law. Article 14 principally establishes a safeguard against arbitrariness and restrains state actions, whether legislative or executive, that exhibit signs of arbitrariness. Every action taken by the State must adhere to the principles of non-arbitrariness and reasonableness. Failure to do so empowers the court to invalidate such actions.
D.S. Nakara v. Union of India (1983)
In this case, it was held that the fundamental right enshrined under Article 14 prohibits class legislation but allows reasonable classification for the purpose of legislation. This classification must satisfy two criteria: first, it must be based on an intelligible differentia, distinguishing individuals or entities grouped together from those excluded from the group; and second, the differentia must have a rational connection to the objective intended to be achieved by the statute in question.
A.L. Kalra v. P & E Corporation of India, Limited (1984)
The Hon’ble Supreme Court noted in thiscase that Article 14 of the Indian Constitution strikes arbitrariness in executive or administrative actions because any action deemed arbitrary inherently undermines the principle of equality. An action deemed arbitrary by its very nature negates equality under the law.
A.P. Aggarwal v. Government of NCT of Delhi (2000)
In thiscase, it was held that there is a complete prohibition of arbitrary administrative action under Article 14 of the Indian Constitution. Whenever there is a presence of arbitrariness in any state action, Article 14 comes into picture. It prompts and compels the courts to invalidate such actions of the State that constitute a violation of Article 14.
Analysis of the judgement
The scope of ‘equality’ under Article 14 of the Indian Constitution was expanded with the help of the present case. The Court imposed limitations on the discretionary powers of the executive as well as on the administrative authorities. It ruled that administrative authorities, while exercising their discretion, must act reasonably, non-arbitrarily, and in a non-discriminatory manner. This judgement had an important implication for limiting the misuse of administrative discretion and introducing the rule of reason and non-arbitrariness in State actions.
Conclusion
A thorough examination of Article 14 is done with the help of the present case. Article 14 inhibits two substantial points. They are the requirements for an intelligible differentia and a reasonable nexus. These two tests incorporate both a moral principle and the principle of rationality. For the purpose of upholding the principle of equality, the evaluation of non-arbitrariness is determined by the constraints on the factors that influence the classification. However, when it comes to the implementation of the regulations within a specific category, a brief review is allowed, as the individuals themselves have the complete right to legal protection based on the concept of rationality.
Frequently Asked Questions (FAQs)
What is the fundamental principle embodied in Article 14 of the Indian Constitution ?
The fundamental aim of Article 14 is to ensure that all individuals subject to similar circumstances are treated with equality, both in the privileges granted and the liabilities imposed. Classification should not be arbitrary but rather rational, meaning it should be based not only on certain qualities or characteristics shared by all individuals grouped together, excluding others, but also on those qualities and characteristics having a reasonable connection to the legislative objective.
What is the essence of Article 14 of the Indian Constitution?
The essence of the right to equality encompasses both equality before the law and equal protection of the law. It emphasises that individuals who are equal should not be treated unequally, and valid classification is necessary to avoid arbitrary denial of rights to equals. Essentially, it signifies that similar individuals should be treated similarly and dissimilar individuals should be treated differently.
What essentials are taken into account when determining the appropriateness of valid classification?
For the purpose of determining whether a classification is appropriate and reasonable, the following two criteria must be satisfied:
Firstly, the essence of arbitrariness, evasiveness or falsity should not be present. Rather, it should be founded on an intelligible differentia that is both bonafide and meaningful in application. The distinction should be such that it sets apart individuals or entities grouped together from those excluded from the group;
The differentia must have a rational or reasonable connection with the classification and the objective sought to be achieved by the statute under consideration.
What elements incorporate a legitimate basis for classification?
The term “differentia” is the legitimate basis for classification. It must be done in such a way that it turns out to be robust and holds a reasonable correlation with the object of the legislation sought to be achieved. But if the purpose for which the classification is done is discriminatory in nature, an argument could be made that the classification done is unreasonable and does not have a rational connection to the intended objective.
Is it necessary that every state action must be done in public interest?
Every action of the State must be informed by reasons and guided only by the public interest. Actions uninformed by reasons may be questioned as arbitrary. Whenever there is arbitrariness in state action, Article 14 springs to life and judicial review strikes down such action. Arbitrariness is the antithesis of Article 14. Equality and arbitrariness are sworn enemies. Article 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment.
Why is ‘equality before law’ described as a negative concept?
It is considered a negative concept because it ensures no individual receives special privileges; instead, everyone is equally subject to the ordinary law of the land, without exception based on his rank or status. This principle describes the second principle of Dicey’s concept of the Rule of Law, which emanates from Britain. However, it is not a universal rule, as there are several exceptions to it. For example, diplomats in foreign nation states are granted immunity from the judicial process of the host country or immunity is provided to the President of India and the Governors of the States under Article 361 of the Indian Constitution or even various protections are also provided to public officials and judges and enjoyed by them, and certain special groups and interests, such as trade unions, are granted special privileges under the law.
Why is ‘equal protection of laws’ a positive concept?
‘Equal protection of laws’ is positive in content. It does not mean that identically, the same law should apply to all persons or that every law must have a universal application within a country irrespective of differences of circumstances. Equal protection of the laws does not postulate equal treatment of all persons without distinction. What it postulates is the application of the same laws, alike and without discrimination, to all persons similarly situated. It denotes equality of treatment in equal circumstances. It implies that among equals, the law should be equal and equality administered, and that the like should be treated alike without distinction of race, religion, wealth, social status or political influence.
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This article is written by Subhangee Biswas. The article discusses the judgement of Bipinchandra Jaisinghbhai Shah v. Prabhawati (1957) in the background of matrimonial law, in particular, divorce based on desertion. Stating the facts and background of the case, the article proceeds to cover the issues raised and the contentions presented by the parties, along with explaining the legal aspects related to the case. Finally, the article concludes with the verdict of the Supreme Court, adding a conclusion to the entire judgement.
Table of Contents
Introduction
Marriage is considered to be sacrosanct in India. With time, divorce also came to be accepted in society. Presently, all legal systems provide the right to claim divorce on certain grounds. Divorce in India is a lengthy and time-consuming procedure because the judiciary always endeavours to save the marriage. It is only when the marriage has irretrievably broken down or strong grounds have been proved that render the subsistence of the marriage impossible that the court grants divorce to the parties.
Desertion is a ground for divorce under all matrimonial laws. The Hindu Marriage Act, 1955, recognizes desertion as a ground for divorce under Section 13(1). Desertion, in simple terms, means abandonment. We will understand the term in detail in the later part of the article.
If a person deserts their spouse, without any reason and without the consent of the other, for a substantially long period of time, then the deserted spouse can claim divorce on that ground, provided that they can prove a valid desertion on the part of the other spouse under law.
The present case of Bipinchandra Jaisinghbhai Shah v. Prabhawati (1957) is a landmark case in Indian family and matrimonial law. The case essentially deals with the concept of desertion. In this case, the plaintiff had claimed divorce on the ground of desertion on the part of his wife, but he failed to prove the existence of the essential ingredients of desertion, in particular, the intention to desert, also known as animus revertendi. As a result, the Supreme Court dismissed the case and denied divorce to the plaintiff.
This case provided an example of the fact that if a spouse leaves the matrimonial house with an intention to desert or abandon but later wishes or displays a desire to come back, they will not be held guilty of desertion if they are prevented from returning by the other spouse. Let us discuss the case in detail.
Details of the case
Name of the case: Bipinchandra Jaisinghbhai Shah v. Prabhawati.
Case number: Civil Appeal No. 247 of 1953.
Equivalent Citations: 1957 AIR 176, 1956 SCR 838.
Laws and Statutes involved: Section 3(1)(d) of the Bombay Hindu Divorce Act, 1947.
Court: Supreme Court.
Bench: Justice Bhuvneshwar P. Sinha, Justice B. Jagannadhadas, and Justice T.L. Venkatarama Aiyyar.
Plaintiff: Bipin Chander Jaisinghbhai Shah.
Defendant: Prabhawati.
Judgement date: 19.10.1956.
Final decision: The appeal was dismissed.
Facts of Bipinchandra Jaisinghbhai Shah vs. Prabhawati (1957)
The plaintiff and the defendant were married as per the Hindu rites of the Jain community on 20th April 1942. Both the parties and their families belong to Patan, a town in Gujarat. The parties lived in Bombay with the plaintiff’s family, which consisted of his parents and two sisters. The defendant’s parents lived in the east Khandesh district of Bombay. The parties had a child out of their marriage named Kirit, who was born on 10th September 1945. A third party named Mahendra, who was a family friend, came and started living with the plaintiff’s family in the Bombay residence in 1946 after he was discharged from the army. The plaintiff left for England on business on 8th January 1947.
The plaintiff alleged that when he was absent from Bombay, his wife, that is, the defendant, became intimate with Mahendra. When the defendant visited Patan after the departure of the plaintiff, she still kept in touch with Mahendra, who continued to stay in Bombay with the plaintiff’s family.
The plaintiff returned to Bombay on 20th May 1947. His whole family, including the defendant, had gone to receive him. Upon his arrival, the plaintiff’s father handed a letter to the plaintiff, which was in handwriting similar to that of the defendant. This letter was written by the defendant to Mahendra in April 1947, when she was staying with her mother-in-law in the plaintiff’s house in Patan.
The plaintiff decided to confront his wife. He handed the letter to a photographer to get photocopies of it. The same day, in the evening, he confronted his wife regarding the letter, which she denied at first. He informed her about the photocopies being made. After receiving the photocopies, he showed a photocopy of the letter to his wife. The plaintiff alleged that, at this point, the wife, that is, the defendant, admitted having written the letter. She further claimed that Mahendra was a better man and that they loved each other.
On the morning of 24th May 1947, while the plaintiff was on his way to the office, the defendant informed him that she was to go to Jalgaon on the pretext that there was a marriage to take place in her father’s family. The plaintiff offered to send her a car and also offered to pay for her expenses, but she refused.
The defendant left for Jalgaon when the plaintiff was at his office. The plaintiff claims that when he came back, he discovered that the defendant had taken everything with her and left nothing behind. The plaintiff’s son, Kirit, was taken with the plaintiff’s mother to Patan a few days ago. The plaintiff alleges that the defendant never returned to him, contacted him, or sent him any letters from Jalgaon. Meanwhile, the plaintiff sent a letter via his advocate on 15th July 1947, addressed to the defendant, charging her for the intimacy that had developed between her and Mahendra and demanding to send their child back.
The plaintiff’s mother came back in November 1947 from Patan and informed the plaintiff that the defendant might come back in a few days. The plaintiff proceeded to send a telegram in November 1947 to his father-in-law, asking him not to send the defendant back.
The plaintiff produced a letter that he alleged to have written to his in-laws on 13th November 1947. The plaintiff, via the letter, had stated the present situation and also his efforts to reconcile for the sake of their child. He also mentioned that he does not object to the return of the defendant and that he is ready to personally bring her back in case she realises her mistake and repents of it. However, both the defendant and her father denied receiving such a letter.
Two days later, the plaintiff’s father addressed a letter to the defendant’s father stating that the mothers of both parties had a conversation about sending the defendant back to Bombay, along with mentioning the fact that the plaintiff had sent a telegram on 13th November. It was further mentioned that it was “absolutely necessary” to get the consent of the plaintiff before the defendant was sent back to Bombay. However, this letter was also unanswered.
The plaintiff filed a complaint on 4th July 1951, before the Bombay High Court on the ground that the defendant had deserted him since 24th May 1947, without reasonable cause, without his consent, and against his will, for over four years. He prayed for a decree for the dissolution of the marriage and also demanded the custody of their minor child.
Issue raised before the Supreme Court
Whether the defendant deserted the plaintiff for a continuous period of over four years prior to the filing of the suit?
Contention presented by the parties
Plaintiff
The plaintiff submitted that, considering the fact that the defendant left her matrimonial home without any reasonable cause or the plaintiff’s consent on 24th May 1947, and did not return to her marital house for over a period of four years following that, she is guilty of desertion.
The plaintiff contended to have approached the defendant to return, to which the defendant refused. In May 1948, he went to Patan and met the defendant there. He told her that if she repented her actions in the interests of their child and themselves, she could return to him and live together again. To this, the defendant had allegedly replied that, due to the pressure from her father and the community, she considered going back but then decided not to do so.
The plaintiff further argued that they met for the second time in Patan in the latter half of 1948 when the plaintiff went to visit the defendant, knowing that she was down with typhoid. During this time as well, she expressed her desire not to return to the plaintiff.
The plaintiff argued that they met for the third and last time at Jalgaon in April-May of 1949, where the defendant again rejected the plaintiff’s request when he asked her to come back, at least for the sake of their child.
Defendant
The case of the defendant can be summarised by the following points:
The defendant, in the written statement filed on 4th February, 1952, contended that she was forced to leave her marital house against her wishes due to the treatment meted out by the plaintiff after he returned from England, which made her life unbearable. She further stated that she did not wish to leave the matrimonial house, nor did she intend to desert her spouse.
The defendant denied the existence of any intimacy between her and Mahendra; rather, she claimed to have a sibling bond with Mahendra. She further denied the occurrence of any confrontation about the letter by the plaintiff.
The defendant admitted receiving the attorney’s letter and also the fact that she did not reply on the advice of her father.
The defendant added that her paternal uncle and his son had visited the plaintiff in Bombay to request him to take the defendant back, which the plaintiff rejected.
The defendant added that she had agreed to return to Bombay with the plaintiff’s mother or after a few days of her return to Bombay. But she changed her mind due to the telegram sent by the plaintiff in November 1947 and the letter from the plaintiff’s father dated 15th November 1947. However, both the defendant and her father denied receiving the letter from the plaintiff dated 13th November, 1947.
The defendant stated that she was always ready and willing to return, but the plaintiff had been continuously refusing to accept her back or to cohabit with her. She added that the three meetings that took place between her and the plaintiff were because the plaintiff wanted to take away the child and was not to take her back home.
The defendant contended that she and her son Kirit stayed with the plaintiff’s family at Patan for over four months, with occasional breaks in between.
Background of Bipinchandra Jaisinghbhai Shah vs. Prabhawati (1957)
Trial before Single Judge Bench in Bombay High Court
The Trial Court answered this issue in the affirmative and granted a decree of divorce in favour of the plaintiff.
The Trial Court observed that the letter from the defendant addressed to Mahendra did come across as a love letter. The court interpreted the letter and concluded that the defendant might have misbehaved with Mahendra and felt guilty afterwards.
Regarding the testimony of the parties in the witness box, reliance was placed on the plaintiff’s testimony. The Court, thus, held that there was desertion in the presence of animus deserendi, which means the firm intention of a spouse to leave the marital home and the marriage. The defendant failed to prove her intention to return to her matrimonial home; thus, it was observed that there was no animus revertendi, which means the intention to relocate. However, the prayer that the custody of the child be given to the plaintiff was not considered by the Trial Court.
Appeal under Division Bench in Bombay High Court
The defendant filed an appeal, which was heard by a Division Bench composed of Justice C.J. Chagla and Justice Bhagwati. The Division Bench had allowed the appeal, and the judgement of the Trial Court was set aside.
It was held that the defendant was not guilty of desertion, and it was the plaintiff who had deserted the defendant. The same is corroborated by the letter of attorney from the plaintiff’s side dated 15th July 1947.
The Appellate Court also stated that even if it is assumed that the defendant was in desertion as a result of the incident that happened on 24th May, but the letter from the plaintiff dated 15th July 1947, via his solicitor had the effect of ending such desertion.
The letter by the defendant addressed to Mahendra was not proof enough to justify any reasonable suspicion that the plaintiff may have had for his wife’s guilt. Moreover, the oral evidence of the defendant proved that the wife was willing to return to her husband, but the husband was adamant about not taking her back.
Leave to appeal to the High Court
The plaintiff filed an application at the High Court of Bombay. The application for leave to appeal by the plaintiff was refused by the Division Bench, composed of the Chief Justice and Justice Dixit. This led to the plaintiff approaching the Supreme Court.
Judgement
The Supreme Court upheld the decision of the Division Bench of the Bombay High Court. It held that the defendant was not guilty of desertion and that the plaintiff had failed to prove his case of desertion against the defendant. Since there was no case of desertion, the court refused to go into the examination of the existence of “intention” and dismissed the appeal filed by the plaintiff.
The Supreme Court had pointed out the increased difficulty in deciding this case due to the opposite views taken by the two courts before. Both decisions depended heavily on the oral testimony of the plaintiff and the defendant, and in many situations, the testimonies were not corroborated.
Guilty intention of the defendant in writing the letter
The defendant had admitted writing the letter to Mahendra during the cross-examination. It was further stated by the defendant that she considered Mahendra as a brother and not a lover. However, the defendant failed to provide justifications for her usage of certain phrases like “such an affair” and “I very much repented later on in my mind.” Further, she admitted that, while writing the letter, she made sure that no one noticed her writing the same. She failed to provide answers regarding the letter as to the meaning of the words she used.
Again, the defendant also admitted to receiving at least one letter from Mahendra. Though it was suspected she received more letters as well, she stated preserving none.
The Apex Court inferred from the lack of proper explanation that anyone who read the letter would be under the impression that there was something between the defendant and Mahendra that she wanted to keep a secret. The Court upheld the Trial Court’s decision to discredit the defendant’s testimony regarding the letter. The Apex Court agreed that the letter did prove a correspondence between the defendant and Mahendra and rejected her explanations.
The Supreme Court supported the reaction of the plaintiff and regarded his actions as correct, considering that his doubt was natural and so was his confrontation. It was accepted that the letter made the plaintiff question his wife, and that led to the plaintiff enquiring about the same, and in reply, his wife confessed that she loved Mahendra and considered him to be a better man than the plaintiff.
The court further held that the defendant was guilty in regard to the letter, and the same is proved by the fact that initially she denied writing the letter. On the other hand, the plaintiff provided a photocopy of the letter as evidence, and it was then that the defendant admitted writing the letter.
However, the Supreme Court did not agree with the Trial Court on considering a sole interpretation of the contents of the letter, which is that the defendant felt guilty after misbehaving with Mahendra in the plaintiff’s absence. The Court pointed out that the fact that a married woman wrote such letters to another man is reasonable enough for the husband to doubt the wife’s infidelity. The court held that the plaintiff was justified in his actions.
Then, the Supreme Court proceeded to examine the observations of the Appellate Court. The court did not agree with the Appellate Court in considering the letter as evidence of “platonic love” between two married persons who are restrained by their marital obligations and thus chose to only show love and devotion for each other. The Court also disagreed with the Appellate Court on their criticism of the plaintiff’s side for asking questions that suggested the defendant had intercourse with Mahendra. The Supreme Court accepted that the case was not regarding adultery and that even the Act did not recognise adultery as a ground for divorce. However, asking such questions in the cross-examination was justified as the plaintiff was trying to prove that the discovery of the letter containing such statements was the reason why the defendant decided to desert the plaintiff.
Failure of the plaintiff to prove desertion on the part of the defendant
The Court accepted that in this background, the natural reaction of the defendant would have been to escape, given the fact that her love letter had been discovered by her husband. Though the defendant had pleaded for “constructive desertion” on the part of the plaintiff, the same was not proved as she failed to provide reliable evidence to support her contention. This contention of hers was corroborated neither by the circumstances nor by her direct testimony. Even her father and other family members had not mentioned her, stating that the plaintiff had forced her out of the house when she arrived at Jalgaon. The Supreme Court had referred to the case of Lang v. Lang (1955) and stated that the plaintiff-husband would have been guilty of “constructive desertion” if the defendant was forcibly turned out of the house by the plaintiff. Thus, the allegation of “constructive desertion” by the defendant failed. But that does not infer that the plaintiff succeeded in proving beyond reasonable doubt the desertion by a defendant for a continuous period of four years.
It has been highlighted that the plaintiff had sent a letter via his attorney in the name of the defendant, which in no way showed the plaintiff’s inclination to invite the defendant back to the matrimonial house. One of the essential conditions that the deserted spouse must be willing to fulfil their part of the matrimonial duties was not fulfilled by the plaintiff. In the letter, it was clear from the plaintiff’s side that he was not ready to take the defendant back to the matrimonial home.
The court recalled the incident when the plaintiff’s mother returned from Patan and informed the arrival of the defendant. Hearing that, the plaintiff sent a telegram, and his father also sent a letter, both of which conveyed their unwillingness to take her back. Both of these documents contradicted the testimony of the plaintiff, who said that he was ready and willing to take the defendant back. However, it was also pointed out that the statement of the plaintiff that he expects the defendant to show repentance and confess her mistake prior to his taking her back is reasonable in the given circumstances.
Then the Apex Court went to examine the three attempts made by the plaintiff to persuade the defendant to come back. Though the three visits were accepted by both parties, both have provided different versions of the purpose of the visit and the conversation that took place between them. Whereas the plaintiff stated that he had visited to bring her back, the defendant stated that the plaintiff had visited to take away their child.
At this point, it was considered necessary to take into account the evidence presented by the defendant’s cousin and her father. According to them, after receiving the letter from the plaintiff, they both visited the plaintiff in Bombay and requested him to take the defendant back but he expressed his desire to not take her back.
Another incident that was highlighted was that the defendant, along with her parents, had visited the plaintiff’s mother in Patan, and after discussion, they had come to a common ground as to make arrangements to send the defendant back to her matrimonial house in Bombay. But before taking any action regarding it, due to the telegram and the letter from the plaintiff’s side, the idea was given up.
The witnesses of the defendant’s relatives rightly corroborated her contention that she was always willing to go back and resume her matrimonial relationship with the plaintiff. Moreover, the fact that she did stay with the plaintiff’s family, especially with his mother in Patan along with the child, further proved her case.
It was also added that the defendant’s mother-in-law had advised the defendant to send her child back to Bombay so as to induce the plaintiff to let her come back. The child refused to stay without his mother after staying for a few weeks. The Court assured that the only reason a mother would allow her child of three years to go to Bombay alone would be in the hope that it might result in reconciliation between her and her husband. All such evidence led up to the conclusion that the defendant was all along ready and willing to return to her matrimonial home.
The witnesses provided by the defendant’s relatives were believed since it is natural for them to be in support of the reconciliation between the parties. The plaintiff’s evidence was uncorroborated; his testimony in court and the letters sent from him are contrary to each other.
Thus, the defendant’s case was accepted because she was ready and willing to come back to her matrimonial house after the completion of the functions that were taking place in her matrimonial house. It was held that even though it was the wife who had physically left the husband’s house, she was not in desertion. It was also accepted that the defendant had made numerous attempts to go back to her husband’s house. On the other hand, the plaintiff failed to prove the case of desertion by his wife.
Relevant laws discussed
The entire case revolves around desertion as a ground for divorce. As per the law prevalent during that time, which is the Bombay Hindu Divorce Act, 1947, the relevant section was Section 3(1)(d) of the Act. Let us first get into a little background on the Act, then we will proceed to discuss the concept of desertion in detail.
Bombay Hindu Divorce Act, 1947
It is pertinent to mention that the Bombay Hindu Divorce Act, 1947, is now repealed by the Hindu Marriage Act, 1955. But at the time this case came up before the Supreme Court, the Bombay Hindu Divorce Act, 1947, was in force. There are references to the provisions of the Act of 1947. This Act was operative only in the then province of Bombay and was the first step in changing the laws related to matrimonial relationships.
The Preamble of the Act stated that the Act was to “provide for a right of divorce among all communities of Hindus in certain circumstances.” Section 3 of the Act provides the grounds for divorce.
The case is mainly based on Section 3(1)(d) of the Bombay Hindu Divorce Act, 1947. Section 3(1)(d) includes the following grounds among the other grounds based on which a spouse may sue for divorce:
“that the defendant has deserted the plaintiff for a continuous period of four years.”
Unlike the Hindu Marriage Act, the period of desertion under this Act is four years, and it should be continuous. On the other hand, the Hindu Marriage Act, under Section 13, provides that desertion must be for a period of at least two years.
The Act also provides the definition of “desertion” for the purpose of divorce under Section 2(b), along with the definitions of “marriage”, “husband” and “wife” as follows:
Desertion: “‘Desert’ means to desert without reasonable cause and without the consent or against the will of the spouse.”
Marriage: “a marriage between Hindus, whether contracted before or after the coming into operation of this Act.”
Husband: Husband is meant to refer to a Hindu husband.
Wife: Wife is meant to refer to a Hindu wife.
Meaning of desertion
To understand the laws involved in this case, we need to understand the meaning of “desertion” and what the Supreme Court has mentioned in this case regarding the definition of “desertion.”
The Supreme Court, in this case, has referred to two books for the definition of desertion.
The first one is “Rayden on Divorce” (Page 128, 6th edition), where “desertion” has been defined as:
“the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.”
The following elements can be drawn from this definition:
Separation of one spouse from another,
The deserting party must possess the intention to end the cohabitation,
The ending of cohabitation is for a permanent period,
Such an intention must be without a reasonable cause,
The other spouse does not consent to the ending of cohabitation.
The other book referred to is Halsbury’s Laws of England (3rd edition, volume 12, page numbers 241 to 243, paragraphs 453 and 454), which defines “desertion” as
“In its essence, desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and modes of life involved, the Court has discouraged attempts at defining desertion; there being no general principle applicable to all cases.
Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ’the home’. There can be desertion without previous cohabitation by the parties or without the marriage having been consummated.
The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct that exists independently of its duration, but as a ground for divorce, it must exist for a period of at least three years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence of founding the cause of action of desertion is not complete but is inchoate until the suit is constituted. Desertion is a continuing offence.”
From this definition, the following elements can be drawn:
The abandonment must be intentional,
It must be permanent,
It must be without the consent of the other spouse,
It must be without any reasonable cause,
There is a total repudiation of the marital obligations,
Desertion is a withdrawal from a state of things,
To form a ground for divorce, the desertion must exist for at least three years immediately preceding the presentation of the petition for divorce,
Desertion is a continuing offence.
It is also mentioned in the definition that it is not necessary that the deserting party is the one who withdraws from cohabitation.
Now, if we have to conclude a simple definition of “desertion,” it would be sufficient to mention that it is an act of one spouse to withdraw from the company of the other:
for a permanent period,
without the consent of the other spouse, and,
without a reasonable cause.
We can also find the definition of desertion in the explanation provided under Section 13 of the Hindu Marriage Act, 1955, which states that,
“The expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage…”
The concept of desertion can be narrowed down to two essential conditions that need to be fulfilled:
The factum of separation, and
The intention is to bring cohabitation to an end permanently, which is also known as animus deserendi.
On the other hand, there are two elements that are necessary to be fulfilled from the side of the spouse who has been deserted, which are:
Absence of consent on the part of the spouse who has been deserted, and
Absence of such an action, which can give rise to some reasonable cause to their significant spouse to desert them or develop an intention to desert.
The offence of desertion begins when the factum of separation and animus deserendi co-exist, though they may not have started at the same time.
As per the Bombay Hindu Divorce Act, 1947, the two elements of desertion must continue throughout the period of four years. If the deserting spouse repents and decides to come back with an intention to resume the matrimonial relationship and offers to do so before the statutory period of four years ends, or even if it ends, then until the proceedings of divorce have been started, desertion comes to an end.
Now, if the spouse who has been deserted refuses to take the other spouse back without any reasonable cause, then it will be considered that desertion is now being done by the other spouse. Thus, the spouse who has been deserted must stand by the marriage and must always be willing to take the other spouse back and resume the married life under reasonable conditions.
If the case is such that one spouse, by their words or conduct, forces the other spouse to leave the matrimonial home, then the former spouse would be guilty of desertion even though it is the latter spouse who has physically left the house.
Judgements referred to in the case of Bipinchandra Jaisinghbhai v. Prabhawati (1957)
The Supreme Court had referred to a few judgements to give more clarity regarding the concept of desertion. The following judgements have been referred to:
Thomas v. Thomas (1924): In this case, it has been stated that desertion is not a single act that is complete by itself. There must be a purpose behind the act of leaving the party. A mere temporary parting away, unless accompanied by a purpose or object, does not amount to desertion.
Wilkinson v. Wilkinson (1894): It was stated in this case that desertion is not a specific act but a course of conduct.
Sickert v. Sickert (1899): It was held in this case that the party who intends to bring the cohabitation to an end and whose conduct has resulted in such termination is the one who commits desertion.
Pratt v. Pratt (1939): In this case, it has been stated that the petitioner needs to prove, in order to get a divorce, that throughout the whole statutory period required to constitute desertion, the defendant has, without cause, been in desertion. It has to be proved that the deserting spouse has had a continuous intention to desert throughout the period.
Bowron v. Bowron (1925): From this case, the relevant portion that has been highlighted is that it is not necessary that the guilty party is the one who leaves the matrimonial home. The party who harbours the intention to end the cohabitation and whose conduct causes the termination of cohabitation is the one who commits desertion. In the case of desertion, one must consider the conduct of the spouses to conclude their real intentions.
Lang v. Lang (1955): In this case, an appeal was made from the decision of the High Court of Australia to the Judicial Committee of the Privy Council. It was held that, in England and Australia, two things need to be proved to establish desertion:
The factum of desertion, which is some outward or visible conduct, and
The animus deserendi, which is the intention to end the matrimonial relation behind the conduct.
The factum of desertion simply means to leave the matrimonial house. The intention is to be considered in such a case, that is, whether the deserting party left the house permanently to break off ties or intended it to be a short break.
Critical analysis of Bipinchandra Jaisinghbhai Shah vs. Prabhawati (1957)
The case of Bipinchandra Jaisinghbhai Shah v. Prabhawati led to an important revelation in the concept of desertion that the abandoning party cannot be charged with the offence of desertion if they have shown their willingness to reconcile, and it is the other party who refuses to take them back.
In the present case, though the plaintiff had claimed that it was the defendant who had shown a negative attitude towards his efforts to resolve the matter, the same was not proved in the course of the proceedings. The only proof that the plaintiff could present was the letter addressed by the defendant to Mahendra.
On the other hand, it can be stated that the defendant, in order to escape from the difficult atmosphere created due to the discovery of her letter, considered it correct to take a leave from her marital house and take shelter in her father’s house. However, after the passing of a few months, she did show the intention to fix things and go back to her matrimonial house. Unlike the plaintiff’s contentions, the defendant could support her intention to return with the testimony of her relatives and even her in-laws.
The solicitor’s letter and the letter addressed by the plaintiff’s father contradicted the plaintiff’s testimony that he was always willing to take the defendant back. Both of them provided clear evidence from which it can be deduced that the plaintiff did not wish to continue his matrimonial relationship with the defendant.
The Supreme Court proceeded to decide that, though, as per the facts of this case, the initial fault was on the defendant to leave her matrimonial house, it was not accompanied with the intention to desert, that is, animus deserendi. It was out of guilt and embarrassment due to the disclosure of her love letter to Mahendra. Subsequently, she showed a willingness to return, but it was the plaintiff who opposed the same. The essential that the deserting party must possess the intention to desert was, thus, not satisfied.
The Court had also mentioned that it is the quality of “permanence” that differentiates desertion from willful separation. This statement is relevant in the present case as it can be seen that the defendant tried numerous times to reconcile their matrimonial relationship. It is common that, due to anger, disgust, or feeling overwhelmed, one spouse abandons the other, but that is for a temporary period. In such a scenario, it is not the intention of the abandoning party to permanently end the cohabitation, and thus, such an abandonment cannot be termed as desertion.
Finally, the Supreme Court concluded that there was no desertion, considering that the wife was ready to reconcile but the plaintiff was not willing to take her back. Thus, the plaintiff failed to satisfy his case of desertion, and his plea of divorce was unsuccessful.
Conclusion
This case led to some important deductions in the domain of matrimonial law, in particular, desertion as a ground for divorce. The most essential conclusion is that the intention to desert is the deciding factor in figuring out whether there was desertion. In the absence of the intention to abandon permanently on the part of the deserting party, there is no further need to delve into judging if the other essentials are fulfilled.
Another crucial conclusion that can be drawn from this case is that if the deserted spouse tries to reconcile before the minimum period mentioned in the concerned legislation for the continuation of abandonment to constitute desertion expires and the deserted spouse does not comply, then the offence of desertion shifts to the deserted spouse. This factor clears up the confusion regarding the question as to who is to be held guilty of desertion.
Moreover, the manner in which the Supreme Court has analysed not only the facts of the case but also the observations of the lower courts in a detailed manner enlightens us about the importance of evidence and corroboration of that evidence. Relying on only the testimony of one party is to be avoided, especially when it lacks support.
Thus, this case provides a crucial study to understand the intricacies of desertion to a great extent.
Frequently Asked Questions (FAQs)
What is the case of Bipinchandra Jaisinghbhai Shah v. Prabhawati (1957) about?
The case is about desertion. The plaintiff had applied for divorce on the ground that his wife had deserted him for four years.
What is meant by desertion?
In simple terms, desertion is the act of one spouse intentionally leaving the other spouse without their consent and without any reason for a permanent period to end their cohabitation.
What are the essentials of desertion?
The five essentials of desertion are:
The factum of separation,
The existence of animus deserendi (intention to end the cohabitation),
The absence of any reasonable cause,
The absence of consent of the other spouse, and,
The permanent nature of the separation.
Who is said to commit desertion?
The spouse whose conduct is the reason for the end of cohabitation is charged with desertion.
Is it necessary that the abandoning party is always charged with desertion?
The party withdrawing does not become guilty of desertion if the conduct that has resulted in such withdrawal has come from the other party. Similarly, if the deserting party shows their willingness to come back and resume cohabitation and the party deserted resists such a return, then the later party is said to commit desertion, not the former one.
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This article is written by Arya Senapati. It attempts to analyse the provisions related to cruelty through the landmark case of Samar Ghosh v. Jaya Ghosh, which deals primarily with mental cruelty in matrimonial disputes. It also outlines the legal interpretations of the courts on matters of cruelty and an analysis of the precedent set by the Apex Court for future cases.
Table of Contents
Details of the case
Name: Samar Ghosh v. Jaya Ghosh
Court: Supreme Court of India
Bench: B.N. Agrawal, P.P. Naolekar, and Dalveer Bhandari
Date: 26.03.2007
Citation: AIRONLINE 2007 SC 347
Introduction
As domestic violence, dowry death, inferior treatment of women, and many other negative aspects started getting attached to the institution of marriage, it became necessary for the state to interject and protect the institution from losing its significance and protect the parties from getting their rights infringed upon. With multiple pieces of laws like the Domestic Violence Act, 2005, which aims to prevent the curse of domestic violence in marriages and the Special Marriage Act, 1954, which laid out provisions for inter-caste marriages, the legal system related to matrimonial laws was highly strengthened. Even the judiciary, through multiple landmark decisions, gave various aspects of marriage a new meaning. In the Shayara Bano v. Union of India (2017) judgement, the Apex Court held that triple talaq was invalid. Similarly, in Shakti Vahini v. Union of India (2018), the right of two consenting adults to marry each other out of their own personal choice without the interference of parents was recognised, which provided adults with the fundamental right to marry out of their own personal will. To modernise things even more, the Apex Court recognised the validity and the right to be in a live-in relationship in the case of Lata Singh v. State of U.P. (2006), which, even though considered immoral in society, is not an offence per se.
The legislature and judiciary have taken very progressive takes on the institution of marriage, which has been considered a sacrament in many religions and faiths, but in some cases, the veil of a sacrament, when lifted, reveals a rather cruel picture filled with violence, abuse, harassment and undignified treatment of one partner by the other and that is what leads to divorce or judicial separation through the help of law and order. While there are many prominent grounds of divorce in different personal laws, the most prominent one is cruelty, amongst many others, like adultery, irretrievable breakdown of marriage, mental incapacity of partner, etc. Cruelty is the conduct of one particular partner, which creates an apprehension of fear of harm and injury in the other partner to live with the partner-at-offence. The landmark ruling in the case of N.G. Dastane v. S. Dastane (1975) dealt with cruelty and laid down a test to define cruelty in a broader sense, but with the passage of time, just like any other concept, the concept of cruelty has also changed. While earlier cruelty was perceived simply to be physical, it has more connotations now. Cruelty can be mental, social, sexual, physical and economic. These dimensions of cruelty have developed through multiple decisions and landmark rulings by various courts.
One such landmark judgement is the case of Samar Ghosh v. Jaya Ghosh (2007), which made the courts recognise the mental aspect of cruelty. It deals with how undignified treatment, disrespect, harsh words, abusive and degrading remarks and many such things can lead to mental strain on the minds of a partner, which may, in turn, make it extremely difficult for them to live together and eventually seek divorce. This judgement is significant because it opened the doors of the courts to many such victims of mental cruelty to seek redressal, as earlier, even the ones who were meted out with such treatment understood cruelty from a physical dimension and did not know that mental cruelty can also be a valid ground for seeking divorce.
Facts of Samar Ghosh vs. Jaya Ghosh (2007)
This case arises as a consequence of a matrimonial dispute after almost twenty-two years of marriage between two senior officials of the Indian Administrative Services. The appellant and the respondent entered into marriage on December 13, 1984, under the Special Marriage Act, 1954, in Calcutta. The respondent had a divorce from her previous marriage and also had a daughter from her previous marriage. She had the custody of her daughter, which was granted to her by the District Court of Patna, where she contested her divorce from her previous husband, Debasish Gupta, who was also an IAS officer.
The appellant and the respondents have known each other since 1983, when the respondent used to work in the Finance Department of the West Bengal Government, during which their friendship developed into a relationship. Thereafter, the respondent’s first husband filed a belated appeal against the divorce decree obtained by the respondent. While the appeal was pending, the respondent coaxed the appellant into marriage so that the appeal could become infructuous.
Once the marriage was solemnised, the respondent asked the appellant not to intervene in her career, and she also informed him of her unilateral decision to not have a child with him for at least two years. She also asked the appellant not to ask questions regarding her daughter and to maintain a distance from her.
The appellant felt a lack of love, emotions, affection and future planning, as a spouse would expect in a normal marital relationship. The appellant felt the respondent’s lack of empathy towards him and his condition soon after the marriage, and around February 1985, the appellant fell severely ill.
The respondent’s brother worked in Bareilly. Despite the respondent’s ill health and high fever, the respondent left him alone and went to visit Bareilly along with her parents and daughter. She didn’t take care of him and no one was enthused by it either. After returning, she stayed in Calcutta for four days but did not meet the appellant and showed no concern for his health or illness.
The appellant stated that he tried to do everything possible to maintain a normal marital life. He would always visit her where she was posted for her duties, but she showed a clear lack of interest in his efforts and was very nonchalant about the marriage. The appellant would return home feeling miserable and rejected. He was made to feel like a stranger in his own family.
After this, the respondent was transferred to Calcutta, and their home was allotted to the appellant and they used to have a cook called Prabir. The respondent used to come to the house at intervals, but she had a fear of her daughter being in danger from the cook, and then they started living separately in September 1985.
The appellant was then transferred to Murshidabad in 1986 and the respondent decided to stay back in Calcutta. The appellant stayed in Murshidabad until 1988 and then was deputed elsewhere by the Central Government, wherein he fell ill and requested a transfer to Calcutta, where he returned in September 1988. The appellant and the respondent started living together and tried to start a new relationship by forgetting the past.
The appellant stated that the respondent ever treated their home as the family home, and the respondent, along with her mother, would always teach the daughter that the appellant was not her father. Eventually, the child started to maintain distance from the appellant. The respondent would ask the appellant to stay away from the daughter and not show any love or affection to her, which offended the appellant deeply.
The appellant also found out that the respondent was planning to divorce the appellant, which was also disclosed to him by the respondent’s daughter. She then left their home and started living in her parent’s home in 1989. In 1990, the appellant’s servant left the job and then the respondent would only come to their home to drop her daughter off at school, cook food for herself and then leave for her office. The appellant had to keep eating outside, having no other alternative.
Around August 1990, the servant came to stay in the flat for two days, and when found out by the respondent, she screamed at the appellant, claiming that he had no self-respect, and she asked the servant to get out of the flat. This made the appellant feel humiliated and insulted. He left the flat and found a temporary shelter until a government flat was allotted.
They started living separately, and the appellant states that the respondent refused to cohabit with him and share the same bed without any justification. As per the appellant, her decision to not have a child caused mental cruelty to him, and he wasn’t even allowed to be a caring father to her daughter from the previous marriage. The appellant, therefore, filed a divorce.
Issues raised
The Additional District Judge, Alipore, framed the following issues after going through all the evidence, statements, plaint and written statements:
Whether the suit is maintainable or not?
Whether the respondent is guilty of the alleged cruelty as per her conduct?
Whether the petitioner is entitled to a grant of divorce as claimed by him?
What other relief is the petitioner entitled to?
The following issues were discussed, and the contentions were made accordingly.
Contentions of the appellant
The appellant provided the Apex Court with many arguments to seek divorce from the respondent and establish cruelty on her part. Some of the notable arguments include:
There was a complete lack of emotion, feeling and concern for the appellant by the respondent after their marriage. Despite multiple attempts by the respondent to restart their matrimonial ties in a normal manner by forgetting the past, this lack of apathy made him feel dejected and miserable. His efforts were neither appreciated nor reciprocated. The respondent was indifferent to the appellant’s emotions and feelings.
The respondent failed to take care of the appellant when he was severely ill and had no one else to take care of him. The respondent chose to go on a trip with her family while the appellant was sick and did not enquire about his well-being after returning. This made the appellant feel truly alone in his own home and he felt very uncared for.
The respondent’s unilateral decision not to have a child with him also affected the appellant, as he wanted to have a child and complete his family. She did not consult with or ask him for his opinion before making that decision unilaterally, which shows her lack of interest in cooperating in matrimonial relations.
The respondent denied the appellant being close to her daughter from her previous marriage and not developing any affection towards her. The respondent also denied him being inquisitive about her daughter’s well-being and whereabouts. Furthermore, the respondent and mother would teach the daughter that the appellant is not her father, which made her avoid him, and that deeply affected the appellant.
The appellant states that the respondent had a problem with his servant, Prabir Mallick, without any valid reason or suspicion. When Prabir had come on a holiday to stay with the appellant after quitting his job, the respondent and her father abused Prabir and the appellant, which made him feel insulted and humiliated, and it made him leave their house and find temporary residence at a friend’s place.
She started living separately from the appellant at her parent’s house and would only come to their home to cook for herself. She did not cook any meals for the appellant when he did not have a cook, forcing him to eat outside and feel bad for himself and his cognition.
The refusal to share the same bed with him also made him feel humiliated, as she did not have any reason for doing the same.
The appellant also provided three witnesses in support of his claim.
The first witness was himself, and the second was Mr. Debabrata Ghosh, the appellant’s younger brother. He informed the court that he didn’t attend his brother’s marriage ceremony, and he barely visited his brother and sister-in-law at their residence. He also stated that he never took any financial assistance from his brother to manage his family expenditures. He stated that he had witnessed the existence of a certain conflict and rift between the appellant and the respondent.
The third witness was Mr. N.K. Raghupati, who was a friend of the appellant and knew both the appellant and the respondent as his colleagues. He was staying at the Calcutta Circuit House and stated that two weeks before the Puja Vacation of 1990, the appellant asked if he could stay with him as he had certain altercations with the respondent.
The appellant’s servant, Prabir, was examined as the next witness, and he stated that he had known the appellant for almost 9 years. After quitting his job to work at the Burdwan Collectorate, he used to visit the appellant’s flat on the 2nd and 4th Saturdays. He noticed that the relationship between the appellant and the respondent was not good. He also stated that the appellant had informed him of how the respondent only cooks for herself and that he has to eat out. He stated that the appellant’s brother and sister would never visit their residence and that the respondent’s daughter used to say that the appellant is not her father as they have no blood relationship with each other.
The servant also stated how the respondent got furious at him when she found out that he was staying in the flat. She stated that it was her flat and she was allowing the appellant to stay there as he had no other place.
The next witness was Sikhabilas Barma, who was also an IAS officer, and he stated that he knew the appellant and the respondent didn’t have a good relationship with each other. The appellant had told him about how his wife just cooks for herself and he has to take meals outside. He also witnessed how the respondent drove the appellant out of her flat.
Due to all of these facts, the appellant felt extremely miserable and had to undergo immense mental cruelty, for which he sought a decree of divorce from the court.
Contentions of the respondent
After the appellant made his arguments, the respondent submitted a written statement presenting her contentions and called a few witnesses in support of her claim. Some of the notable contentions are:
The respondent stated that whatever conflict or discord happened in their marital life was because the appellant let himself be controlled by the directions of his family members and his relatives, who were disapproving of the marriage. She stated that the family largely interfered with their marriage and that the appellant filed for divorce only because his brother and sister made him do it.
The respondent stated that she and the appellant had a normal marital life and denied all allegations of lack of affection and love. She also denied the allegations of poorly treating Mr. Prabir, the servant. She also stated that the appellant’s brother and sister usually stayed with them at their Minto Park residence whenever they came to Calcutta. She accused the appellant’s brother and sister of interfering with their private lives, which resulted in annoying the respondent.
She stated that the appellant was a good man and also admitted that the relationship between them was not ideal and that once, on 27.8.1990, the appellant had to stay outside their residence. Still, she denied the allegations of the appellant, who stated that she did not want to have a child with him for two years. She also denied the allegation that she refused to cohabit with him.
The respondent called Mr. R.M. Jamir, her witness number 2, and he stated that he knew both of them from 1989-90, and whenever he visited their home, he found them to be cordial and normal. He also stated that in 1993, the respondent inquired about the heart health and well-being of the appellant.
The respondent called her father, A.K. Dasgupta, as witness number 3. He stated that the respondent had never humiliated the appellant or the servant in his presence and that she did not ask the servant to leave the house. He stated that the respondent and the appellant started living separately in 1990, and after that, the appellant has never made an effort to inquire about her condition. He also accepted the fact that the appellant had an affectionate outlook towards the respondent’s daughter and that he was not aware of the appellant’s heart condition or his bypass surgery.
District Court’s decision
On the matter of the maintainability of the suit, the trial court did not spend much time pondering it and decided in favour of the appellant that the suit was indeed maintainable.
Moving to the question of establishing cruelty on the part of the respondent, the court appreciated all the evidence submitted before it and came to the following decision. As per the court, these acts constituted mental cruelty:
Refusal of the respondent to cohabit with the appellant.
She made the respondent’s decision to not have a child with the appellant for two years unilaterally.
The act of the respondent insulted the appellant. It made him leave their Minto Park house and temporarily seek shelter at a friend’s place until an official residence was allocated. This is in reference to the day when the respondent screamed and hurled abuses at the appellant to find out that the servant was staying with him.
The fact that the respondent used to go to the flat and only cook food for herself forced the appellant to eat outside many times.
The fact that the respondent did not care for the appellant’s consistent illness and had no concern for his heart condition led to a bypass surgery.
The insult and humiliation that the respondent subjected the servant, Prabir, to.
Based upon all these facts, the Additional District Judge found it necessary to grant the decree of divorce and stated that the appellant was successful at proving mental cruelty on the part of the respondent, which ultimately led to the dissolution of their marriage.
High Court’s decision
Aggrieved by the decision of the District Court, the respondent filed an appeal before the Calcutta High Court. The High Court reversed the judgement given by the Alipore District Court and held that the appellant was not successful at proving that the respondent was cruel to him. The High Court based its decision on the following findings:
Considering that both spouses had such high status in society, it was well within the respondent’s right to decide when she wanted to have a child after getting married, as it was her personal choice for a career or any other reason as she may please.
The High Court also condemned that the appellant failed to produce an exact date or time period when the respondent decided not to have a child with him while making his pleadings, which makes matters inconsistent.
The failure of the appellant to procure an exact date as to when the respondent conveyed her unilateral decision to not have a child with him for two years also makes it hard for the court to establish cruelty of any kind.
As per the High Court, the fact that the appellant continued to live and cohabit with the respondent despite her decision not to have a child amounts to condonation (forgiveness of cruelty by an implied act that shows an interest in continuing to live like a normal married couple) of cruelty.
The High Court did not believe the fact that the respondent refused to cohabit with him, as the appellant was not successful at tendering an exact date, time, or month when the respondent conveyed to him the decision to stay separately from him.
As per the High Court, the fact that the respondent and the appellant slept in different beds didn’t amount to the fact that they did not cohabit together.
As per the High Court, the respondent’s refusal to cook did not amount to cruelty as she was a working woman of high status and had to go to her office on time for her work.
As per the High Court, the fact that the wife did not visit the husband during a period of prolonged illness also did not amount to mental cruelty.
Based on all these facts, the High Court reversed the judgement given by the District Court and held that the respondent was not guilty of mental cruelty and that the appellant could not be entitled to divorce or dissolution of marriage.
Supreme Court’s decision
The High Court’s decision was ultimately appealed by the appellant, and the Supreme Court gave the following decision:
The excessive reliance of the High Court on the fact that the respondent was an IAS officer was erroneous, as per the Apex Court. Even if both parties to a marriage are IAS officers and hold a high status in society, it cannot be said that they cannot show normal human emotions, as is expected of any spouse in a marriage. It is highly rash and unfair to say that their emotional quotient would be different due to the positions they are engaged in.
The fact that the High Court believed that the respondent was free to make the decision of whether she wanted to have a child or not due to the fact that she had a high status in society and was an IAS officer is highly unjust. Such decisions cannot be made unilaterally in a marriage, and if at all they are made unilaterally, it would amount to mental cruelty to the appellant.
The observation of the High Court that the continuance of cohabitation by the appellant with the respondent amounts to condonation or forgiveness of cruelty is unsustainable in law.
The High Court’s opinion that the respondent’s refusal to cook for her husband doesn’t amount to cruelty because she had to work and go to her office is also unsustainable in law. The High Court did not address the facts correctly, as the District Court did. The question was not about cooking food but was about cooking only for herself and not the husband, which would clearly annoy the husband and lead to a clear instance of mental cruelty.
The High Court has also erroneously decided on the matter of refusal to cohabit. As per the High Court, denial to share a bed does not amount to refusal to cohabit. However, as per the Supreme Court, no matter what status the respondent has, the fact that she decided to sleep in a separate room amounts to refusal of cohabitation, as when she entered into a matrimonial tie, she impliedly agreed to stand by all the expectations and fulfil all the obligations expected out of a normal marital life.
The observation of the High Court that the health condition of the appellant was not too serious to demand the attention of the respondent cannot be sustained in law, as in a normal Indian family, the husband cares for the wife when she is sick and expects the same from his wife when he is sick. The complete ignorance of the appellant’s health condition by the respondent would surely cause annoyance to him and amount to mental cruelty.
The Supreme Court believes that the High Court has placed too much reliance on the evidence submitted by the respondent and had no consideration for the evidence submitted by the appellant. When the High Court relied on the statement of the respondent’s father, stating that he did not enquire about both of them living separately and that he had no idea about the appellant’s bypass surgery, it erroneously relied on his statement. As per the Supreme Court, the testimony of the respondent’s father is completely unreliable and unbelievable and, therefore, should not be held to be sustainable in law.
The High Court has erred in not taking into consideration the statements made by Mr. Prabir Malik. The High Court found it unacceptable that the appellant, despite his education and high reputation, would take the help of his cook-cum-servant in matters of matrimonial disputes. As per the Supreme Court, a witness’s financial position and standing are irrelevant. The credibility of a witness is not dependent on his financial position. He is a natural witness to the matter, and the fact that he so graphically painted all the incidents that took place between the appellant and the respondent makes him a primary witness. All the incidents that Prabir quoted are serious matters, and the trial court was right to put heavy reliance on his statements, but the High Court has erroneously reversed the trial court’s judgement.
The High Court has also failed to consider the fact that the respondent and the appellant stayed separately for over sixteen and a half years, which is enough to show that the entire foundation of their marriage has disappeared by now. They haven’t even spent a single minute together since then, and even when the appellant underwent bypass surgery, the respondent did not even enquire about his health, which shows that they no longer have an interest in saving their matrimonial ties.
The court gave a chance for reconciliation to the parties, but the appellant was not even interested in doing so, and therefore, they shouldn’t be forced to stay together.
The High Court has seriously erred in reversing the judgement given by the district court. The marriage has been irretrievably broken down, and there is no scope for reconciliation. Mental cruelty can be established through the conduct of the respondent; therefore, the divorce decree was granted, and parties are directed to bear their own costs.
Rationale behind the judgement
The Apex Court made reference to multiple cases, definitions and principles to justify its position in this case. The notable points are:
Definition of mental cruelty
The Supreme Court refers to the definition of mental cruelty in the Black’s Law Dictionary, which goes like: “Mental Cruelty – As a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.” Similarly, in Halsbury’s Laws of England, the concept of cruelty states that, as per general rule, whenever a court attempts to establish cruelty, it should take the entire matrimonial relationship into account and not just violent acts. Harmful taunts, complaints, accusations and injurious reproaches can also be termed cruelty. Paramount importance must be given to the effect of the conduct and not the nature of the conduct. As per American Jurisprudence too, mental cruelty is the conduct of one spouse that causes embarrassment, humiliation and anguish in the other and makes their life miserable. There must be a consistent course of conduct on the part of the respondent that poses a threat to the physical and mental health of the appellant and makes it impossible to continue cohabiting with each other.
The Supreme Court took a broader understanding of the term “mental cruelty” so as to analyse whether the acts alleged in this instant case amount to cruelty as an aggregate. If so, then the decree of divorce can be granted. The court, in its approach, first refers to its own judgement in the case of N.G. Dastane v. S. Dastane (1975), wherein mental cruelty was defined as the conduct of the respondent that causes a reasonable apprehension in the mind of the appellant that it will be harmful or injurious for him to live with the respondent.
Previously decided cases related to mental cruelty
The Apex Court made reference to these previously decided cases on mental cruelty to justify its judgement.
Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan & Anr. (1981)
The Apex Court then refers to this case, wherein it was held that the understanding of whether a conduct amounts to cruelty or not changes as per the advancement of society and societal norms, which equate to the standard of living. Moreover, to establish legal cruelty, it is not necessary to prove actual physical violence. Consistent bad treatment, stopping the act of intercourse, neglect towards the partner and indifference can also amount to mental or legal cruelty.
Shobha Rani v. Madhukar Reddi (1987)
Then, the Apex Court refers to the case wherein the court stated that the word cruelty has nowhere been defined in the Hindu Marriage Act, 1955, and it has been used in Section 13(1)(i)(a) only in relation to human conduct or behaviour in relation to matrimonial duties and obligations. It is the conduct of one spouse adversely affecting the other. Therefore, cruelty can be mental and physical, with or without intention. In matters of physical cruelty, the court is concerned with the nature and degree of harm based on facts, but in matters of mental cruelty, the court is concerned with the nature of the conduct and the impact that such conduct has on the mind of the appellant. The court must examine whether the act is causing a reasonable apprehension of harm and injury in the mind of the appellant, making it impossible for him/her to cohabit with the respondent. Once that is established, mental cruelty can be conferred. The absence of intention is immaterial in such a situation.
Rajani v. Subramonian (1988)
The Apex Court makes a reference to the case wherein the court held that the existence of cruelty must be established keeping in mind the kind of life the parties lead and are used to based on their economic and social standing in society, their culture and their values contrasted with the standards of modern society and the culture prevalent at the time.
V. Bhagat v. D. Bhagat (1991)
The Apex Court then made reference to the case wherein the judgement states that the term mental cruelty as per Section 13 can be defined as any conduct that causes mental pain and suffering to one party by the conduct of the other, making it impossible for them to live together. While establishing cruelty, the court must make reference to the social position, educational qualifications, surrounding society and many other relevant factors to constitute cruelty.
Chetan Dass v. Kamla Devi (2001)
The next case that the Apex Court referred to is this one,which states that whenever the facts and submissions make it clear that the marriage has irretrievably broken down and there is no ground for reconciliation, parties should not be forced to stay together, as it would be dangerous for them to do so.
Gananath Pattnaik v. State of Orissa (2002)
The next case referred to was the one in which the judgement stated that the idea of cruelty would vary from one individual to the other. What may seem cruel to one party may be a laughing matter to another. Therefore, it is important to examine cases of cruelty on a case-to-case basis.
Parveen Mehta v. Inderjit Mehta (2002)
The court then referred to the case, wherein the parties had started to live separately for a very long period of time. Based on this prolonged separation, it was clear that they had no interest in reconciling. It was clear that their marriage had irretrievably broken down and therefore, there was no point in forcing them to stay together as it would only cause them more harm and danger, as observed by the Apex Court.
Vinita Saxena v. Pankaj Pandit (2006)
In this case, it was held that the establishment of cruelty will not depend on the number of times it has happened but on the gravity or intensity of the matter, which leads to a detrimental effect on the mental position of the spouse.
Establishing mental cruelty – tests
The Supreme Court states that to establish mental cruelty, the conduct must be grave and substantial. The normal conflicts in a matrimonial setup cannot be ascertained as cruelty, as that would lead to a lot of frivolous cases. Physical violence is not necessary to constitute cruelty. Mental apprehension of harm is also enough to establish cruelty. The court must be satisfied by all the acts that there is no scope for reconciliation between the parties, and it would be highly improbable for them to live together. The educational, economic and social backgrounds of the parties must also be considered while making the decision. Every act that causes annoyance to one partner is not enough to establish cruelty. It must be consistently grave and make it impossible for the appellant to cohabit with the respondent.
Certain instances constituting mental cruelty
The Supreme Court provided this indicative list of instances that lead to mental cruelty. This list is not exhaustive but simply suggestive:
Acute mental pain, agony and suffering make it impossible for parties to reside together
Simple indifference doesn’t amount to mental cruelty, but consistent use of foul language, petulance and neglect can lead to mental cruelty.
Consistent abusive and humiliating treatment makes the life of one of the partners truly miserable.
Unjust conduct and behaviour of one spouse towards the other, which affects the physical and mental health of the other, amounts to mental cruelty.
A husband undergoing vasectomy and a wife undergoing tubectomy without the consent of each other can amount to mental cruelty.
Prolonged periods of continued separation can indicate an irretrievable breakdown of the marriage.
The unilateral decision of a spouse to not have a child after marriage may amount to mental cruelty.
While establishing cruelty, the entire married life must be examined, not just a few isolated instances. There must be continuous bad conduct and misbehaviour to establish mental cruelty.
Normal fights, which are trivial and common to all marriages, cannot be said to be grounds for divorce. There has to be a severity in terms of the differences and conduct.
As per the Apex Court, these are the few instances that can guide courts to reach a decision and establish mental cruelty in a marriage.
Conclusion
Considering the fact that the idea of a particular provision in law must be interpreted differently as time changes and society transforms, it was necessary in the Indian legal system that the interpretation of cruelty be broadened to include the mental dimensions of cruelty as well. The case of Samar Ghosh v. Jaya Ghosh is an important precedent that recognises that the idea of cruelty varies from individual to individual and cannot be judged in a standardised manner. The social background, economical condition, educational qualification and more factors are to be considered while establishing cruelty. To date, this landmark decision serves as an important precedent for courts to establish cruelty in matrimonial disputes and, therefore, has a unique significance.
Frequently Asked Questions
What is the definition of mental cruelty?
While the courts found it difficult to establish a standardised definition of mental cruelty as it varies from a case-to-case basis depending upon the background of individuals, the primary definition suggested by the courts is: Mental cruelty is the conduct of a respondent that leads to an apprehension of harm/ injury in the minds of the appellant, making it difficult for them to reside together.
Is mental cruelty a ground for divorce?
While the earlier understanding only attributed physical cruelty as a ground for divorce, through various developments in the form of judgements, mental cruelty has also been recognised as a valid ground for divorce.
What is the condonation of mental cruelty?
Condonation of cruelty means any act by the appellant that shows implied forgiveness and a willingness to continue cohabitation with the respondent. Example: continuation of sexual intercourse with the respondent.
Is intention a necessary factor to establish cruelty?
No, the intention is immaterial while establishing cruelty. Cruel conduct can be done with or without any intention.
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