This Article is written by Shashvat Pant, a 2nd-year law student of Centre for legal studies, Gitarattan International Business School (giBS), GGSIPU, Delhi . In this article, he has tried to explain the offence of ‘Dowry Death’ along with the legal provisions relating to it.

Introduction

In order to understand the offence of ‘Dowry Death’, we must familiarize ourselves with the concept of ‘Dowry’. ‘Dowry’ is a social norm which has existed in India since medieval times. During, British colonialism, the practice of Dowry became mandatory to get married. the meaning of ‘Dowry’ in general terms is ‘the money or gift given away to the bride by her parents in exchange for her post-marriage independence. Dowry includes cash, jewellery, electrical appliances, furniture, bedding, crockery, utensils, vehicles and other household items that help the newlyweds set up their home.

In case of non-payment of the dowry, the bride is subjected to violence by husband or relatives of the husband. Sometimes, even after payment of dowry, in-laws in a greed of extracting higher dowry from the bride’s parents subject the bride to physical, mental and sexual violence. The violence ranges from minor cuts to burning the bride alive. In some cases, mental violence drives the bride in committing suicide. Even though asking for dowry has been declared since the implementation of the Dowry Prohibition Act, 1961, yet the practice of dowry is still prevalent in India.

Dowry

In general terms ‘Dowry’ is a social norm, according to which the bride’s parent gives the bride a handsome money in exchange of her post-marriage independence. The meaning of term ‘Dowry’ is mentioned under Section-2, Dowry Prohibition Act, 1961 –

‘’Dowry” means any property or valuable security given or agreed to be given either directly or indirectly—

• by one party to a marriage to the other party to the marriage; or
• by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage.

**It does not include Dower or Mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.**

Dowry Death

In general terms, it is murder or suicide of a married woman caused by a dispute over her dowry with husbands or relatives of the husband. ‘Dowry Deaths’ are found mainly in India, Pakistan, Bangladesh and Iran. India reports the highest total number of dowry deaths every year. Dowry death is one of the many categories of violence against women, besides, rape, bride burning, genital mutilation and acid attacks.

‘Dowry Death’ is an offence mentioned under Section – 304-B (i), Indian Penal Code, 1860 –

“Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har­assment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “Dowry Death”, and such husband or relative shall be deemed to have caused her death.”

Essentials

1. Death caused by burns/ bodily injury which does not occur under normal circumstances
2. Within 7 years of marriage
3. ‘soon before’ death woman was subjected to cruelty/ harassment by husband or relatives of the husband
4. In connection with Dowry, shall be deemed as ‘Dowry Death’
5. Person subjecting Cruelty/ harassment shall be deemed to have caused ‘Dowry Death’    

The punishment for the offence of ‘Dowry Death’ is mentioned under Section – 304-B (ii), IPC –

“Whoever commits dowry death shall be punished with imprison­ment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

Provisions relating to Dowry Death

Abetment to suicide (S.306, IPC): 

The person who subjects a woman to harassment/ cruelty in connection with the dowry, in some cases such a person’s actions might drive that woman into committing Suicide.

The person who drives a woman into committing suicide is said to have abetted Suicide and such person shall be booked under Section – 306, Indian penal Code,1860

The punishment prescribed for Abetment to suicide is:

1. Imprisonment up to 10 years.
2. along with imprisonment, such person shall be liable to pay fine

Presumption as to Dowry Death (S.113-B, IEA)

In question, whether a person committed Dowry Death, if it is proved that ‘soon before’ death the woman was subjected to cruelty/ harassment with connection to dowry demand. Court shall presume such person has caused ‘Dowry Death’

** “Soon Before” – a demarcation has been made before ‘soon before’ & ‘immediately before’, as cruelty can be strong and have an effect over the period of time.**

# A live-link must be established between ‘Cruelty’ and ‘Cause of Death’:       cruelty was so intense that it remained alive until it caused death.

Husband or relative of husband of a woman subjecting her to cruelty (S.498-A, IPC)

“Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

A person, either husband or relatives of husband, if subject the woman to cruelty in connection with the dowry, shall be punished with imprisonment for a term which extends up to 3 years and shall be liable to fine.

** ‘Cruelty’ means

1. Conduct likely to drive a woman to commit suicide or cause grave injury or danger to life.
2. Harassment of woman with a view of coercing unlawful demand for property or valuable security.**

Prosecution of offences (S.198-A, CrPC)

This section deals with cases of ‘Complaint filed with a Magistrate’. ‘Complaint’ can be filed by woman or relatives by blood/ adoption.

 Essentials

• Death caused by burns/ bodily injury which does not occur under normal circumstances
• Within 7 years of marriage
• ‘soon before’ death woman was subjected to cruelty/ harassment by husband/ relatives of the husband
• In connection with dowry, shall be deemed as ‘Dowry Death’
• Person subjecting Cruelty/ harassment shall be deemed to have caused ‘Dowry Death’

Conclusion

It has been more than half-a-century since the implementation of the Dowry Prohibition Act, 1961. Over the past few years, there has been a significant drop in cases related to Dowry and Dowry Death, the people have actually started identifying Dowry as a social evil owing to increase in the literacy rate of the nation. Though even in the present-day scenario, India has most cases related to Dowry and Dowry Deaths must in near future, India is expected to overcome this social evil as it overcomes other social evil such as Sati, Jauhar and, Child marriage.

References

• http://www.legalserviceindia.com/legal/article-1245-dowry-and-dowry-death.html
• https://www.oed.com/
• https://en.wikipedia.org/wiki/Dowry_system_in_India
• K.D Gaur, 2nd Edition
• Indian Penal Code, 1860
• Indian Evidence Act, 1872
• The Code of Criminal Procedure, 1974

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This article has been written by Mansi Tyagi, a student at Symbiosis Law School, Pune. In this article, she has examined sections 118-166 of the Indian Evidence Act, 1872. She has tried explaining two aspects of witnesses under Evidence law in India – who can be a witness and the rules concerning the examination of witnesses.

Introduction

Opposed to the glittery emotional speeches in a legal house of a movie, the real-life legal proceedings work on evidence for reaching conclusions. Evidence facilitates the course of justice by guiding them. Under the Indian Evidence Act, 1872, Section 3 bifurcates evidence to device oral and documentary evidence. While the documentary evidence consists of all documents submitted to the court for inspection; oral evidence refers to the statements made by the witnesses referring to the facts in issue permitted or required by courts. Thus, witnesses constitute a very important part of any trial to be construed as fair. In simple language, a witness can be anyone having the knowledge of a matter. However, under law, not everyone can be a witness.

Who can be a witness?

Indian Evidence Act, 1872 lays down several rules for who can testify as a witness in the court of law. These rules encompass sections 118-134. Section 118 is an introductory section to the eligibility of the person to be witnesses. It states that unless the court considers otherwise, any and every person is competent to be a witness. However, such competency is limited owing to their tender age, extreme old age, bodily or mental disease, or any other thing to disrupt their understanding of the questions put to them. However, these conditions are applicable only when the person having them is unable to rationally value what is asked to them. Thus, a lunatic can also be a testified witness, unless his lunacy restricts him to answer the questions rationally. Also, it thus explains why even a minor’s statement is as admissible as that of an adult. In the case of ‘Dattu Ramrao Sakhare v. State of Maharashtra’, it was held that if a child’s statement as a witness was reliable then it was enough to convict the accused. Also, in the case of ‘Vijay @ Chinee v. State of Madhya Pradesh,’ it was made clear that in cases of sexual crime, if there is a sole witness then such a prosecutrix is a competent witness under section 118 of the Indian Evidence Act, 1872. The Act further makes arrangements for a witness who is unable to speak.
Section 119 of the act gives such witnesses the option of writing or communicating their testimonies through signs. However, such testimonies shall be taken in open court. Thus in the case of ‘Meesala Ramakrishnan vs. State of A.P.’, the Hon’ble Supreme Court considered a dying declaration as admissible and relevant which was recorded by means of signs and nods of a person who is not in a position to speak for any reason. Thus not language, but the rationale and intelligibility of the testimony has a greater weight.

Further, section 120 considers a husband or wife of the parties or the parties themselves as competent witnesses in both civil and criminal cases. Section 121 restricts any judge or magistrate to be a witness in any case, unless they are summoned by the higher court through special order. However, it will be really disrespectful if every magistrate was called upon by the higher courts to justify their reasoning to have approached some decision. Thus, as laid down by the Hon’ble Supreme Court in the case of ‘Union of India (UOI) vs. Orient Engg. and Commercial Co. Ltd. and Ors.’ until the court is satisfied with the contending parties’ reasoning to summon the magistrate or arbitrator as a witness, it won’t do so. Section 133 of the act further makes an accomplice a competent witness as well. In the case of ‘Chandra Prakash vs. State of Rajasthan,’ it was held that such confessional statements cannot be ignored on the grounds that it is non-corroborative with other material. Thus any conviction made by relying upon the confessions of an accomplice cannot be declared illegal only because it proceeded with such non-corroborative statements. At the same time, a person who is called to produce documents does not ipso facto become a witness and thus cannot be examined unless he is called as a witness (section 139).

Also, one question that lingers minds is the number of witnesses any case can have. From the case of ‘Prithipal Singh and Ors. vs. State of Punjab and Anr.’ where there was a sole witness examined to the case of ‘The State of Maharashtra vs. Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid’ where as many as 700 witnesses were examined, section 134 of the act lays no limit on the witnesses that can be examined in a particular case.

Now, there are some communications which are privileged and the communicator can not be compelled to disclose such information. These contain communication between spouses during their marriage (section 122); evidence from unpublished official records (section 123); communication made to a public officer in his official capacity (section 124); communication made to magistrate or police about the commission of a crime (section 125); communication made with a legal advisor (section 129); production of title deeds by a person who is not a party to the suit (section 130); production of electronic records or documents in possession which when with someone else, he can refuse to produce (section 131); communication made with the advocate (section 126) or even their clerks or interpreters (section 127) during the course of the proceedings unless made in furtherance of an illegal offence. However, one exception to all such privileged communications is the consent of the other party in communication. If the consent is given, such privileges can be foregone. But, in case of communications made with the lawyers or advocates, volunteering evidence by the client cannot be construed as an implied consent for any disclosure of the communication between him and the advocate (section 128).

Examination of Witnesses

Indian Evidence Act by virtue of section 135 settled the order in which the witnesses are to be produced and examined as per the civil or criminal proceedings’ laws in practice during the time being. However, in the absence of such laws in specific, the courts have the discretion to decide upon the order. What is of utmost importance in any criminal trial is evidence, and thus relevancy of evidence plays another crucial role in the trials. Section 136 of the Indian Evidence Act, 1872 gives statutory discretion to a judge to admit any evidence if he deems it fit on the proofs of relevance given by the party proposing such facts to be relevant evidence. In a case ruled by the Gujarat High court ‘State of Gujarat v. Ashulal Nanji Bishnoi,’ it was held that admissibility and relevancy of facts relied on the court of law to decide. However, it does not erase the provision to record these facts despite their rejection from getting admitted on the basis of relevance. In other words, there is no specified provision that the facts laid down as irrelevant and inadmissible by the judge can not be placed on record. But, on the other hand, mere admissibility does not prove the relevancy of a fact. After the admissibility, it is the weight of each fact that determines its probative value which in case is decided circumstantially by the court of law in each case.

Section 137 of the act classifies the examinations of witnesses into three broad categories, viz. Examination-in-chief, Cross-examination and Re-examination. To explain these three, take an example where A is a witness produced by side X. When side X examines A for the first time, it will be his examination-in-chief. When the opposite side examines A after the examination-in-chief, it is called the cross-examination. When again for the third time, he is examined by side X, it will be his re-examination. In the case of ‘State of Kerala vs. Rasheed’, the Hon’ble Supreme Court reaffirmed this order given under section 138 of the act. While chief examination is mandatory, the other two examinations are upon the choice of the parties eligible to take them. Also, while chief examination and cross-examination are supposed to be relevant to the matter in issue, the cross-examination may not be confined to what was asked in the chief examination. However, re-examination has to be made only upon the matters referred to in the cross-examination.

Section 140 of the act allows for examination of a person who is a witness to the character. However, in the case of ‘State of U.P. vs. Raghubir Singh’ the Hon’ble Supreme Court also laid down that when the character was testified by a witness to simply shake the credit of another witness or party, it could not be allowed.

Then there are leading questions. These are the questions that the person asking already has answers to in mind and expects them from the witness in reciprocity. However, there are conditions when such questions must be asked and must not be asked. Section 142 restricts such questions from being asked in the chief examination or re-examination if the opposite party objects to it. However, an exception to it is through the leave of the court. However, the Hon’ble Supreme court in the case of ‘Rajaram Prasad Yadav vs. State of Bihar and Ors.’ laid down that leading questions asked in re-examination with the sole purpose of giving the witness a chance to change the effect of his previous statement cannot be allowed under section 142. On the other hand, section 143 allows asking of leading questions during cross-examination. Also, section 146 lays down questions that can be asked to a witness during cross-examination to (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

Section 144 of the act empowers any witness to make oral testimonies about statements made by some third person about the contents of any document. However, this shall be admissible only if the statements are relevant facts for the matter in issue. This section can be illustrated well with an example where X overhears A swearing on B in a gush of anger with a gun in his hand. Here X’s statement is relevant to show the motive of A, even though there is no direct evidence for it. At the same time, for the written statements given by any witness, he can be cross-examined for the relevant part of such statements under section 145. However, only if the cross-examination is to contradict the statement made by the witness, shall he be shown the written parts he is asked about. In the case of ‘Kartar Singh vs. State of Punjab’, a Five-Judge Bench of the Hon’ble Supreme Court declared section 145 as the ‘acid-test’ for weakening the adversary witness’ statements and proving them unworthy of giving credit.

Opposed to the privileged communications, there are conditions that require compelling the witnesses to answer. The witnesses don’t come under any privilege if the question put to them is relevant to the matter in issue (section 132). For relevant matters to the suit, thus section 147 of the act applies the provisions of section 132. Therefore under section 147, the witnesses are compelled to answer.

However, again in section 148, the court is given the discretion to decide when the questions are asked and when the answers are compelled out of the witnesses. The courts shall have this discretion only in questions which are non-relevant to the matter in issue. Now, if the question is too remote to affect the opinion of the court or if they are disproportionate to the witness’s character and the evidence he produces, the court might declare such questions improper. However, where the question is of such nature that its answer would seriously affect the opinion of the court, the court may allow it as proper. However, in any case, it may or may not ask the witness his discretion to answer such a question. But where the witness refuses to answer such a question, the court may at its discretion infer the answer to be unfavourable. In the case of ‘Makhan Lal Bangal vs. Manas Bhunia and Ors.’, the Hon’ble Supreme Court observed that the power given to the courts through section 148 of the act not only saves the witness from unnecessary harassment by the adversary party, but also gives an inquisitorial touch to the otherwise adversarial form of judiciary in India. Likewise, section 151 gives the power to the courts to forbid any questions that appear scandalous or indecent, unless they are relevant to the matter in issue; and section 152 the power to forbid questions which are directed towards the witness to annoy or insult him. In furtherance to section 148 of the act, section 149 thus restricts asking questions without reasonable grounds. In case there is a breach of section 149, the court can report such circumstances observed by the concerned lawyer or advocate to the high court to which he is subject in his exercise of the profession by virtue of section 150.

Further, Section-154 empowers any party bringing the witness to ask questions which usually are to be asked in the cross-examination. Section 153 of the act charges the witness by giving false evidence if he answers falsely. However such evidence relevant to the matter in issue answered by the witness in such a way that its falsity only injures his character, no evidence contradicting him shall be admissible in the court. The section also lays two exceptions to it: If the witness falsely answers any question related to his former conviction or questions tending to impeach his impartiality, the evidence to contradict it may be admissible in the court. In the case of ‘Vijayan vs. State,’ the Hon’ble Supreme Court has held that “the rule limiting the right to call evidence to contradict a witness on collateral issues excludes all evidence of facts which are incapable of affording any reasonable presumption or inference as to the principal matter in dispute.” Another section empowering the adverse parties to challenge the credibility of the witness is section 155. There are three ways to it: firstly through testimonies of persons declaring a witness’s unworthy credit; showing that witness was induced by a bribe, or thirdly by proving the inconsistencies made in the statements given by the witness. However, as for the third way, the courts have taken a rather liberal view like in the case of ‘Rammi vs. State M.P. with Bhura vs. State of M.P.’. The Hon’ble Supreme Court laid down that mere inconsistencies in statements was not enough to contradict the credit of a witness. In order for this to work, thus unless a statement had the potential to discredit the latter statement made by the witness, he could not be contradicted even though his statements had variances at every stage.

A witness under section 156 of the act may be questioned about circumstances around the evidence he put to corroborate his testimony. To corroborate a testimony, any former statement made by the witness can also be proved under section 157. However, relevant statements which are already proved under sections 32 or 33 of the act, they shall be further only used to corroborate or contradict in order to impeach the credibility of the witness by virtue of section 158 of the act.

There are sections concerning the refreshment of memory of the witness. While section 159 gives the witness the right to ask for production of his statements to refresh his memory at the leave of the court, section 160 gives him the chance to testify for the documents and not the statements in those documents if he believes that the documents were rightly recorded. However, at the same time, the documents used for refreshing memory under section 159 and 160 may be asked by the adverse party to cross-examine the witness upon. Such documents then must be given as asked under section 161 of the act.

Production of documents is an important aspect of examining evidence. Under section 162, a witness summoned to produce a document shall produce it accordingly. However, if there is any objection put to the production or admissibility of such a document, the court has the sole discretion to decide upon such objectionability. Also, under section 163, any adverse party can also ask for the production of documents through notice to another party. When such a document is produced, the party asking for it must provide evidence of it when the party producing it asks for it. However, if such party to which notice to produce a document was sent refuses to produce it, later he cannot use it as evidence without the consent of the other party. While laying down guidelines for criminal trial through a suo-moto writ petition, the Hon’ble Supreme Court of India laid down that “The practice of omnibus marking of Section 164 statement of witness deserves to be deprecated. The relevant portion of such prior statements of living persons used for contradiction or corroboration Under Section 145/157 of the Evidence Act deserves to be marked separately and specifically”.

Lastly, the sections 165 and 166 gives power to the judiciary to ask questions suo-moto to the parties. Under section 165, the judge is empowered to ask at any point of time in the trial, to any party, of any witness or party, about any fact relevant or irrelevant, any question which he may deem fit in order to know the proof of relevant matters in issue. In furtherance, the judge can also order for production of documents. In any condition, none of the parties can object to such orders, nor can they cross-examine any witness answering against questions put under this section. However there are two provisos to this section: firstly, the judgment shall be based on the relevancy of the facts duly proved; and secondly, this section does not authorize a judge to compel a witness to answer what is considered privileged under sections 121-131 or to ask a witness anything improper as construed under sections 148 or 149. Section 166 gives the same powers to the jury or assessors in particular cases but only by leave of the judge. In the case of ‘Ram Chander vs. State of Haryana,’ the hon’ble Supreme Court declared the ambit of section 165 so wide to allow judges to question the witness in order to dispense justice.

Conclusion

There are several types of witnesses in any criminal case. And the number of such witnesses can differ from one to several hundred depending on the circumstances. Such witnesses are to be protected from any unnecessary vexing by any adverse party. Also, they shall be asked questions in order to reach the most justifiable answer to any matter in issue. Witnesses constitute an important part of any criminal trial. And thus, the Evidence law gives such an extensive framework of rules concerning the witness and the procedure to examine them.

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This article is written by Anushree Tadge, a 3rd-year law student of ILS Law College, Pune, she tries to explain briefly what the concept of International law is, what are its two branches, its emergence, the organizations established and a brief interaction between Indian Law and International Law.

Meaning of International Law

According to Jeremy Bentham’s classic definition, international law can be described as a collection of rules governing the relations between different states. It provides normative guidelines for countries along with methods and mechanisms. Initially, International law had a limited scope, it was restricted only to topics concerning war, peace, diplomacy but now it includes questions of human rights, economic, trade, space law, and even international organizations. International law is a legal order and not just an ethical terminology, although International law has been significantly influenced by ethical concerns, particularly human rights

What is Public International Law?

Widely, two international law kinds are accepted, firstly, the Public international law, which deals with the rights and responsibilities that countries possess toward each other. Countries are referred to as ‘states’ in Public International Law. This type of law is applicable to international organizations like the United Nations (UN) and the World Trade Organization (WTO). Public international law essentially governs issues affecting humanity at large, this includes the environment, human rights, ocean, etc.

What is Private International Law?

By the name of it, we can understand, Private international law deals with the relationships between citizens belonging to different countries. For instance, an American man and a French woman were married in America and now live in Quebec. If they want to apply for divorce, the rules embedded in private international law will determine whether they have to go to a US, French or Quebec court to get their status of married negated.

Nature of International Law

International law is an independent system of law and it works differently from domestic systems in a number of aspects. It is important for the states to consider relevant international laws when responding to a particular situation. The rules of international law are generally adhered to and therefore enforcing them by military means or even by the use of economic sanctions is not a well-known practice. The system of ‘this’ law works on the principle of reciprocity as well as enlightened self-interest. States that breach international rules lose credibility in the eyes of other states, creating a prejudice which would be unhealthy for their well being amongst other nations of the globe. This value that this system brings forth the certainty, predictability, and sense of common purpose of all nations as far as the international affairs are concerned. International law provides for a set framework and rules along with procedures for international interactions.

Development of International Law

International Law only affected the principles governing World War, peace issues, trade issues earlier but since the scope has extended so much, organisations like United Nations General Assembly and ICJ are required to handle the disputes affecting international relations between states. This started with the establishment of the General Assembly in 1947 by The International Law Commission so as to promote the progressive development of international law and understand its formal codification. The members of the Commission are extremely relevant to the regulation of relations among different states, they frequently consult with the International Committee of the Red Cross, the world court- International Court of Justice and UN agencies. Often, the Commission is held responsible for preparing drafts on aspects of international law.

Topics concerning international law are prepared by the Commission and transferred to the General Assembly, which convenes an international conference in order to incorporate the draft into a convention. The convention is then proposed such that states are invited to become parties — by virtue of which countries shall formally agree to be bound by the provisions of the conventions. Some examples in sequential order are-

The Convention on the Non-navigational Uses of International Watercourses, adopted by the General Assembly in 1997, for the equitable and reasonable utilization of watercourses common between two or more countries.

The Convention on the Law of Treaties between States and International Organizations or between International Organizations, adopted at a conference in Vienna in 1986;

The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly in 1973;

The Convention on the Succession of States in Respect of State Property, Archives and Debts, adopted at a conference in Vienna in 1983.

Further, the International humanitarian law includes the principles and rules that regulate warfare, also governs the humanitarian protection of civilian populations, sick and wounded combatants, and most importantly prisoners of war. The United Nations has taken a prime role voluntarily to advance international humanitarian law. The United Nations Security Council has also become increasingly involved in protecting civilians in cases of armed conflict, promoting human rights and principle and protecting children in wars.

For Judicial settlement of disputes

International Court of Justice

The most primary as well as apex United Nations organ for the settlement of disputes is the International Court of Justice. It is also known as the World Court. It was founded in the year 1946. Since its establishment, the Court has considered over 170 cases in total, issued numerous brilliant judgments and advisory opinions that upheld the notion of ‘humanity’ before anything else. It is functioned to work in response to requests that are put forward by UN organizations. Mostly all the cases have been dealt with by the ‘Court’, but since 1981 six cases have been transferred to special chambers considering the request of the parties involved in the disputes.

In all the judgments put forth, the Court has addressed international disputes and tried to resolve them, this includes disputes of economic rights, rights of passage, non-interference in the internal affairs of the neighbour states, diplomatic relations, the grievous issue of hostage-taking, the right to an asylum and also ‘nationality’. States have a right to bring such disputes before the Supreme Court and seek an impartial solution to their differences based on the law. Peaceful settlement on questions of land frontiers, maritime boundaries and territorial sovereignty is expected of the Court proceedings and the Court has been very successful in preventing the escalation of disputes

International law and Indian law

International law definitely has an impact on the domestic laws of the country but, it is not considered to become part of any municipal law automatically. Hence, the controversy as to where there is a conflict between domestic law and customary international law, experts believe that the former will prevail. As far as India is concerned, the courts have played an active role in resolving disputes and even in the implementation of India’s international obligations. Cognizance of both treaties as well as customary practices of international law in cases violating human rights or even questions of environmental law has been taken, the most recent example of which is the Kulbhushan Jadhav case. Article 51 of the Charter mandates respect for the international law, although it is not an enforceable Article. Article 253 of the Indian Constitution states exclusive power on the Parliament with respect to the international affairs (issues or otherwise). But the Constitution has no provision aimed at expressly settling the relation and the status of international law in the Indian courts. This “silence” in terms of legislation has given the flexibility and open interpretation to courts to implement international law in a very progressive but at the same time in a measured manner.

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This article has been authored by Ritesha Das, pursuing BBA LLB from Symbiosis Hyderabad. The article aims to outline various spectrums of the Wildlife Protection Act of 1972.

INTRODUCTION

The ecosystem is an entangled network of biotic and abiotic components that are intertwined together.  All species such as plants, animals and micro-organisms falls under the category of biotic elements. The non-living organisms such as soil, water, environment etc, being crucial for the survival of life are the part of abiotic components. Flora and fauna are the most engrossing components among all the biotic elements. In simple terms, the word flora alludes to every plant life whereas the terminology of fauna corresponds to every animal life.

The equilibrium of the ecosystem is at extreme risk with the demolition of forests resulting in numerous natural disasters all over the world. The progressive dwindle of wild animals like Asiatic Cheetah, Indian rhinoceros, pink-headed duck etc elucidates the need of enactment of a stringent legislation for the protection of the wildlife in India.

The Wild Life Act of 1972 was approved in Parliament of India on 21 August 1972 and was subsequently enforced on 9 September 1972. It preserves the specified species of flora and fauna and maintains a web of protected areas which are of ecological significance. The Act is segmented into 60 sections and 6 schedules. According to Section 2 of the Act, ‘wildlife’ includes any animal, bees butterflies, crustacean, fish and moths; and aquatic or land vegetation which forms part of any habitat. So the meaning of the wildlife in this Act is very wide and inclusive of all kinds of flora and fauna.[i] The Wildlife Protection Act 1972 authorizes central and state governments to designate any area a wildlife sanctuary or a national park, or a protected forest. Any commercial development within these protected areas is completely forbidden. It not only facilitates the administration and application of the Act by authorities but also controls the hunting and poaching of wild animals. This act also preserves the listed trees, sanctuaries, national parks and protected areas; prohibits trade or trafficking of wild animals or articles of animals; and other concerns.

The Act underwent through a series of amendments. The amendment to the Wildlife Protection Act in 1982 has incorporated various provisions allowing the capture and transfer of wild animals for the scientific management of the population of animals. The amendment of 1991 contributed to the addition of special chapters dealing with the protection of listed plants and the monitoring of zoos. The needs and interests of tribal and forest communities were also identified and modifications were made to facilitate their welfare. The amendment to the Wildlife Protection Act in 2002 introduced a new chapter to deal with the confiscation of illegal hunting and trade property. In addition, this amendment also established the notion of cooperative management through the Conservation Reserve Management Committee and the Community Reserve Committee.

OBJECTIVES OF WILDLIFE PROTECTION ACT, 1872

The primary objectives of the Wild Life Protection Act of 1872 are:

• To preserve the diversity of the country’s flora and fauna by developing a stable ecological environment.
• To ban the hunting and poaching of wild animals, bird species, etc. by enforcing punishments for abusing the laws and regulations and also to satisfy the various purposes of this Act by adequately regulate the activities of human beings.
• To provide shelter and care for the animals that are not at risk but need safety and security. 
• To protect the specific animals that can are hunted frequently like ducks, deer, etc. The hunter must get a license from the District Officer in order to hunt these species. If the license is granted, the hunter will receive a restricted area for a limited period of time to hunt the animals. Any acts resulting in infringements will amount to cancellation of the license.  
• To empower officers for punishing the guilty person according to this Act.
• Planting trees and constructing safe animal reserves in order to preserve these species in environmental and natural habitats.
• Creation of Wildlife Advisory Boards, the Wildlife Warden and the appointment of members with their duties and powers.
• To endorse the implementation of the UNESCO Man and Biosphere National Component, 1971.
• To allow and regulate the trade and commerce of certain animals by issuing a license to possess, export and transfer those endangered species.
• To impose a ban on trade and exchange of certain protected species.

COMPOSITION OF AUTHORITIES

The authority to appoint the Director of Wildlife Preservation, the Assistant Director of Wildlife Preservation and other officers is vested to the Central government. [ii]The authority to appoint Chief Wildlife Warden, Wildlife Warden, Honorary Wildlife Wardens and other officers and staffs can be delegated to the State government.[iii] The Governments of the State and the Administrators of Union Territories shall constitute a Wildlife Advisory Board.[iv]

• Wildlife Advisory Board

It shall be composed of the minister in charge for forests in the jurisdiction of the State or of the Union as Chairman. If there is no such minister, the Chief Secretary shall be the Chairman of the Board.    The other members shall comprise of 2 members of the state legislature or the Legislature of the Union Territory, the Secretary of the Government of the State or the Central Government, in charge of forests; the Forest Officer in charge of the State Forestry Department; the Officer nominated by the Director of Wildlife Preservation; the Chief Wildlife Officer; State Government Officers not more than 5 and such other persons, not more than 10, who in the opinion of the state government and are interested in the protection of wildlife, including the representatives of tribal. [v]It is mandatory to set up a Wildlife Advisory Board in each of the States and Union Territories.[vi]

The Wildlife Advisory Board was primarily consisted to give recommendations to the state government on the following issues:

• Identifying and maintaining grounds to be designated as sanctuaries, national parks and closed areas.
• The development of a conceptual framework for the protection and conservation of biodiversity and identified plants.
• In the matters pertaining to the alteration of any schedule.
•  In accordance with the steps required for the harmonization with wildlife protection and conservation of the needs of tribals and other forest inhabitants.
• In the matters concerning the protection of wildlife which may be alluded to it by the Government of the State.

PROTECTION OF SPECIFIED PLANTS AND ANIMALS

This Act forbids the aggregation, uprooting, etc of listed the plants. According to Section-17 of Wildlife Protection Act of 1872, no person shall intentionally gather, uproot, destroy, acquire or collect any specified plant from any forest land and area specified by the notification of the Central Government. It also forbids the possession or sale or transfer by way of remittance or transport of any specified plant subjected to the permission of the Chief Wildlife Warden. In accordance with the provisions of Chapter IV of this act, this section is exempted for a member of a scheduled tribe from picking up or collecting or owning any specified plant or part or derivative of it for its bonafide personal use in the district in which he resides.

This act has also forbidden hunting and poaching of wild animals. Any person hunting any wild animal shall be punished with imprisonment for a term of up to three years or a fine which may be extended to Rs. 25000 or both. However, the offence is committed in the sanctuary or national park with respect to any animal listed in schedule 1, the person shall be punished with imprisonment not less than 1 year and with a fine not less than Rs 5000.[vii]

The Chief Wildlife Warden has the discretion to permit the hunting of animals in the following cases:

• If the wild animal has become dangerous to human life or the disability and ailment of the animal is beyond recovery.
• If the wild animal is killed or wounded in good faith of any wild animal in defence of oneself or any other. But it will not immune any person committing any act in contravention of any provision of this Act or of any law or order. For eg, Exerting unreasonable amount of force for killing an animal in absence of necessity.
• For the purpose of education, scientific research, scientific management and manufacturing of medicinal drugs.

NATIONAL PARKS AND WILDLIFE SANCTUARIES

National Parks

•  By the official notification, an area may be declared as a national park by the State government if it recognizes that such area is appropriate for the establishment of a national park and the development of wildlife because of its ecological, faunal, floral or zoological association. The notice will also specify the limitations of the area to be designated a National Park.
• If a zone is to be designated a national park, it shall account for the investigation and assessment of charges and claims in respect of the area concerned. After the expiry of time duration for the claims, if any claims have been made in respect of the premises in question have been disposed of by the Government of the State; all rights and powers over the area or the zone to be deemed a national park shall be conferred on the Government of the State.
• It is not possible to alter the bounds of a National Park unless a resolution has been passed by the state legislature. 
• No individual can destroy or harm or abuse or remove any species of wildlife in the National Park unless he is authorized by the Chief Wildlife Warden. The Chief Wildlife Wardens can issue certain licenses to the individual concerned only if the Government of the State is convinced that such demolition, harm or exploitation is essential for the maintenance and conservation of wildlife in the National Park.
• The livestock grazing in the restricted area of the National Park is not permissible unless the person has the permission to enter such a National Park and is using such an animal as a vehicle.

In the case of Animal and Environment Legal Defence Fund Vs. Union of India, [viii]the petitioners questioned the legality of the awarding of fishing licenses to 305 tribal families in the reservoirs of Pench National Park. However, the Supreme Court adopted a humanitarian approach, bearing in mind economic sustainability and environmental protection. The Supreme Court ordered the forest authorities and the wildlife authorities to take effective steps to protect the environment and to monitor villagers at the same time. The villagers were also directed not to enter other areas other than the reservoir.

Wildlife Sanctuaries

According to Section 18, the State Government has the authority to declare its intention for constituting an area other than areas comprised of any reserve forest or the territorial waters as a sanctuary if it considers that such area is of adequate ecological, faunal, floral, natural or zoological significance for the purpose of protecting, propagating or developing wildlife or its environment. No one is allowed to enter or reside within the limits of the sanctuary other than the public servant on duty except:

• The person authorized by Chief Wildlife Warden or any designated officer to live within the limits of the sanctuary. The Chief Wildlife Warden may grant permission to enter or reside in a sanctuary for the following purposes;
  a) Investigation or study of wildlife and any purpose ancillary
  b) Photography
• Scientific Research
• Tourism
• Transaction of lawful business with any person in the sanctuary.
• The person having the legal right to immovable property within the boundaries of the sanctuary.
• The dependents of the designated officer and also the person passing through the sanctuary on the highway.
•  The dependents of the person who is entitled to real estate or the dependents of a person who stays in the sanctuary. [ix]

The grant of permission could be subjected to other conditions and even to payment of fees under this Act[x].  No person is allowed to place, kindle or leave any fire burning in the sanctuary. Moreover, the dangerous weapons, explosives, hazardous chemicals etc are prohibited in the sanctuary. Damage, demolition, molestation of any wild animal and alteration of the boundaries of wildlife sanctuary are strictly prohibited.

The person residing within the limits of the sanctuary is bound to help in finding the offender, report the death of any wild animal, assist the forest officer or chief wildlife warden or police officer in investigation of the offence and also to take the charge of such an animal if any kind of offence is committed against the act until the Chief Wildlife Warden takes the charge.

In the case of Pradeep Krishen vs. Union of India,[xi] the petitioner challenged M.P government’s order by which authorization was granted to the villagers living near the sanctuaries and national parks to gather tendu leaves through contractors. In the condition of M.P. 11 areas have been declared sanctuaries and national parks covering approximately 12.4 per cent of the total forest cover in the M.P. The petitioner claimed that a number of trees in these areas had been destroyed as a result of the villagers’ entry. The Supreme Court ordered the Madhya Pradesh Government to take immediate action to prevent farmers and tribals from accessing national parks and sanctuaries.

TRADE AND COMMERCE IN ANIMALS, ANIMAL ARTICLES AND TROPHIES

The term trophy means the preservation or retaining of whole or any part of an animal. For example, horn, rhinoceros horn, feather, nail, tooth, musk, eggs etc. Section-39 of the Act specifies that any wild animal other than vermin that is hunted, captured or bred in captivity or found dead or accidentally killed is the property of the State government. Similarly, wildlife articles, specimen or unused trophy, meat obtained from any wild animal, ivory imported into India, the object made from such ivory, vehicle vessel arms, trap or device used to commit an offence and confiscated shall be the property of the State Government.

In the case of Babran Kumawat vs. Union of India[xii] the petitioner was the manufacturer of Mammoth ivory. The applicant was the maker of Mammut Ivory. Throughout Alaska and Siberia, the mammoth species had already died due to climatic conditions. The problem may be regarded as an imported ivory under the 1991 Amendment Act. The Supreme Court ruled that the 1991 amendment restricted all representations of the trade in ivory. It may be an ivory elephant or mammoth ivory. The petitioner can not, therefore, continue to trade in elephant ivory.

• A person has no right to sell or offer to sell any wild animal mentioned in Schedule 1 or in Schedule 2 by way of selling or donation in absence of possession of the certificate of ownership. They shall not yield any article which comprises the whole or any part of the animal or body and should not participate in the taxidermy process unless authorized by the Chief Wildlife Warden.
•  If a person moves from one state to another and obtains by transferring any animal article, trophy or uncured trophy from the state in which he used to reside earlier. This transfer will be reported to the Chief Wildlife Warden or other designated officer whose authority the transition took place within thirty days. No individual should participate in any transfer act or trophy of any animal or animal object without the possession of the certificate of ownership.
• The Chief Wildlife Warden should undergo through a proper enquiry while issuing the certificate and shall investigate the ownership of the previous certificate before issuing it to the new owner. He can also affix an identification symbol on the body of the uncured trophy or animal article.[xiii]

PUNISHMENTS UNDER WILDLIFE PROTECTION ACT, 1872

The offences committed in relation to any animal listed in Schedule I or Schedule. II shall be punishable with imprisonment for a term which shall be more than one year and may extend to six years which may include fine of minimum five thousand rupees. The punishments for the offences related to possession of the animal article, trophy, hunting or altering the boundaries of a sanctuary or a National Park etc remains the same unless a subsequent offence of same nature has been committed. Under such subsequent offences, the minimum term may extend to two years and the amount of fine shall not be less than ten thousand rupees. The punishment for infringing the provisions of ‘Prohibition of Trade or Commerce in Trophies, Animal Articles and Animals’  shall be imprisonment for a minimum term of one year which may extend to seven years and also an imposition of a minimum fine of five thousand rupees.

The punishment for teasing, molestation, injury or disturbance to the animals shall follow an imprisonment for a term which may extend to six months or fine which may extend to two thousand rupees, or with both. It should also be noted that in case of a subsequent offence, the term of imprisonment may escalate to one year or the fine may extend to five thousand rupees.

CONCLUSION

India is a land of abundance of natural resources with an immense variety of flora and fauna calling for preservation and safeguard. The Wildlife Protection Act of 1972 was implemented for the accomplishment of the same purpose by serving a security blanket against illegal poaching, shooting, wildlife trade and various plant species in various flora and fauna. This Act also empowers the State as well as the Central government to declare any area as a Sanctuary or National Park. Various restrictions are imposed on any action in these areas and officers are assigned to oversee the operations in those areas. The implementation of this act has helped in stabilizing, preserving and protecting the wildlife.

---

REFERENCES

[i] S.2, Wildlife Protection Act 1972

[ii] S.3, Wildlife Protection Act 1972

[iii]S.4, Wildlife Protection Act 1972

[iv]S.5 ,Wildlife Protection Act 1972

[v] S.6, Wildlife Protection Act 1972

[vi] (2011) 7 SCC 338

[vii] S.9, Wildlife Protection Act 1972

[viii] 1997(2) SCR 728 

[ix] S.27, Wildlife Protection Act 1972

[x] S.28, Wildlife Protection Act 1972

[xi] AIR 1996 SC 2040

[xii] IR 2003 SC 3268

[xiii] S.48, Wildlife Protection Act 1972

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Nikhilesh Koundinya is a student of Symbiosis Law School, Pune. In this article, he has focused on the offence of adultery and has analyzed the landmark case of Joseph Shine v Union of India. He has gone onto discussing whether adultery violates articles 14 and 15 of the constitution and has concluded with critical analysis of whether adultery fulfils the constituents of being a criminal offence.

INTRODUCTION

In the landmark judgement of Joseph Shine v Union of India^[1] adultery was struck down as unconstitutional. Due to this decision section 497 and section 198(2) were struck down from the Indian Penal Code and Criminal Procedure Code respectively. This being the landmark judgement, the practice of adultery has been questioned many a time in the past. Thus, before we can analyze the particular case passed by the apex court, we must study the history and case laws with regards to adultery.

Religious Views on Adultery

When we make an observation of the past, we realize that almost all ancient religions punished the practice of adultery and termed it as a criminal offence for which both the adulterer and the adulteress could be held liable under the law. In fact, under the Hammurabi’s code death by drowning was prescribed for committing the sin of adultery and the punishment extended both to the husband and wife.

If we refer to the famous king’s emperor August’s daughter committed the act of adultery and the king pronounced a punishment of banishment from the kingdom. In fact, under his rule when two people committed the sin of adultery, they were both sent to different islands and a part of their property was seized as punishment.

In Judaism, in the ten commandments that were addressed by god to Moss the seventh commandment stated that “Thou shalt not commit adultery”.^[2] It was said that the person who committed adultery would face the death penalty as the punishment.

In Christianity, the practice of adultery was condemned and the people who practiced adultery were looked down upon and were guilty of committing a sin. Jesus himself stated that a man incurs sin as soon as he looks at a woman with lustful intent.^[3]

In the widely popular religion of Hinduism, Manu Smriti one of the most important books on Hinduism stated that those who are addicted to intercourse with wives of other men must be punished to cause terror and later must also be banished for the acts committed. This was enumerated under chapter 4.134 and 8.352 of the Manu Smriti.

Lastly, Islam in An-Nur namely, verse 2, chapter 24 of the Qur’an says that when somebody commits the act of adultery, both the adulterer and the adulteress must be punished with hundred stripes for committing the act and no innocence must be shown on them.

Criminal Law in India

The first draft of the Indian Penal Code (IPC) which was released by the Law Commission of India in 1837 did not have adultery included as an offence. The framers of the penal code were of the view that criminal code should not intervene with private matters in a matrimonial home. But the majority members of the committee felt that adultery should be recorded as an offence to provide legal recourse to people. The debate between Lord Macaulay and the committee was recorded in “Note q” of “a penal code prepared by the Indian law commissioners”.^[4]

In June 1971 the 42^nd report of the law commission of India^[5] analyzed various provisions of the Indian Penal Code and made recommendations for change in certain provisions. The commission especially recommended that an adulterous woman must be held equally responsible and should be held liable for prosecution. This recommendation was not given any effect. In March 2003, the Malimath committee sat to discuss reforms in the criminal justice system and made the following recommendation to the offence of adultery:

The committee, therefore, suggests that section 497 of the Indian Penal Code should be suitably amended to the effect that “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery….”^[6]. Though the recommendations were taken up to the law commission of India no action was taken on the following.

3-Judge Bench Verdict

 A person named Joseph Shine, who was a non-resident Keralite filed public interest litigation (PIL) under article 32 of the constitution. The petition challenged the constitutionality of section 497 of the Indian Penal Code and section 198(2) of the criminal procedure code.

The two sections involved in the case state the following:

Section 497 of the Indian Penal Code

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.

Section 198(2) of the Criminal Procedure Code

For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

The petition for striking the above mentioned two sections was first heard by a 3-judge bench of the apex court who held that:

1. Section 497 of the Indian Penal Code granted relief to wife by treating her as a victim. When the offence is committed by both the parties, one is held liable whereas the other is held as a victim which is against the notion of equality. 
2. There is an absence of gender neutrality in the provisions involved. This can be represented by the fact that only one gender is treated as the victim or the fact that only the husband can be aggrieved by the offence committed.
3. Under the criminal procedure code, the fulcrum of the offence is broken down when the consent of the husband is established. The fulcrum is broken because if a husband consents to the act then adultery isn’t established in that particular instance. This means that the decision is taken by the husband rather than the wife. This establishes subordination of a woman which goes against constitutional principles specifically article 14 and 21.
4. Due to all these factors, we can establish that the provision is archaic and hence referred the judgement to a constitutional bench to evaluate the law.

Previous Indian Case Laws

Before the bench could analyze the provisions and pass a judgement it looked into the previous cases with regards to adultery in India:

Yusuf Abdul Aziz v State of Bombay^[7]

The appellant in the present case was being prosecuted under section 497 of the Indian Penal Code. The question that was before the court in the present case was whether section 497 was against articles 14 and 15 of the constitution and can the husband be held liable?

The court stated that per se the section wasn’t violative of the said articles and even if it was the husband would be convicted under the section because article 15 clause (3)^[8] gives right to the state to make special provisions for women and children.

Sowmithri Vishnu v Union of India and another^[9]

The petition was raised by article 32 of the Constitution challenging the validity of section 497 of the Indian Penal Code. The court in this case made the following observations:

1. Under section 497 of the code, the husband has the power to prosecute the adulterer who committed the act with his wife. But the section does not provide for relief to a wife to prosecute the women who committed adultery with her husband.
2. The section does not take into consideration a situation where the husband commits adultery with an unmarried woman. Hence the section also acts unequally because with a married woman the offence is established but an unmarried woman there is no offence of adultery committed.
3. As observed from these two points we can clearly point out the flagrant instance of “gender discrimination” and “legislative despotism”. It clearly indicates the fact that a woman is like chattel (property) for a man.
4. But the section somewhere also favours woman because the section says that the act can be only committed by a man. Thus, even though the woman may have been an abettor she is still held innocent and is represented as a victim.
5. Though the court made the following observations it dismissed the petition due to facts being misrepresented.

V.Revathi v Union of India^[10]

This case took a different approach to the previous two cases by stating that in the Indian Penal Code the punishment for adultery is given to the person who breaks the matrimonial home of the husband and wife. Thus, the offence neither gives the husband or wife to prosecute each other under the garb of criminal law. Hence the court under this judgement held that the provision did not make any discrimination and hence isn’t violative of an individual’s fundamental rights.

W.Kalyani V State Thro Inspector of Police and another^[11]

The court in the present case was not evaluating the constitutionality of section 497 of the penal code. In light of the facts presented before the court, it made the following observations:

1. The provision clearly states that if the husband under the code accepts the act then it does not classify as an offence. This represents the woman as the property of the husband and does not give her an identity of her own which is violative of our constitutional principles.
2. The provision clearly states that only a man who has committed the offence can be proceeded against which is again violative of the principles of equality and leads to hostile discrimination of one gender.
3. A wife cannot be proceeded against under this offence. Even if it is proved that the wife was an abettor still, she is treated as a victim in any circumstance. This is constitutionally wrong because primarily it treats woman as a victim showcasing that she is weak and did not want to indulge but was forced. Also, this is against gender neutrality because if the man is punished for committing the same act, a woman should also face the same wrath of the law.

CONSTITUTIONAL BENCH ANALYSIS

Article 14

The petitioners in the present case stated that the provision in itself is against article 14 of the constitution. The two ways to establish that the provision does not meet standards of the article is manifest arbitrariness and fails to achieve rational nexus. Article 14 as a concept is made up of 2 principles:

1. Equality before the law which was borrowed from the United Kingdom
2. Equal protection of laws which was taken from the 14^th amendment of the United States of America

In the case of S.G Jaisinghvi v Union of India^[12] the court made a statement which stated that “if action is found to be arbitrary and therefore unreasonable it would negate the equal protection of the law under article 14 and would be struck down.” The constitutional bench in the present case checked for manifest arbitrariness with the section to check whether it violated article 14 of the constitution:

1. The provision mainly treated women as subordinate to men as it laid down that when a man consents to another man having sexual intercourse with his wife the act will not be considered to be an offence.
2. This act establishes social dominance by one gender over the other. It treats the woman as the property of the husband. In a society where we aim for social equality the provision deviates by being beneficial for one side but injuring the other.
3. The provision states that when a man commits the act of adultery with a married woman, he can be held liable by his wife. But when the same man commits the act of adultery with an unmarried woman, he can’t be held responsible. This is itself inequality as on some instance he can be held liable whereas in some other instance he is free and cannot be convicted.
4. Coming to section 198(2) of the Criminal Procedure Code, only a man can be considered to be “aggrieved” under the garb of this section. The section does not include the wife or the couple’s relatives itself.

Thus, the court stated that the provision was manifestly arbitrary due to the contentions listed above and thus was against article 14 of the constitution. The court also stated that when the provision is viewed it protects the woman and at the same time fails to protect the woman. Hence there is no logicality that arises from the provision and thus it even fails to achieve its rational nexus.

Article 21

The term “life” under article 21 includes a life of dignity and not just an animal life.^[13] Thus the court in the present case viewed the article for violating the dignity of a woman. There were various judgements that the bench took into consideration:

State of MP v Madanlal^[14]

The court in the present case stated that the dignity of a woman is part of her non-perishable and immortal self and no one should ever think of painting it in clay.

Pawan Kumar v State of Himachal^[15]

A woman has her own space as a man has. The right to live with dignity is guaranteed under article 21 of the constitution and cannot be violated by indulging in eve-teasing which was the main contention in this case. The court also made a key observation about the present conditions and stated that in a civilized society like our male chauvinism has no room. The court was indicating to the fact though in olden times male patriarchy was the system accepted and observed in modern times’ such behaviour has no place in our society.

R v R^[16]

This was one of the landmark judgements by the common law courts where they stated that in the 21st-century marriage is between equals and no longer one in which wife is subservient and thus treated as a chattel by the husband.

Voluntary health association of Punjab v Union of India^[17]

The court stated that women have to be regarded as equal partners in the lives of a man and it has to be borne in mind that they have an equal role to play in society. This decision shows the progressive mindset that entered the judiciary’s mind about 10 years ago where the role of a woman and her importance started increasing and the courts started giving recognition to women’s dignity by structuring laws and provisions that uplifted the status of a woman in society.

Charu Khurana and others v Union of India and others^[18]

The court in the present case in its own poetic way said that dignity is the quintessential quality of a personality. A human frame always desires to live in the mansion of dignity for it is a highly cherished value. The court wanted to convey that dignity as a concept is extremely important to every individual and taking it from one and retaining it with the other is against the provisions of law. Every individual in his own way must be given the dignity he/she deserves.

K.S Puttuswamy and another v Union of India and others^[19]

The landmark judgement on privacy also had an element of describing dignity in the modern society. The judgement said that dignity as a constitutional value finds expression in the preamble. Reflections of dignity are found in lamps of freedom (article 19) and right to life and liberty (article 21). This proves that the court even earlier had recognized that dignity for an individual is as important as breathing because without both these characteristics the individual loses the value of being a human.

National Legal Services Authority v Union of India and others^[20]

The judgement that recognized the rights of transgenders stated that the basic principle of the dignity and freedom of the individual is common to all nations. India being a democracy requires the people to respect and develop dignity amongst one and all. This judgement lays down the foundation for treating each and every human being with dignity. This is an important facet to give respect to all citizens of a free democracy.

Common Cause (A registered society) v Union of India and another^[21]

This judgement provided the most apt definition of human dignity. The judgement stated that human dignity is beyond definition. The judgement paid attention to the fact that dignity is not a stagnant concept. Though at a point of time dignity was merely accustomed to the male gender in the 21^st century the definition must adapt to every gender as today all genders have a right to live independently with dignity.

Thus, the constitutional bench held that with regards to the earlier judgements the term dignity has been extensively defined and deliberated upon. When it is put into the current scenario the court observed that in the provision it has been stated that any act by a third party if accepted by the husband will not constitute the act of adultery. Hence the court stated that this provision made woman sound like a commodity and lowered her dignity in the eyes of society as she would always require her husband’s word to treat adultery as an offence or not. Hence the court came to the conclusion that the provision also violated article 21 of the constitution.

Hence the court in this judgement struck down adultery which is section 497 of Indian Penal Code and section 198(2) of the criminal procedure code. All the earlier decisions made in this regard were overruled.

CRITICAL ANALYSIS

The question to be answered by the author in this section is whether the offence of adultery really constitutes a criminal offence?

The concept of adultery has been time and again debated by the courts. Most of the jurists and lawyers have held that adultery is associated more towards the institution of marriage than of crime. Marriage in the modern context is treated as a social institution and the parliament has made all efforts to preserve the dignity of a woman in marriage by promoting laws and provisions which protect her. Section 498-A of the penal code and Domestic Violence Act are only some of the notable provisions under law to protect women.

Before we discuss whether adultery constitutes a criminal offence, we must look at the definition of crime as stated by Halsbury laws of England and Blackstone:

Halsbury laws, 4^th Edn, voll.11, P.11

Crime is a wrong which affects the security or well-being of the public generally so that the public has an interest in its suppression.

Blackstone

A crime is an act committed in violation of public law.

Thus, we can clearly observe from the definitions above that crime leads to the injuring the well-being of the society and affects the public order that exists. When it comes to cruelty and harassment of course the law enters the private realm of a marriage but adultery as a criminal offence does not harm the public at large. Hence equalizing it with domestic violence and cruelty would be a wrong analogy to draw. As stated above the state is forced to enter in the cases of violence or harassment because the families and relatives of the individuals are also involved and affected. But in purely the law context in adultery only the two people in a relationship and the third party are present. Hence if the court tries to enter this realm also then there will be no privacy left which is a fundamental right to privacy.

The legislature’s rationale behind the offence is that, the state expects two parties to be cordial with each other and live together without any problem. When a problem arises because of adultery the party may file for divorce under a civil offence and get retribution also. But attaching a criminal notion to the offence would go against the rationale of the notion. As stated by Edmund Burke “a good legislation should be fit and equitable so that it can have right to command obedience.” In fact, in countries such as China, Japan, Australia, Brazil and most European countries adultery isn’t a crime anymore because of the reasons stated above.

From what we have seen above we can conclude that adultery has all features of an offence but the features resemble a civil and not criminal offence. Hence the court also has made adultery as a ground for divorce.

---

^[1] WP (Crl.) 194/2017

^[2] 20:14 King James version

^[3] 5:27-28 King James version

^[4] A penal code prepared by the Indian law commissioners, (1838), notes on Lord Thomas Babington Macaulay, Note Q

^[5] Available at http://lawcommissionofindia.nic.in/1-50/report42.pdf

^[6] 16.3.2 paragraph of the Malimath report

^[7] AIR 1954 SC 321

^[8] Nothing in this article shall prevent the state from making special provision for women and children

^[9] AIR 1985 SC 1618

^[10] (1988) 2 SCC 72

^[11] (2012) 1 SCC 358

^[12] (1967) 2 SCR 703

^[13] Budhadev Karmaskar v State of West Bengal, Criminal Appeal No. 135 of 2010

^[14] (SLP (Crl) No. 5273 of 2012)

^[15] (SLP (Crl) No. 8998 of 2016)

^[16] [1991] 4 All ER 481 at p. 484

^[17] (2013) 4 SCC 1

^[18] (2015) 1 SCC 192

^[19] (2017) 10 SCC 1

^[20] (2014) 5 SCC 438

^[21] (2018) 5 SCC 1

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This article is written by Sharat Gopal, studying BA LLB in Delhi Metropolitan Education. The Indian Contract Act of 1872 is a codified law which deals with contracts. Before discussing who all can enter into a contract, it is important to discuss about contract law and its provisions.

Indian Contract Act, 1872

Definitions   

Section 2 of the Indian Contract Act, 1872, gives the definitions of certain terms, which are important for understanding the law of contracts.

1. Section 2(a) – This clause explains what a proposal is. It states that, when one person expresses his willingness to do or abstain from doing something, to another person, with a view of getting assent from that person on the particular act or abstinence, this is known as making of a proposal.
2. Section 2(b) – This clause explains what a promise is. It states that when the person to whom the proposal is made, accepts the proposal and gives his assent on the proposal, then that proposal becomes a promise.
3. Section 2(c) – This clause states who is a “promisor” and who is a “promisee”. It states that the person who makes the proposal is the “promisor” and the person who accepts the proposal is the “promise”.
4. Section 2(d) – This clause explains what consideration is. Consideration that the benefit that promisee gets for accepting the promise.
5. Section 2(e) – This clause explains what an agreement is. It states that every promise and set of promises, with consideration for each, is an agreement.
6. Section 2 (h) – This clause states what a contract is. It states that every agreement, which can be enforced by the law, becomes a contract.  

These are the terms defined under section 2 of the Indian Contract Act, 1872.

How is contract made?

Now for a contract to come into existence, certain essentials must be fulfilled. These essentials are-

1. Now the first and the foremost step to come into a contract is intention. Both the parties must have an intention to come into contact. It is the most important factor for the contract.
2. The second essential is making an offer. One party must make a proposal to another party for doing an act or abstain from doing an act. The proposal has been defined above.
3. The third step is acceptance of the proposal made by the promisor. Once the proposal is accepted by the promisee, the proposal becomes a promise.
4. Now, this acceptance must be done within a specified time limit.
5. This acceptance must be communicated to the promisor.
6. Now, this promise must have a consideration with it. Now with consideration to the promise, the promise becomes an agreement.
7. Now, this agreement must be enforceable by law. When this agreement becomes enforceable under law, it becomes a contract. There cannot be a contract formed for an unlawful event.

Parties who can enter into a contract

Section 11, of the Indian Contract Act 1872, explains who all can enter into a contract. It states that every person can enter into a contract that is-

1. A person who is major by age according to the Indian Majority Act, which is 18 years of age.
2.  A person who is of sound mind.
3. A person who is not disqualified by law for coming into contracts.

According to the Indian Contract Act, 1872, only the above-mentioned persons can enter into contracts.

Non-competent parties entering into contracts-

Minor

Contract with a minor (below 18 years of age) – Any agreement made with a minor will be void-ab-initio or void from the beginning itself. According to the Indian Contract Act, a minor cannot enter into contracts; therefore, any agreement made with a minor cannot be enforced with law.   

Mohori Bibee v. Dharmodas Ghosh was a landmark case held in 1903 for the matter of child entering a contract. This case held that any agreement with a minor (below 18 years) will be void-ab-initio. Privy Council held that according to section 10, an agreement with a child cannot be enforced.

Consequence of coming into an agreement with a child

1. Ratification – An agreement with a child (18 years of age) cannot be ratified even after the child becomes a major as the agreement made with a minor is void from the beginning itself.
2. Estoppel- If a child (below 18 years of age) misrepresents his age and induces a person to enter into a contract, and then also the minor cannot be held liable for it. There cannot be estoppel against a minor.
3. No performance- As contact with a minor is void, he cannot be asked to for specific performance.

Exceptions

If the contract is made for the benefit of the child, then such a contract is valid and enforceable under law. There also few essentials for this too-

1. Doctrine of Restitution– Section 33 of the Special Relief Act of 1963, states that even the court cannot compel a minor to restore the property, until and unless the property is in recoverable position or the property is in the possession of the child.
2. Necessary essentials – The person supplying basic necessities like food, water, shelter, clothes etc, to the child is entitled to get compensation out of the properties of the child. The provided essentials must items which are required for survival and it should only be provided when the child does not have sufficient supply of it.
3. Minor as Partner– A minor cannot be made a partner in a partnership firm, but he can be made a beneficiary of the partnership firm. Section 30 the Indian Partnership Act of 1932, states this.
4. Minor as an Agent– A minor can be an agent, but he won’t be liable for his acts.

In the case of Suraj Narain v. Sukhu Aheer it was held that a contract made with a child cannot be ratified and in the case of Kuwarlal v. Surajmal it was held that for the supply of necessities to a minor, the person is entitled to get his compensation from the minor’s property.

Person of Unsound Mind

Section 12 of the Indian Contract Act, states that a person is said to be of sound mind if, at the time of making the contract, he is capable of understanding the contract and able to give a rational judgement on its effects.

It also states that person can enter into a contract, if-

1. The person is usually of unsound mind but occasionally become sound mind. In this case, he can enter into a contract during the time when he is of sound mind.
2. The person is usually of sound mind but occasionally become unsound. In this case, he can enter into a contract during the time when he is of sound mind.

From the above explanations, the unsound mind can be classified into 3 types-

1. Idiot
2. Lunatic
3. Intoxicated person

Idiot– These are the people who are incompetent to their thinking capacity and cannot make rational judgements. They don’t have the capacity to understand what is right or wrong. They are not considered as a rational person. They cannot enter into contracts.

Lunatic– These are the people who are not completely or permanently unsound. They come to their senses during certain intervals of time. They are allowed to enter into contracts when they are in their senses and are capable of using their thinking capacity.

Intoxicated person– These are people who are under the influence of drugs and alcohol. They have the same status as a lunatic person. They can enter into contracts while they are not intoxicated and are capable of using their thinking capacity.

People Disqualified by Law

Section 11 of the Indian Contract Act, clearly mentions that a person who is disqualified by law cannot enter into a contract. The people disqualified by law can be classified under-

1.  Alien enemy
2. Foreign sovereign
3. Convict
4. Insolvent

Alien Enemy– A person who is an outsider to our country and our country is at war with that person’s country, he is an alien enemy. A contract with such a person can only be made with the permission of the central government.

Foreign Sovereign – No person can enter into a contract with a foreign sovereign without the permission of the central government. Only after the permission of the central government, it becomes enforceable in Indian Courts.

Convicts– Convicts cannot enter into contracts with other people during his time of imprisonment. But if the central government allows, then he can enter into contracts.  

Insolvent– A person who is declared insolvent by the court cannot enter into a contract.

Conclusion

There are certain essentials that are necessary for entering into a contract. There are certain people who cannot enter into a contract and if they form an agreement it won’t be enforceable under the law until and unless it falls into the exceptions discussed in the above article. For a lawful contract to come into existence, it is important that all the essentials of a valid contract are fulfilled.

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The author i.e. Aviral Shrivastava is a first-year student of the Institute of Law, Nirma University. This article is being written with the view to erase the ambiguity regarding the nature of the constitution and is being illustrated in the simplistic view possible.

INTRODUCTION

India’s constitution has an illustrative history where it is described as a union of states, a Sovereign, Socialist, Secular and Democratic Republic with a parliamentary form of government and this parliamentary form of government which the constitution envisages is considered federal in structure with unitary features. It is the precedent or the foundational law of the country which ordains the fundamental principle on which the government (or the governance) of the country is based. It lays down the framework and principle functions of various organs of the government as well as the modalities of interaction between the government and its citizens.

Sudden discrepancies have aroused with regards to the nature of the constitution in the contemporary scenario where questioning relating to the true federalism is taking place. Though the Indian Constitution is quasi-federal in nature i.e. federal in structure and unitary in spirit but this notion has been slightly attacked when the pillars of federalism have started to vanish where the unitary spirit has overlapped the federal structure and this picture has raised the questions for the existence of federalism in India.

The thought of federalism is first to be surely known as it expresses a sort of government wherein the force is partitioned between the Centre and the corresponding states and which shows polarity or incongruity with a unitary government, where a balance is being implemented between the centre and state to cope up with the federal spirit of the

Solidly, in federalism, there is a two-level of Government with all-around doled out forces and capacities. The Central and the State governments work in coordination successfully keeping up parity and simultaneously acting autonomously. Consequently, this government political structure gives an established arrangement in keeping up solidarity and decent variety.

Federalism In India

While concerning the presence of Federalism, the essential substance which charms its place of presence is the way that federalism requests for the constitution of a country to be Suprema Lexa i.e. where it is considered as the incomparable rule that everyone must follow and its last translation is vested in the hands of an autonomous and solid court which is settled under the Article 131 of the Constitution of India which ensures the matchless quality of the constitution by shielding the balanced division between the centre and the states from the infringement from the unitary governments which is the most fundamental part for keeping up the bureaucratic standard as this pre-eminent power helps in administering the harmony between the centre and the states and along these lines building up an ideal request in the general public and furthermore for this situation the intensity of legal audit should be viewed as which sets up an equalization of forces between the centre and the states in the endeavor to forestall the upsetting of forces by any of the two.

It is well being noticed that the psychology behind federalism is a craving for an association without a unitary structure which is depicted by DICEY speaking to the unity of a state and the separability of its units yet this is no country on the world which totally satisfies the essential precincts of federalism.

It is relevant to take note of that in a nation there ought to be a harmony between the hypothesis and the use of law where the constitution goes about as the hypothesis and the government goes about as the application of law a few nations may have a federal constitution and some may have a federal government and accordingly, it brings a point that to decide the federal quasi-federal and non-bureaucratic nature of the nations it gets basic to watch or observe the federal formal constitution as well as its training is required to be found out.

With regards to India, it is important to note that it isn’t totally federal however having a unitary column installed in it where the conspicuousness has been given to the Union Governments and the division between the central governments and the states governments is appropriately adjusted by the text of the constitution where the constitutional provisions in India on the subject of the distribution of legislative powers regarding the matter of conveyance of federal powers between the Union and the States which are characterized under a few articles; the most significant being explicitly under articles 245 & 246 of the Constitution of India.^[1] The Seventh Schedule to the Constitution of India characterizes and indicates the portion of forces and capacities between Union and States. It contains three lists; i.e. 1) Union List, 2) State List and 3) Concurrent List.^[2]

Another fact which should be referenced is that due to these provisions the central government just as the state governments go about as free and juridical character which is corporate in nature and are given entire forces as for administration and legislation as indicated under the constitution where Article 245(i) comes to the scene which expresses that the Parliament can “make laws for the entire or any piece of the domain of India” and the state councils may correspondingly “make laws for the whole or any part of the territory of the State”,^[3] where the union is given powers under the Union List, states under the state list and thirdly Concurrent list where the centre and the states both are given the simultaneous jurisdiction and thus our nation follows the substance of federal principle with respect to the division of forces.

Another fundamental attribute to be noted here is that neither the centre nor the states have the ability to change or alter the provisions relating the union and the state’s division i.e. unless a particular majority is the available amendment couldn’t be validated just when as determined under Art. 368 of the Constitution of India in regards to the Amendment methodology where two-third of the majority has been proposed by the procedure for the ratification.

Where in instances of serious issues in the states if the country as in India has the provision to coordinate in such a circumstance by the method of interstate disputes resolution rather the Centre surpassing the constrained powers of the state yet by the interstate coordination and participation where the balance between the centre and the states are directed by shared acknowledgement or mutual recognition where under the Articles 261, 262 and 263 an Interstate committee has been set up concerning build-up common collaboration i.e. mutual cooperation and to support solidarity and decent variety and cop up with a significant prerequisite of a federal Constitution.

Reasons behind ambiguity in the federal structure

Seeing the fundamental federal feature of our constitution something else is likewise being noted in the present contemporary situation which as political improvements rotates around the Citizenship Amendment Act and the National Register of Citizens (NRC) have outlined a portion of the significant breaks in the federalism include where the forces and the privileges of the states are at risk.    

With the introduction of outdated and unconstitutional rules, this principle has been abused as banning the collective assembly of more than four people shutting down the Internet in five states monitoring the students’ and young people’s social media activity; the incarceration of minors and the attacks on students and the young people damaging libraries in colleges have created a modern notion of the constitution in which certain obligations and unjust rules are imposed on states that have seriously eroded the federal pillar as this new image has shaken the equilibrium between the centre and its relationship between the state and which has not been officiated now and this has strongly been in derogation with Art. 245 and Art. 246.

Penal sanctions are also placed if the States are unable to comply with the Union’s clear and effective guidelines pursuant to Articles 256,257,353 and 360, which also contain emergency provisions, and if there is a violation on the part of the states, there are certain punishments which are formulated and these laws put greater weight on the side of the central government as compared with the states.

This causes a tussle between the state and the centre as could be illustrated as a fight between the Delhi Government and the Union governments where the federal structure could be well questioned as to the powers of the union government oversides or offsets the powers of the Delhi Government. And this violation of constitutional rights and values has also troubled the federal spirit where the independence of the states is not respected and is in contravention of the text of the constitution.

The law is also null and void by observing Article 13(2) which states that the State shall not make any law which removes or abbreviates any of the rights guaranteed under Part III of the Constitution, and to the extent of such contravention.^[4] It is well being noted that such a provision is not being gratified in the present scenario where the nature of the constitution is somewhat moulded so as to have a solid unitary structure but that is not giving the same independent powers to the state thus affecting the federal pillar of our democracy. Another important point to note is that Federalism specifies the point of equal status that substantiates the equal opportunities for the states as well as the centre, imbibing the legal and corporate status without any kind of the inequality present in them. Indians were once in many scholarly editions described as Homo Hierarchicus, a species of human who most intensely practised inequality,^[5] where there should be equality if not absolute but atleast there should be a balance in the powers between the centre and the state.

But observing the contemporary scenario seeing the new ruling government there is a clear observation that the laws made by the centre clearly support themselves rather than the state itself where the laws like CAA, NRC and NPR are without proper observance of the rights of the people.

Conclusion

It would be rightly concluded that the federal nature in our country is only present theoretically in our constitution and practically this is not followed by the governments because our unitary sphere is taking the larger part of the legislations in many sectors and thus causes the state to become dependent on the centre which snatches away their independence. It is also correctly stated that “our constitution will be both unitary and federal according to time and circumstances” and it, therefore, should be properly emphasised that, while the essence of the constitution is declared to be federal and unitary i.e. it is in fact quasi-federal which could also be substantiated as federal in structure and unitary in spirit.

Though it is being affirmed that the nature of the constitution is quasi-federal i.e. partly federal in nature but in the contemporary scenario it is pertinent to note that the federal pillar of our democracy is being shaken where the states’ rights are not being respected and they are trapped in a web of centres flawed laws which are in derogation with many of the human rights of an individual and the centre is playing a tyrannical role where the state’s recognition is not respected.

In the current pandemic situation, only a federal democracy could be able to cope up with such a situation as the proper relationship and a proper balance between the Centre and state relations is a very essential feature which needs to be noted as when such balance exists it definitely helps to make the implementation of such rules by the subjects of the state i.e. the citizens more suitable and apt.

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^[1] SEVENTH SCHEDULE TO THE CONSTITUTION OF INDIA, WIKIPEDIA.

^[2] “SEVENTH SCHEDULE”. www.constitution.org.

^[3] India Const. art. 245 cl. 1.

^[4] India Const. art. 13 cl. 2.

^[5] The Guardian view on India at 70: democracy in action.

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ABOUT THE ORGANISER

IMS Noida, established in 1998, is a premier institute known for its academic excellence and value-based education. It caters to both fresh graduates seeking world-class education. IMS also has collaborations with several Universities overseas and seeks to imbibe a global mindset in its students. Established in 2004, in Sector-62, Noida, IMS Law College, Noida runs under the auspices of IMS Society. The Big Brands Research Academy conferred IMS Law College the Best Law College in Delhi-NCR. The College is approved by Bar Council of India, recognized by University Grant Commission (UGC) and affiliated to the Chaudhary Charan Singh University Meerut.

ABOUT THE COMPETITION

Nayi Pehal is organizing this competition through online platforms, keeping in mind the COVID-19 pandemic. The topic of the competition is also relevant to the current circumstances, which is as follows:

“भारत में निरंतर तालाबंदी ने छात्रों सहित समूची शिक्षा व्यवस्था को अपूरणीय क्षति पहुंचाई है।” “The continuous lockdown in India has dealt irreparable damage to both students and the entire education system.”

We hope that through this platform, students get another activity to exercise their brains and maintain the spirit of education even when everyone is locked in their homes. Eligibility Anyone who wishes to participate is eligible to take part in this competition. Language This is an online bilingual debate competition.

The medium for the debate shall be either Hindi or English. Hence, the participants can use either language but must stick to one language and not switch between them.

PRIZES AND PERKS

1st prize: Rs 1100/-

2nd prize: Rs 550/-

Popular Debater: Rs 550/-

First and second prize will be awarded based on the marks of the judges.

Popular Debater will be decided based on the popularity of their video on social media.

One like will earn one mark. Cash prizes will be given immediately via online transfer.

Perks:

1. First 50 participants will get discount of Rs 500/- on a course on Memo Pundits

2. 15 per cent off in online courses by katcheri.in (To all the participants)

3. 40 per cent off in publication fee with JLSR journal (ISSN(O): 2582-306X)

RULES AND REGULATION

1. Speaking Time is 3 minutes. On exceeding the time limit, marks may be deducted or the entry may be disqualified.

2. The format of entries will be in the form of pre-recorded videos (mp4 format)

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This article is written by Deepika, pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this article concept of Judicial separation and difference between divorce and judicial separation has been discussed.

Introduction

Marriage, whether considered as a sacrament or a contract gives rise to a status. It confers the status of husband and wife on parties to the marriage. But merely getting the status of being husband or wife doesn’t make the marital life happy. A happy marital life is a result of unconditional love, faith, belief, devotion, sacrifices and determination between couples who desire to stay together in every phase of life. When the spouses are unable to make their marriage blissful by failing in terms of devotion, sacrifices, faith, understanding etc.,  both the spouses start experiencing lack of interest, mistrust, misunderstandings, selfishness, ego problems, differences, etc. amongst one another and unfortunately, this results in the couple filing for Divorce. Here the law believes in giving an opportunity to the couples for reconciliation by means of Judicial separation rather than closing the doors for always by means of divorce.

Judicial separation

Judicial separation is a legal process in which a married couple facing troubles in their marital life are separated by court order,  despite being legally married. It is often called divorce from bed and board.  But during this period they have the same status as husband and wife.  The court gives an opportunity to the parties for introspection about giving a chance to their marriage. The parties of the marriage living separately by the order of court get sufficient independence and time to rethink about giving a chance to their marriage by resolving their disputes.

What is the purpose of a judicial separation?

Judicial Separation is a step just below to divorce. The purpose of judicial separation is to provide an opportunity for the parties to reconcile their difference by giving adequate space and independence for introspection.

Nature of Judicial separation

judicial separation is one of the matrimonial reliefs provided under the personal law statues. Unlike divorce it doesn’t put an end to the marriage; the legal relationship of husband and wife subsists and the parties can’t remarry. it is not however obligatory on the parties to cohabit with each other during the period of judicial separation.  Judicial separation doesn’t require spouses to stay at different places. They can reside under a common roof. Their conjugal duties towards each other come to an end. All basic marital obligations remain suspended. Nonetheless, marriage subsists parties remain husband and wife.

Legal provision

Section 10(1) of Hindu Marriage Act 1955 provides that either party to the marriage may present a praying for a decree of Judicial separation on any of the grounds specified in section 13(1). This section also provides additional grounds to wife beside the above grounds as given in section 13(2) of the Act.

Grounds for Judicial Separation

It is given under Section 10 of the Act; the spouse can file a petition for judicial separation on the basis of the following grounds:

Adultery (section 13(1)) If any of the spouses voluntarily had sexual intercourse with any other person except his/her spouse, the aggrieved party can claim the relief but that intercourse should be placed after the marriage.

Cruelty [Section 13(1)(i-a)]- When the spouse treats his/her partner with cruelty or inflicts any mental or physical pain after the marriage. The aggrieved spouse can file a petition on the grounds of cruelty.

In SMT. KANTA DEVI V. BALBIR SINGH  Wife used to ill-treat her husband and in-laws by using foul and abusive language to them. All this hampered the mental peace of the husband. The court laid down that this is a case of cruelty.

 Desertion [Section 13(1)(i-b)]-  If the spouse has left the other spouse for any reason without informing him/her for a period not less than 2 years before filing the petition by another spouse, desertion gives a right to claim relief of judicial separation to the other spouse.

Conversion/Apostasy [Section 13(1)(ii)]- If any spouse gets converted into any other religion other than Hindu, then the other spouse can file for judicial separation.

Unsound mind [Section 13(1)(iii)]- If any spouse in a marriage has been suffering continuously and intermittently from any mental disorder of such kind and to such extent that the petitioner cannot reasonably be expected to live with the respondent then the other spouse can claim relief of judicial separation.

Case- Anima Roy Vs. Prabadh Mohan Ray (AIR 1969) the respondent was found suffering from an abnormal disease after 2 months of marriage. The doctor who checked the respondent could not find the particular time of inception of the illness. Therefore, it was held that disease was not proved at the time of marriage. So, the decree of judicial separation on the ground of unsound mind of spouse can’t be obtained.

Leprosy [Section 13(1)(iv)]- If any spouse suffering from any disease like leprosy,  which can not be recovered, then the other party can file a petition for judicial separation.

Venereal Disease [Section 13(1)(v)]- venereal disease to be a ground for divorce or Judicial separation must be in a communicable form. If the spouse has any type of disease which is incurable and communicable and the other spouse does not know about the fact at the time of marriage, then it could be a valid ground for the spouse to file a petition for judicial separation.

Illustration- ‘X’ is suffering from any disease which spread by communication. The disease which is irrevocable. In this case, ‘Y’ the wife of ‘X’ can file a petition for the judicial separation.

Renounced the World [Section 13(1)(vi)]- In Hindu law, by renouncing the world means “Sannyasa”. Renunciation from the world conveys that the person has given up the world and entered in some religious order. He is considered a civil dead. If a spouse renounces the world to live a holy life, his/her partner can file for judicial separation.

Civil death/Presumed death [Section 13(1)(vii)]- If a person has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had the party been alive then the other spouse can file a petition of divorce

Illustration- ‘A’ and ‘B’, after their marriage successfully enjoyed their married life for  6 years. and suddenly the husband disappeared for about 10 years. ‘B’ as his wife she did her best to find her husband in these 10 years but she couldn’t find him. After all her futile efforts she can file for the decree of judicial separation.

Additional grounds available to the wife, for Judicial separation

Bigamy [Section 13(2)(i)]- In the case of any marriage solemnised before the commencement of Hindu marriage Act, 1955, of the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the solemnisation of marriage then petition for Judicial separation can be made by one wife if the other wife is also alive at the time of presentation of the petition.

Rape, sodomy or Bestiality [Section 13(2)(ii)]- The wife has a right to file a petition for judicial separation if her husband is guilty of charges like rape, bestiality or sodomy after the marriage.

Repudiation of marriage/A option of puberty [Section 13(2)(iv)]- If a girl’s marriage happened before attending 15 years of age, then, she has a right to claim judicial separation after she turns 15 but before attaining the age of 18 years.

Non- resumption of cohabitation after a decree or order of maintenance, A wife can seek judicial separation where a suit under section 18, Hindu Adoption And Maintenance Act or in a proceeding under section 125 Cr. P. C., a decree or order, as may be, has been passed against the husband awarding maintenance to the wife and that since the passing of such order or decree, cohabitation between the parties has not been resumed for one year or upwards.

Requirements for resuming cohabitation

If the parties agree to resume cohabitation any time after passing of the decree of Judicial separation, they can get the degree rescinded by applying to the court. Section 10(2) of the Act provides on the application by petition of either party if the court is satisfied of the truth of the statements made in such petition, the court can rescind the decree if it considers just and reasonable to do so.

Case laws on judicial separation

LALITHA DEVI V. RADHA MOHAN

The husband promised another woman that he would marry her and would keep her in the same house where his wife was residing, judicial separation was granted to the wife as it was the case of mental cruelty.

ASHIM HANJAN PODDAR V. ANUSREE PODDAR

The wife in the said case had made false allegations of an illicit connection between her husband and his elder married sister. The Calcutta High court held that the unfounded and groundless accusation by the wife that the husband had an illegitimate connection with his own married elder sister is an example of cruelty. The court passed the decree of judicial separation.

Difference between Judicial Separation and Divorce

Judicial Separation	Divorce
Marital ties are suspended	Marital ties come to an end
Mutual rights & Obligation are suspended	Mutual rights and Obligation come to an end
Parties are not free to re-marry	Parties are free to marry past the appeal period
Parties share married status	Married status comes to an end
Parties can file for Judicial Separation anytime past the marriage	Parties can file for divorce only after completion of 1 year of marriage

Conclusion

So Judicial separation is one of the matrimonial reliefs provided under Hindu Marriage Act 1955  wherein the parties to the marriage are given an opportunity for reconciliation by giving sufficient space, time and independence to the parties for introspection. This time period allows the spouses to rethink about every marital troubles with a peaceful mind. Judicial separation unlike divorce keeps a door of reunion open for the spouses. This significant provision of Hindi Marriage Act so far has saved many marriages from reaching the stage of divorce.

References

• Dr Paras Diwan, 18^th edition
• Dr Shivani  Goswami, 1^st edition

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This article has been written by Yash Dodani, a second-year student at NALSAR University of Law. He has tried to explain the implications if restitution of conjural right has been denied by any of the spouse.

Introduction

Marriage is a very important ritual in the Indian society. It is said that everyone should marry in order to attain Moksha. In Hindu society, marriage is considered to be a sacrament. However, in other personal laws, the marriage is considered as a civil contract including that of the secular Act governing the institution of Marriage.

There are various provisions in all the Acts which allow the couple to get divorced from each other on various grounds. However, before granting divorce to the couple, the courts generally ask the couple to either judicially separate or pass the decree of restitution of conjugal rights. This is done by the courts in order to create some possibility in the couple to resolve the differences between them. However, this article is restricted to the restitution part only. However let’s assume that the court has in a case ordered restitution of conjugal rights and if one of the spouses has denied to cohabit with the other, then what will and can the other spouse do? This article will deal with that part.  

Meaning and Various Provisions

The Merriam-Webster Dictionary defines conjugal rights as “the sexual rights or privileges implied by, and involved in, the marriage relationship; the right of sexual intercourse between husband and wife.” In other words, it can also be said as the right of the spouse to live together with his/her companion. Various provisions are written in various personal and secular legislations like

• Section 9 of the Hindu Marriage Act, 1956
• Section 22 of SMA, 1954
• Section 32 of the Indian Divorce Act, 1869

These legislations have a very general words saying that if the spouse withdraws from the life of another without a reasonable reason, then the courts by the order of restitution of conjugal rights may ask them to co-habit. This provision is also followed in the Muslim Personal Laws.

Generally in customs of India, the wife lives with the husband in his household. Although it is not the case always but the majority of the Indian customs do follow it. When the wife leaves the household of the husband without reasonable ground, the husband can file a plea of restitution of conjugal right in the court seeking the court to order the wife to cohabit with the husband.

The question of what is ‘household’ needs to be answered first before discussing further. To withdraw from the household is not always meant to live separately or desert another spouse completely. It may also mean-

1. Desertion from the sexual intercourse.
2. Not performing the marital obligation.

Reasonable Cause

The petitioner in this case needs to prove two things. Firstly, that the respondent has withdrawn from the household of the petitioner and secondly there was no reasonable cause to do so. If the petitioner has is not able to prove these things, the court can pass the decree of restitution of conjugal rights.

However, there are various reasonable causes which are set by the courts-

1. When the petitioner remarries with any other person.
2. When the petitioner makes it difficult for the respondent to live.
3. When the spouse in need of finance joins a job.

What is the procedure to file a plea of Restitution of Conjugal rights?

The petition is filed first in the district court. The copy of such petition must be given to the respondent and the date of the hearing must also be stated. The date of hearing is generally after 3 months of filing the petition.  After such hearing, the courts generally ask the parties to go in the counselling or as we say a mediation. The counselling process is taken by the person who is appointed by the courts. They try to resolve the differences between the parties, if the differenced are sorted out, the petition is dropped by the parties and if not, the application is sent back to the courts. If the application is sent back, the court proceedings go on as normal and based on the evidence, the courts can order.

How it is ensured that the decree is enforced?

The decree of restitution of conjugal rights is a paper of decree and is not a binding document on any of the parties. So to enforce it, order 21 rule 32 of the CPC says that with the decree of restitution of conjugal rights, there will be some property of the respondent attached to it, which can be used by the petitioner if the respondent does not abide by the decree. If after one year if the parties do not abide by the decree, the property attached to the decree can be claimed by the petitioner and this can also become the ground for divorce.

If the spouse is not allowing to have sexual intercourse for a long period, this will amount to cruelty and the husband can file a petition seeking divorce. The plea of judicial separation can also be filed if not divorce. The courts also have powers to turn a decree of divorce into the decree of judicial separation if it doesn’t find merit in the petition of divorce. Not allowing restitution of conjugal rights is a valid ground for the parties to the divorce. If the court is satisfied that the other spouse alone can’t live alone due to financial reasons, then the courts can allow maintenance from another spouse. The right to maintenance is generally allowed in the cases of divorce and is also allowed when the spouse can’t live in a judicial separation alone due to financial reasons.

Conclusion

Hence the denial of restitution of conjugal rights may lead to the filing of the decree of divorce and to co-habit is the best option to support the institution of marriage. To file a plea of divorce it brings a lot of challenges to both the parties in terms of time, money and most importantly their mental state.

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