This article is written by Sharat gopal, studying BA-LLB at Delhi Metropolitan Education, GGSIPU. In this article, he has discussed the concept of ‘Separation of power in India’ and its presence in Indian constitution in form of various provisions.

Introduction

By hearing the term “separation of power” the first name that comes to our mind is of Montesquieu. He propounded the theory of Separation of Power in the year 1748 in his book “Spirit of Law”. He believed that if all the powers are vested within one person or a group of persons, then it will lead to a tyrannical form of rule over the people and any government or authority with such nature will be a disaster for the people. There will be complete anarchy in such form of government. In order to prevent such kind of anarchy, he believed that there should be a separation of powers between the organs of the state.

Organs of Government

There are 3 main organs of the government, they are-

Executive
Legislature
Judiciary

Executive- executive is the organ of state, which is responsible for the proper implementation of the rules and regulations in the country. Their primary function is to implementation of rules and regulations made by the legislature. The executives are often involved in the making of these policies as they have a better view of the existing conditions of the state as compared to the legislature. Examples of executives are, Prime Minister, President, Ministers, and Civil Servants etc.

Legislature- the legislature is the organ of state, which is responsible for making of rules and regulations for the country. It is an organ which is responsible for making policies for the country, by which the state will be governed. In simple terms, it can be said that the legislature is the organ which is responsible for making laws for the whole state. Legislature is the assembly which consists of people elected, to represent public opinion and power of the public. Legislature has the responsibility of making laws and statues, which are necessary for the smooth functioning of the country.

Judiciary- the judiciary is the organ of state, which settles all disputes and applies the laws and check their constitutionality of these laws made by the judiciary. The real meaning of the law is decided when the judges give their judgements on various cases. The applicability of the law, its flaws, loopholes, all are discussed and understood during the judgement of cases. The primary function of the judiciary is to protect the constitution and fundamental rights of the people. Interpreting law and applying them inappropriate stances is one of the functions of the judiciary. This organ decides the scope, nature and meaning of the laws passed by the legislature.

These are the 3 organs of the state. The legislature is responsible for making of laws, the executive is responsible for implementing these laws and judiciary is responsible for interpreting these laws and solving disputes which arise due to the laws which are made by the legislature and imposed by the executive.

SEPARATION OF POWERS

According to Montesquieu, there should be a clear-cut division of power between the 3 organs of state i.e., legislature, executive and judiciary, to avoid arbitrariness. He suggested that these organs should have separate departments and they should not interfere in each other’s department. They should be independent in nature.

Separation of powers, genesis came from the constitution of America, where this concept of separation of powers is followed strictly. It came into effect to avoid a government which will tyrannical and arbitrary in nature.

Features of Separation of Power

Each organ of state is restricted to its own field, and is not allowed encroach in other fields.
Due to Separation of power, the concept of unlimited power in one hand is eliminated.
There is saying, “Power corrupts and absolute power corrupts absolutely”. Separation of power introduces to the system of “checks and balances”.
Separation of power is desired for having an effective form of governance.

Basic concepts of Separation of Power

No person should be a part of more than one organ of the state.
One organ of state should not interfere or control another organ.
One organ should not perform the functions of another organ.

Separation of Power in India

Separation of power is followed in India but not in a way as it is followed in America. India follows the separation of powers in a not very strict manner but its separation is ensured in the constitution as mentioned below –

Separation of Power between Judiciary and Executive

India follows the rule of law, which states that the law will supreme and nothing is above law. If there is no separation of power followed and, judiciary and executive powers are with one person or a group of person, it will lead to anarchy. The primary function of the judiciary is to provide justice and it cannot be provided if, one is the judge in his own cause. If there is no separation between judiciary and executive, then justice cannot be delivered effectively.

In order to avoid this situation, the constitution of India in Article 50 clearly states that the state should take all necessary steps to separate the judiciary from the executive.

Separation of Power between Judiciary and Legislature

The constitution of India in article-122 states that the court cannot inquire into the proceedings of the parliament. The court cannot question the parliament on any grounds or irregularities in parliament. And Article 121 states that the parliament cannot discuss about the conduct of any Judge of the Supreme Court or High Court. Also under Article-105 of the constitution, it provides parliamentary privileges to the members of parliament. In this way constitution has ensured separation of power between judiciary and legislative.

Separation of Power between Executive and Legislature

There is no specific separation of power mentioned in constitution between executive and legislature. But as the executive is a part of the legislature. President who is the part of the executive has the power to summon both houses of parliament and also have the power to prorogue the both houses and dissolve the house of people. Also, has the power to appoint various officers, but this all is done through the advisory committee of the president i.e., the council of ministers and this way legislature is not in control of the executive, as also legislature has the power to execute impeachment process against the president.

The concept of separation is of power is not rigidly practised in India that is why India uses the system of checks and balances for separating organs of the states. India does not follow the SOP in a strict form as-

Article-53 of the constitution states that the President is vested with executive powers but he will act on the advice of the Council of Ministers.
President can pass an ordinance which is the law, and making law is the role of the legislature.
Judges of Supreme Court are appointed by President and they are impeached by the parliament.

CASE LAWS

In the case of Ram Jawaya Kapoor V/S State Of Punjab(AIR 1955 SC 549), it was held that executive action is derived from the legislature and it is dependent on it for its legitimacy and. And in Indian constitution separation of power is not in absolute terms but has sufficiently distinguished the functions of all three organs.

In the case of Indira Nehru Gandhi V/S Raj Narian(AIR 1975 SC 2299), the Supreme Court held that in the constitution, there is a functional overlapping within the organs of the government, as there is no rigid separation of power in India, unlike the USA.

CONCLUSION

In India, we follow the separation of function and not the separation of power. And hence are not abided by the rigid principles of separation of power like in USA, Nepal, France etc. But still, somewhere in its nature, it preserves principle of separation of power in its doctrine of check and balances. As for the smooth functioning of the government, all the three organs must be in coordination and cooperation.

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This post is written by Anushree Tadge, a 3rd-year law student of ILS Law College, Pune, she has tried to explain briefly both the concepts- Burden of Proof and Presumptions in the Indian Evidence Act.

Introduction

In any kind of legal proceeding, the question pertaining to proving of a fact (by both the parties) is answered with another question- on which party does the burden of proof actually lie? The court does not expect proof of self-evident facts and neither are all cases simple enough to demand so and therefore the Court holds a ‘presumption’ of continuity of certain implied facts until anything contrary is brought to the Court’s attention. Therefore, the burden of proof and presumptions go hand in hand and both need to be understood briefly. Chapter VII of Part III of the Indian Evidence Act deals with the provisions of the party does burden of proofs and presumption.

Presumptions generally refer to a process of giving a permit to a few facts on the basis of possibility (when such possibility has comparatively a greater substantiate value than general facts). Similarly, the concept of presumptions in law means inferences/ascertained facts which are concluded by the authority of Court in regards to the existence of certain facts already laid out in the matter. Generally, consequences of certain acts lead to the drawing of inferences, these can either be affirmative or negative. They are ruled out by using the mechanism of the most probable reasoning of such circumstances.

Section-114 of the Indian Evidence Act especially deals with the provisions that ‘the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of

natural events,
human conduct, and
public and private business, in their relation to the facts of the particular case’.

Burden of Proof

Let’s briefly understand what the concept of burden of proof to understand presumptions better. Facts can be portrayed in the Court of Law subject to parties affirming it or denying it. Section-101 of Evidence Act if a party asserts and affirms to a particular fact, the burden of proof automatically lies on it and the other party is supposed to counter it. Since the Courts give judgement on the basis of truthful value of affirmative/ otherwise facts, it is crucial that the same are accurately proved. Also, now that is is more convenient and crucial for the party affirming a face to prove it than the party countering it, the burden of proof also lies on the former. Supreme Court in the famous case of State of Maharashtra v Vasudeo Ramchandra Kaidalwar (1981 3 SCC 199) held that the expression ‘burden/ onus of proof’ has prominent two meanings, one is the legal burden and second is the evidential burden. In a criminal trial, the accused is considered to be innocent until proved guilty and the prosecution is responsible to prove his guilt. Similar sections that emphasize on the topic of the burden of proof- 103 till 113. Further, only a person who wants to believe a particular fact should prove the value of that fact and this was held in the landmark case- KM Nanavati v. State of Maharashtra (AIR 1962 SC 605), whereas naval officer was held guilty for supposedly murdering his wife’s lover. Although since the accused could not prove that he fired the shots accidentally or in self-defence.

Presumption of facts and Presumption of law

Presumption of Facts refers to the presumptions that are made on the basis of facts/ collection of facts relevant to the case. They are uncertain and rebuttable in nature. The Court may or may not choose to either presume such facts. For e.g. Presumptions of abetment as to suicide by a married woman.

Presumption of law refers to the presumption that is made by the Court (bound by law) when there remains an absence of proof in certain situations. They are certain, conclusive and mandatory for the Courts to follow too because the legislations guarantee it. For e.g. Presumption of Innocence.

Mixed Presumptions (Presumption of Fact and law both)

The other kind of presumption is – Mixed presumptions, these are presumptions of both law and Fact. Since such presumptions are mainly confined to the English law, it is not essential to deliberate on it here, it is of value in the English property-related law. In a very nominal position, even The Indian Evidence Act, 1872 has made some provisions for the mixed presumptions pertaining to both fact and the law. While in certain sections of the Evidence Act, it has been provided that the court may presume certain facts although, in other sections, The court shall presume a fact has been put to usage. Section-4 of the Evidence Act is of prime importance here as it controls the other sections and gives a direction for the Courts as to how to conduct the procedures relevant in the sections.

Classification of Presumptions under the Indian Evidence Act 1872

Various sections of the Indian Evidence Act of 1872 layout provisions with respect to provisions, briefly stating the same below-

It can be said Section-4 deals with three categories of presumptions namely- Discretionary Presumptions, Mandatory Presumptions and Conclusive Proof, Further the other Sections which specifically deal with ‘Discretionary Presumptions’ relating to documents are sections 86, 87, 88, 90 and 90-A. Presumptions under Section 86 refers to Presumption as to certified copies of foreign judicial records. The following sections- 87 to 90-A Refers to Presumption as to Books, Maps and Charts, as to Telegraphic Messages, as to documents thirty years old respectively. Now, Section 90-A is very similar to Section 90 of the same Act in structure and it explains the presumption that applies to electronic records which are 5 years old. In the other case of Dayabhai v State of Gujarat (AIR 1964 SC 1563), the Apex Court held that it is the sole duty of the prosecution to establish, beyond any kind of reasonable doubt that the accused committed the offence.

Further

Further, the Section-113A lays out the provision- Presumption as to abetment of suicide by a married women, Section-113B explains the Presumption as to dowry death. Irrebuttable presumptions are a broad avenue and the provisions explaining it should also be considered. Irrebuttable presumptions are those legal rules which are not a consequence/ outcome of any evidence or fact. Section-82 of the Indian Penal Code is a well-known example of irrebuttable presumption of law which provides that nothing is to be considered as an offence which is done by a child under 7 years of age. Section-115, 116 and 117 of the Indian Evidence Act 1872 also deals with the rule Estoppel which are the examples of irrebuttable presumptions. Section-115 talks about Estoppel. Section-116 talks about Estoppel of tenant and of the license of the person in possession. Section-117 explains the provision of Estoppel of the acceptor of a bill of exchange, bailee or licensee.

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This case analysis prepared by Deepika pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this case analysis, a landmark case of tort law Rylands v. Fletcher has been discussed. This is a very significant case, as the rule of ‘Strict Liability’ originated from this case.

Introduction

Rylands vs. Fletcher (1868) L.R. 3 H.L. 330 is one of the landmark cases of tort law. In this case, The House of Lords laid down the rule recognizing ‘No Fault’ liability. The ‘Rule of Strict Liability’ originated in this case. By this rule, a person may be liable for some harm even though he is not negligent in causing the same. Further, this case paved the way for ‘The Rule Of Absolute liability’ in India.

Judges (sitting)

Lord Cairns and Lord Cranworth

Decided on

17 July 1868

Major contribution of the case

‘The Rule of Strict Liability’ originated in this case.

Facts of the case

The defendant, Rylands got a reservoir constructed, through independent contractors, over his land for providing water to his mill. There were some old disused shafts under the site of the reservoir, which the contractors failed to observe. So they didn’t block the shafts. When water was filled within the reservoir, it burst through the shafts. As a result plaintiff’s coal mines on the adjoining land was flooded. The defendant didn’t know about the shafts and he had not been negligent although the independent contractors had been. The negligence was on the part of independent contractors. Since the plaintiff, Fletcher has to suffer losses, he sued defendants.

Issues raised

Whether there was any nuisance or not?
Was the use of Defendant’s land unreasonable and thus was he to be held liable for damages incurred by the Plaintiff?

The Court Of Liverpool

This court’s ruling favoured the plaintiff on the basis of both trespass, (as the flooding was deemed not to be “direct and immediate”) and nuisance. Later a court order led to an arbitrator from the Exchequer of Pleas, who was appointed in December 1864. The arbitrator decided that the independent contractors were liable for negligence since they had known about the old mine shafts, still showed negligence in dealing with it. The arbitrator said, Rylands, had no way of knowing about the mine shafts, so he couldn’t be liable.

Exchequer of Pleas

The case then went to the Exchequer of Pleas, where it was heard between 3^rd and 5th May 1865. It was heard on two points:

Whether the defendants were liable for the actions of the contractors and
Whether the defendants were responsible for the damage regardless of their lack of negligence.

They decided for the first point that the defendants were not liable, but they had a diverse opinion on the second point. Channell B recused. Pollock CB and Martin B held that the defendants were not liable, as since a negligence claim couldn’t be brought, there was no valid case. Bramwell B, dissenting, argued that the claimant had the right to enjoy his land free of interference from water that came from defendants reservoir, and so as a result the defendant was guilty of both trespass and the commissioning of a nuisance. He stated that “the general law, wholly independent of contract” should be that the defendants were liable, “on the simple ground that the defendants have caused water to flow into the [claimant]’s mines, which but for their actions wouldn’t have gone there…”

Court Of Exchequer Chamber

Fletcher was angered by the decision of the three exchequer judges and appealed to the exchequer chamber composed of six judges. The six judges “overturned the previous decision”. Fletcher. Blackburn J spoke on the behalf of all the judges and said that “we, the judges of the exchequer think that correct rule of law is that, any person, who for his own intentions brings on his land anything, accumulates and keeps on the land that thing, which is likely to cause trouble if it escapes, must keep it at his own risk, and, if he doesn’t do so, is clear (without need for further information), in charge of all the damage which is that the natural effect of its escape.” Blackburn J further said that that person can excuse himself from the liability by taking certain defences like – that the escape was caused because of the plaintiff’s default; or by proving that the escape was a consequence of the act of God” (Fordham Margaret1995)

The judges concluded that “none of these excuses had been proven in the case”, and it was, therefore “unnecessary to find out what another excuse would be sufficient”. The judges, in the judgement, relied on the “basis of the liability for damages of land through the tort of chattel of trespass, the tort of nuisance”, as well as “the scienter action (common law rule that deals with the damages directly done by animals to human beings)” (Duhame.org, 2009).

The court of Exchequer Chamber provided a rule when the liability of an owner, who has brought any dangerous in his premises can arise. At the same time, the court also discussed certain defences which can absolve the liability.

The court of Exchequer Chamber held Rylands liable for the damage done to the Fletcher. The court held that the defendants owed a duty of care towards the risk, as they were aware of the fact that if that quantity of water would escape, it would be harmful. There was a want of care by the defendants, as they were doing unnatural use of their land by storing that huge quantity of water. Though it was not harmful that time, but would be harmful if escapes.

Rylands felt that this was not just. He appealed to the House of Lords.

House Of Lords

The House of Lords dismissed Ryland’s appeal. They agreed with the six exchequer judges but went further to feature a limitation on the liability.

Judgment

The House of Lords dismissed the appeal and agreed with the six Exchequer judges. Lord Cairns, while speaking for the House of Lords, stated their agreement of the rule stated above by Justice Blackburn in the court of Exchequer Chamber but included a further limitation on liability. The one more requirement is that the land from which the escape occurs must have been modified in a way which would be considered non-natural, unusual or inappropriate. The decision of House of Lords added a requirement that the use be ‘non-natural’. The judgement of this case was delivered on 17 July. In this the court consisted of only two judges, Lord Cairns and Lord Cranworth; Lord Colonsay didn’t attend the case.

Three essentials, for the application of the Rule of Strict Liability

Some dangerous thing must have been brought by a person on his land.

According to this rule, the liability for the escape of thing from one’s land arises when the thing collected was a dangerous thing. It means a thing likely to do mischief if it escapes. In Rylands v. Fletcher, the dangerous thing was a very large body of water

The thing thus brought or kept by an individual on his land must escape.

For the rule in Rylands v. Fletcher to apply, it is also essential that the thing causing the damage must escape to the world outside the occupation and control of the defendant

It must be non-natural use of land.

Water collected within the reservoir in such an enormous quantity in Rylands v. Fletcher was held to be non-natural use of land. In order to show that, the use is non-natural, it must be shown that use is some special use bringing with it increased danger to others.

Exceptions to the Rule of Strict Liability

A number of defences to the rule of strict liability too was developed in this case and some later cases:

Escape was owing to the plaintiff’s default
Escape was a consequence of vis major
Consent of the plaintiff
Act of third party
Statutory authority

Impact of the case in India

In M. C. Mehta v. Union Of India, the Supreme court took a bold decision holding that it was not bound to follow the 19th-century rule of English law. The honourable Supreme Court said it could evolve a rule suitable to the social and economic conditions prevailing in India at the present day. It evolved the rule of ‘Absolute Liability’ as a part of Indian law in preference to the rule of Strict Liability laid down in Rylands v. Fletcher. This rule was not subject to any of the exceptions under the rule in Rylands v. Fletcher. The defences to the Rule of Strict Liability can be used by the persons who had established ‘hazardous and inherently dangerous’ industries to escape the liability for the havoc caused, by pleading some exceptions. So to remove that grey area and in order to increase accountability on the part of persons engaged in such kind of activities, the rule of ‘Absolute Liability’ has been evolved in India.

Conclusion

Ryland vs. Fletcher played a great role in deciding owners’ liability when he is bringing any dangerous object in his premises. It was necessary to have a law that could increase the duty of the owner. So that he can be more careful while bringing any dangerous object in his premises. The world is progressing very fast and in this era of industrialization, privatisation and globalization disputes regarding the duty of care are burgeoning rapidly so there was a need for a law that could solve these problems. This was done in this case. In the context of India, this Rule of strict liability paved the way for ‘The Rule of Absolute Liability’ in India.

References

Dr R. K. Bangia, 17^th edition
https://en.m.wikipedia.org/wiki/Rylands_v_Fletcher
https://www.lawteacher.net/cases/rylands-v-fletcher.php

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This article is written by Yash Soni, a 2nd-semester LL.B student of CSJM University. In this article, he has tried to explain Assault, Battery, and Mayhem along with the distinction between them.

Introduction

Assault and Battery are two terms which are often used synonymously. In one’s mind, the term ‘assault’ means to physically hit or injure someone, but it is not so. They are two distinct terms. Where ‘Battery’ means any act of physical force upon another person, Whereas, ‘Assault’ means attempting battery or making one to believe that an act of battery is about to occur.

There is also another term which is related to Assault and Battery, which is known as ‘Mayhem’. ‘Mayhem’ is an offence against the person when an offender deprives his victim of a member of his body in order to make such a victim unable to defend himself. In this article, we’ll further discuss these terms in detail and will also try to differentiate between these terms.

Assault

According to Dr Winfield, Assault is an act of the suspect that causes within the mind of the complainant cheap apprehension of the infliction of a battery on him by the suspect. An Assault is an effort or supply to use force to another person’s body. Anyone, who advisedly brings any material object into a contract.

For Example- 1-to throw a stone or water upon an individual, 2- to tug a chair beneath him 3- whereby he falls to the ground 4- strike any individual, all together in these cases, one person brings some material objects like a stone or a stick. These in contract with another person. In assault, the force isn’t applied however solely an effort is made.

Assault is outlined beneath in section 351 of Indian Penal Code that states that ‘ Whoever makes a gesture, or any preparation intending or knowing it to be doubtless that such gesture or preparation can cause a person to apprehend that who makes that gesture or preparation is on the brink to use criminal force thereto’, is claimed to commit an assault.

The assault should be intentional

A mere gesture not showing an intention to use force instantly isn’t an assault. The well-known case of Tuberville v. Savage [(1669) one Mad three ] is an example to show force destitute of intention to hold it out. The words, “Were it not assize (trial time) time I’d tell more of my mind”, after putting the hand on the sword, weren’t held to be assault. In this case, the speaker meant that it had been assize time and violence therein time was severely punished, so he couldn’t structure his mind to use the sword. In short, an assault is an intentional act of putting another person in reasonable fear of the appliance of force, eg- striking with a stick.

Ingredients:

Making of any gesture or Preparation by an individual within the presence of another.
Intention or the probability that such gesture or preparation can cause the person to apprehend that the person creating it on the brink to use criminal force on him.

In the case of N.Arumgam v. A.V.M. Vilachanny 1994, the defendant pointed a loaded revolver at the litigant threatening to shoot him however before he may shoot, the litigant managed to flee. Held, it might not be an offence to commit murder, however, it might be an offence of assault beneath Section-351.

Battery

According to Salmond: ” Battery is that the application of force to the person of another with none lawful justification”.

The battery is an accomplished assault. The gesture to strike with a stick is an assault. The applying of even the slightest quantity of force is unjust. The battery wants to not be in the middle of bodily damage. Even to Slightly touch an individual without his consent or the other justification may be a battery.

It is to be noted that the battery is often without the consent of the person injured. If there’s his consent, it’ll not amount to a battery, so a beating suffered voluntarily isn’t unjust.

Ingredients:

Use of Force
Force should be intentional
Without lawful justification

Battery like all suits in trespass is unjust intrinsically i.e., while not proof of injury,i.e., physical injury. In case Swarup avatar v. Gabardhan Das AIR 1956, the suspect of sixteen years old age, abused the complainant on his face within the presence of a known crowd. The suspect committed assault in an outrageous manner and utter disrespect of his right. Through the act of the suspect failed due to a lot of physical injuries. It had been an insult to the plaintiff’s dignity. It was ordered that the exemplary harm of Rs.100/- awarded to the complainant was correct and in ordinary.

What is the differentiation between Assault and Battery?

To comprise A battery, a real agreement is significant, regardless of whether it’s a quick use of physical force with the help of some item. Be that as it may, in an ambush, the genuine substantial agreement isn’t essential and in this manner the demonstration of the respondent which makes a reasonable worry of the utilization of force against comprise attack, regardless of whether the force has not been utilized. For eg-to toss, a stone is an ambush and on the off chance that the stone falls upon him, at that point it turns into A battery. Additionally to shape a horse run towards an individual might be an attack however to frame the horse run over him is a battery.

Mayhem

Mayhem maybe a tort that causes severe injury to the victim in such a way he’s unable to defend himself from the tortfeasor. It’s closely intertwined with assault and battery. While assault refers to the threat of battery, and the battery is the physical usage of force against an individual, Mayhem deals with the disfigurement or loss of any part to physical injury caused by the tortfeasor. The disabling of an arm, hand, finger, leg, foot, or eye are examples of mayhem. To be guilty of the criminal offence, one shall dismember the victim or must assault him so recklessly on creating the danger of dismemberment albeit not meaning to cripple.

Several jurisdictions don’t consider the difference between mayhem and battery, but rather count mayhem as a sort of ‘aggravated battery’ as in developed countries like Japan.

The U.S considers mayhem as a felony. The concept of Mayhem is often understood through subsequent cases –

In Case Fetter v. Beale [91 Eng. Rep. 1122] – The plaintiff had recovered damages from the defendant for the action of battery. Shortly thereafter, ‘Part of his skull came out of his head due to the said battery’, and therefore the plaintiff brought a subsequent action under mayhem. Through this case, the scope of mayhem was also expanded to the loss of the Skull.
In Case Garrett v. Taylor [(1676) 81 ER 726] – it had been held that a quarryman had an explanation for his action against the defendant which had caused the plaintiff’s customers to discontinue buying the quarried stone by threatening them with ‘mayhem’.

Difference Between Assault, Battery and Mayhem

Assault is an action that causes fear within the mind of the victim that an act of battery is close to taking place; Battery refers to the act of striking someone with physical force and no lawful justification. Mayhem refers to the act of crippling someone and rendering them defenceless. Assault generally refers to only intended to cause harm, whereas both in battery and mayhem, inflict physical injury occurs upon the victim. Assault takes before the crime of battery is committed and mayhem may be a severe sort of battery. These 3 torts are related to one another and form an integral part of criminal and tort law.

References

Dr J.N Pandey, Law of torts 2014
Prof. S.N Misra, Indian legal code ordinal Edition.
Bare Acts

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This article has been authored by Ritesha Das, pursuing BBA LLB from Symbiosis Law School Hyderabad. It aims to analyse the Concept, Formalities, Capacity and Revocability of Hiba.

INTRODUCTION

The notion of ‘Gift‘ or ‘Hiba’ persisted in Muslim law from the foundation of the religion. While the acknowledgement of the distinction of land into property or estates is subjected to authentication, the Muslim Law does acknowledge the variance between ownership of the land and its right to enjoy it. The term gift denotes a transfer of the benefit and interest of a property from one person to another without consideration. It’s gratuitous and inter-vivo in nature. This is the general concept that all religions acknowledge including Muslim law. According to the Muslim Law, a gift is termed as ‘Hiba’. Although the word ‘Gift‘ and ‘Hiba‘ are frequently interchanged without drawing the line of differentiation, but the term ‘Hiba’ is just one of the forms of transactions which is transferred without any consideration, often addressed under the broader expression of ‘Gift‘. The ambit of ‘Hiba‘ often forbids all kinds of services as they do not occur at the time of the promise, rather they are only rendered after the promise has been made. The sphere of ‘Hiba‘ mandates the physical existence of the object at the time of the gifting. This has been widely interpreted that the expression of ‘mal’ must refer to the gifted object for the applicability of the rules of ‘Hiba‘ under Muslim Law. A gift by a Muslim in favour of his co-religionist must be under the Mohammedan Law. Under Muslim law, the expression of ‘gift’ is subjected to certain principles of the contract act as it constitutes an offer (ijab), acceptance (qubul) and transfer (qabza)

One of the primary essentials of gift constitutes the reciprocal actions of giving or taking. According to Section 122 of the Transfer of Property Act, “a gift is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the done”. The essential elements of a gift are composed of: The donor, The donee, Subject matter, Absence of consideration, Transfer and the acceptance.

In order to constitute a valid gift, acceptance of the donor is a necessary attribute. There are various circumstances shedding light on the dimension of the absence of any specific style of acceptance. The matter of acceptance may be determined by various circumstances, such as taking possession of a property or being in possession of a gift deed alone. If a gift document is handed over after being executed or registered in the favour of donee by the donor, the acceptance of the document leads to a valid acceptance of the gift in law. The precise recital in the act that the grant of possession gives rise to a presumption of acceptance.

CONCEPT OF HIBA

In the Mohammedan law, a gift is a transfer of property or right by one person to another in accordance with the provisions given in the Mohammedan law and includes-

a) A ‘Hiba‘, an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return and

b) An Shariat, the grant of some limited interest in respect of the use or usufruct of some property or right.

Where a gift of any property or right is made without consideration with the object of acquiring religious merit, it is called Sadaqah.

Hiba is a transfer of property by the action of both the parties. It is neither operated nor intervened by law; hence any transfer of property done by the intervention court of law or any transfer of ownership by the implementation of Muslim law of inheritance will not fall under the purview of Hiba. The ownership of any property is transferred voluntarily by a living Mulsim to another and hence, it is also referred as a transfer inter-vivos. The transfer of the possession of the property by the transferor must be in absolute interest and the transferee must be entitled to receive the full title in respect of the property granted to him. The elements of conditions, constraints or limited rights in gifted properties are contradictory to the principle of Hiba under Islamic law. The operation of Hiba starts immediately after the transfer of property by the transferor, disposing of all his possession and ownership of the property. Moreover, the transferred property must be tangible or have some existence at the time of the transaction. A property gifted without present existence is void.

FORMALITIES OF HIBA

The Muslim Law provides a discretion to grant a ‘Hiba‘ either orally or in writing, irrespective of the fact of tangibility or movability of the property. The only mandatory formality for the validity of a Muslim gift is taking the ownership or possession of the subject-matter of gift by the doner either actually or constructively.

Delivery of Possession

Formalities set down for gifts under Section 123, Transfer of Property Act, 1882, shall not extend to Muslim gifts. Under Islamic law, a gift is complete only after the donee has been granted the possession through the delivery of the possession by the donor. It is also compulsory for the declaration and approval to be followed by the delivery of the possession of the property. The gift shall take effect from the date on which the ownership of the property is granted to the donee, not from the date on which the declaration was made by the donor. The significance of overriding facet in Islamic law is such a degree that without giving the gift of possession to the donee, the gift is invalid even though it has been rendered by means of a registered deed. The significance of overriding facet in Islamic law is such a degree that without giving the gift of possession to the donee, the gift is invalid even though it has been rendered by means of a registered deed. For a donation to be complete, the donor must dispose of not only possession but also the property in favour of the donor. In the Noorjahan v. Muftakhor, a donor made a gift of certain property to the donee, but the donor continued to manage the properties and takes the profit himself. Till the death of the donor, no mutation was made in the name of the donee. It was held by the court that since no delivery of possession was made, the gift was incomplete and ineffective in nature.

Modes of Delivery of Possession

The manner of delivering possession is entirely dependent on the nature of the property. To constitute the delivery of the property, the donor is legally obliged to act in a way by which the done is entitled to the physical possession of the property. A donee is said to possess a property in such a way that he may exercise exclusive control over it and benefit from it. The delivery of possession is broadly classified into actual and constructive delivery of possession.

Actual Delivery of Possession

Actual delivery refers to the physical transfer of the property to the donee. The tangible properties or the properties that can be physically owned irrespective of movable or immovable, are supported under this form of delivery. The donee must be actually transferred and handed over the movable property. The actual delivery of possession is mandatory in case of immovable property. However, since the immovable property can’t be collected or handed over, the donor may deliver the property by providing all the documents relating to the property to the donee so that it can be used according to the discretion of the donee.

Constructive Delivery of Possession

Constructive delivery of possession or ownership denotes to the symbolic transfer of the property. Through this mode of delivery, the donor does any act on the grounds of which it is legitimately assumed that the possession has been handed over to the donee. Such a form of transfer of ownership occurs only when the nature of the property forbids it’s the delivery through actual mode. The constructive delivery of possession is enough to constitute a valid gift when either the property is intangible, or the given circumstances doesn’t support the actual delivery of ownership property of the tangible property.

ELIGIBILITY OR CAPACITY

The concept of capacity is broadly divided into two categories:

Mental capacity: A sound-minded person having the ability to assess the legal implications and repercussions of his action is eligible to grant ‘Hiba’. However, a ‘Hiba’ offered by a person of unsound mind during lucid intervals is considered valid. In addition, the decision of donor or the transferor must not be influenced or altered through the elements coercion or fraudulent influence while making a gift. The courts ruled that the gift by the Parda-nasheen women was valid in the case of Hussaina Bai v. Zohara Bai. The court stated that it is important to determine that the gift is given by a Parda-nasheen lady involved her free consent and she made the gift on her own discretion. The burden of proving the absence of compulsion of the gift lies with the donee.

Financial Capacity: A person under insolvent circumstances can make a gift or ‘Hiba‘ in accord to the Hanafi School. If the gift or ‘Hiba‘ is rendered to defraud the donee, Kazi has the power to announce it void. The Indian courts accepted Hanafi ‘s view that the donor ‘s fraudulent intentions cannot be deduced from the fact of piled debt or the ambiguous financial conditions of the donor. With each gift, the donor must have a true intention of transferring property to the donee. If the primary intent to swindle the donor is evident from making a gift, the gift would be invalid.

The mere ability to make a gift is not enough as the question of the right to render a Hiba arises while transferring the property. A Muslim doesn’t have the right to give away the property in the absence of his ownership. For instance, if he’s just a tenant or guest, he’s not allowed to give the building to anyone because he’s not the owner of the property. Such a gift shall be considered as null. Nevertheless, a Muslim has the right to give away all his properties which he possesses at the time of the announcement of the gift. The transfer of the property by the donor must be in the absolute interest of the donee. It is also imperative that the donor owns the property that he wants to pass on to the donee.

CONCEPT OF REVOCATION

Though the prophet ‘s notion is against the revocation of gifts or Hiba, all voluntary transactions including gifts can be revoked under the well-defined Muslim law.

Although there is a tradition which indicates that the Prophet was against the revocation of gifts, it is a well-established rule of Muslim law that all voluntary transactions, including gifts, are revocable. The topic of the revocability of gifts was addressed from different perspectives by the Muslim lawmakers. From one perspective, all gifts are revocable except those made in the grades by one spouse to another, or to a person related to the donor within the degrees of prohibited relationship.

A long list of irrevocable gifts is set forth in the text of Muslim law. There are not only variations between schools but also the Shia and Sunnis differ in the list of contents. On the point of view of revocability, the Muslim lawmakers also classify gifts under the two main heads:

• Revocation of gifts prior to the delivery of possession

• Revocation after the delivery of possession

Revocation of gifts before the delivery of possession:

According to Muslim law, all donations shall be revocable before the donee is granted the possession. The withdrawal is valid. The revocation will not alter the fact that the gift is rendered to a spouse, or to a person related to the donor within the degrees of prohibited relationship. The fact is that under the Muslim law no gift is complete until the delivery of the property has been made, therefore the transfer of gift to the donee is incomplete until the donor has delivered the property.

Thus, revocation of such gifts merely infers the mind change of the donor resulting in the reluctance of the delivery of ownership of the property to the donee. The court order is not essential for the revocation of these gifts.

Revocation after the delivery of possession:

The simple assertion of revocation by the donor, or the institution of a lawsuit, or any other action, is not enough to revoke a gift. Until the order of the court to revoke the gift is taken, the donee shall have the complete right over the property in any manner including the right to devolve or dispose of the property. The Shia law of the revocation of gifts varies in the following ways from the Sunni law: firstly, a gift may be revoked without proceedings by a mere declaration by the Donor, secondly, a gift given to a spouse is revocable, thirdly a gift to a relation, whether within the prohibited degrees or not, is revocable.

Although it may indicate that all gifts after the transfer of possession can be revoked with the consent of the donee but the revocation can be enforced only by an order of the court.

The revocation of a gift is a personal privilege of the donor, and the gift can neither be revoked by his descendants after his death nor be withdrawn after the death of the donee, subjected to the following exceptions stated in the Hanafi School, according to which a gift can also be revoked even after the delivery of the possession:

The link of donor and the donee within the forbidden degrees.
Increase in the value of the subject matter.
The loss of identity of the subject-matter of the gift.
Receipt of something in return (iwaz) by the donor.
Gift received by one spouse to another.
Death of the donor or donee.
Absence of the gift or property in the hands of the donee, i.e. when it has been disposed of by sale or consumed in its entirety or has been lost.

CONCLUSION

The subject and the concept of the word gift is an age-old, conventional issue that has become a distinct feature of property law. The key goal of this analysis has been various aspects of the gift of property and its contrast and effects with the Mohammedan Law.

It should be noted when considering the law of gifts that the word ‘gift’ is common and should not be confused with Islamic technical term, ‘Hiba’. Hiba is the genus whereas gift is the species. The term gift denotes a transfer of the benefit and interest of a property from one person to another without consideration. In this article, the author has covered the aspects of the concept, capacity, formalities and revocation of gifts which included Hiba under its purview.

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This article is written by PRANIT BHAGAT pursuing BA-LLB from ILS Law College, Pune. In this article, he has discussed the major differences between civil and criminal negligence with examples.

Introduction

Negligence is considered both civil as well as criminal wrong. We need to know and understand that the concept of negligence is derived out of the basic word that we all have been subject to.

Understanding the Concept of Negligence in law

The word “negligence” stands for “carelessness”. Thus, we can define this as a situation where one person is injured or is harmed due to the carelessness of the other person. The other person does not harm directly but due to an act that he committed negligently is the tort of negligence committed. It is when one person owes another person, the duty of care, which means that any other ordinary person would have taken care if he would have been there in his place, therefore negligence is where due to the failure of one person to take care, another person suffers harm, damage, injury or loss. There are some situations in which there exists no contractual relationship between two parties and it is neither written nor implied. These situations are civil and where there exists a contractual relationship that is where the concept of criminal liability arises. For example in a case where the doctor is treating a patient in the surgical room, if the patient has signed the contract where it is mentioned that the doctor will not be liable in case of death, then there exists a contract but if the patient dies not because of the disease but because of the negligent act that the doctor committed then it is criminal negligence.

Essentials of Negligence

There are a few essentials of negligence that are needed to be fulfilled before one can claim that negligence has been committed. They are appended below:-

Duty of Care

This means that there exists a duty of care in everything you do. The action of a person is tested upon whether any prudent man would have done the same in similar circumstances, therefore the duty of care means to take reasonable care of what you are doing.

Breach of Duty of care

It is the breach of the duty of care which should be present in the negligent act, which means that if the act is done with the reasonable care and protection as any other prudent man would do, then there arises no question of the negligence being into question.

There must be an injury or harm caused

Now, the third important element that needs to be taken into consideration is that there needs to be an injury, harm or loss to the person because of the breach of the duty of care on the part of the other person. Therefore, the negligent act will come to the cognizance of the court only when the injury is caused to the person.

The injury or harm caused must be as a result of the breach of duty of care

This means that the previous act of the injury being caused is complete to be called as negligent act when it has done because of the breach of the duty to take care of the part of the other. So, it is when the other person fails to perform his or her duty towards the other, which any other prudent man would do in the ordinary course of the situation, and injury is caused to the person because of the failure to take care of the other, negligence is said to have been committed.

Defences to Negligence

Negligence can always be an appropriate trick to target anyone; therefore, there are defences available that prove that it is not always that the act has to be negligent. These defences are appended below:-

Inherent Risk

So, when we talk about inherent risk, it means when the act itself is dangerous enough that it is dangerous and any prudent man would not engage in such an act, or any other prudent man would have done the same thing as the defendant has done, therefore in such cases, the defendant would not be liable of the negligence of which he is charged in the court.

For instance, when some dangerous animal approaches towards me, I run and while I Run, I take the knife from your cake shop and ruin your cakes, because of which you suffer losses and damage. So, I cannot be negligent because the animal that is running behind me is dangerous and if I do not take the knife from your cake shop, I would have died, therefore my act of picking the knife from your cake shop was not negligent and was an intentional act. The circumstance involved an inherent danger. Therefore, I cannot be charged with negligence.

Obvious Risk

So, in this kind of defence, we talk about something very obvious. Where the act was done by the defendant was an obvious reaction to the primary action, the defendant cannot be blamed for negligence.

For Instance, were due to the spillage of oil, I slipped holding onto you and then you got hurt, I will not be held liable for the negligent act.

Voluntary Assumption of Risk

I see a gun-shot approaching towards me and I jump pushing you ahead of me, in that case, I presumed that the gun-shot is coming towards me and the sudden reaction to the presumption was me jumping at you. In that case, I will not be held liable.

Dangerous Recreational Activity

Dangerous recreational activity is when we participate in an activity for recreational purposes, but that activity is inherently dangerous and the participation in which would be a voluntary act, I will not be held liable for the negligent act.

So, where I participate in a sea diving activity and drown and die, the person who took me for sea diving will not be held liable for any negligent act or my death because it was me who went for that activity, therefore he cannot be held negligently liable for injuries caused to be or harm caused to me.

Exclusion of Liabilities

In this what happens is that the defendant tries to modify their exposure to liability by stipulating a reduction or even exclusion from liability. Exclusion of liability means that the defendant tries to maintain a relationship with the plaintiff, to avoid the liability on them. Therefore, when the defendant tries to enter the premises of the plaintiff according to the will of the plaintiff that is the exclusion of liability. There lies an exception to this, i.e. when the term is used in the broader sense, reliance cannot be placed upon it because it loses its essence.

Illegality

This defence means that there is illegality in the action done by both the plaintiff and the defendant, which means that there exists a common action based on illegal terms and therefore, if the plaintiff sues the defendant for causing harm negligently, then the defendant can claim that the act itself was illegal and therefore, the suit does not stand.

For instance, when both the plaintiff and the defendant together keep a tiger to tame in their house, and one day the defendant opens the cage and the tiger destroys the lawn, the plaintiff cannot sue the defendant for opening the cage of the tiger because keeping the tiger for taming purpose or any other purpose is illegal according to the law of the land.

Inevitable Accidents

This means that accidents which are inevitable and over which the defendant has no control, he cannot be sued for the same.

For instance, If I am travelling through a toy train and buy a ticket from the ticket counter, and that train gets de-railed in between because of which I get hurt. So, I cannot sue the ticket distributors for not informing me about the derailing, even they were not aware of this inevitable accident. Therefore, they are not liable.

Contributory Negligence

So, contributory negligence means where both parties are involved, no one party can be blamed for it. This means that when both the parties contribute to the action, and that action turns the table for one of them, the other one cannot be sued because it was both of them who contributed to the negligence of the act and therefore, it was contributory negligence.

Now that we know what negligence means, what its essentials are, and what its defences are, let us get into the practical aspect of the negligence and what people face in their daily lives.

Cases of Criminal Negligence

When a person is driving a car and texting at the same time, and in the meanwhile breaks someone else’s car, he is criminally negligent because the criminal laws of the land, do not allow texting and driving. Similarly, in a case where a person is drinking and driving and kills someone on the road, he can be held criminally negligent. The reason for this is that killing is a crime and similarly drinks and driving is also a crime, therefore he can be sued and held criminally liable.
When a nurse in a nursing home forgets to feed the patient and the patient dies because of the negligent act of the nurse that is when the nurse could be held criminally liable because it is because of her criminal negligence that the patient is put forward for a risk to life.
A caregiver in a hospital who is not paying attention and who provides someone with a deadly dose of medication could be considered criminally negligent.
A person who is supposed to be a caretaker of the nursery and fails to take care, in lieu to which someone takes away the child of another, can be held criminally negligent.

Advocates liability for Negligence in criminal cases

Section 5 of the Legal Practitioner’s (Fees) Act, 1925 defines the Indian position on advocates’ liability for negligence. No legal practitioner who has acted or has agreed to act shall, by reason only of being a legal practitioner be exempted from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.

Civil Negligence

There are different types of Civil Negligence, just as the way criminal negligence is. A lot of common day examples prove that negligence even in the ordinary sense can take us to courts. Some of the examples of civil negligence are as follows:-

1. A store which is very popular for the beers, and usually has a lot of traffic inside the store, holds a sale in the mid-season without any security can be held negligent in his acts.

2. A pharmaceutical company if launches a drug without testing it on the humans can be held negligent.

3. A driver who runs a stop sign and goes beyond the prescribed speed limit can be held negligent.

4. A person who owns a dog and leaves him open in the courtyard of another and the dog destroys the garden of another. The person can be held negligent.

5. If a person who owns a dog, leaves a dog open in the playground and the dog attacks the cat of another and injures her, the person can be held negligent.

6. An office where mopping is in process and does not put a sign of wet floor can be held negligent.

7. A company that does not gets incorporated according to the SEBI guidelines, can be held negligent.

8. A doctor who operates on the wrong patient can be considered negligent.

Conclusion

Therefore, in the above-mentioned circumstances, different levels of negligence can be traced. Some negligence may be civil while the other may be criminal. If we stop doing negligent acts, we will stop tolerating them too, and then only we will become careful about our actions about what we speak and what we do.

This article has been written by Mansi Tyagi, a student at Symbiosis Law School, Pune. Hindu Undivided Family is a religious yet legal entity. And thus, sons are expected to pay off the debts incurred by their father during his lifetime to ensure him an afterlife without any sins named under his name. The Doctrine of Pious Obligation and Antecedent Debts are concepts regarding the same, and explained in the article.

Doctrine of Pious Obligation

Joint families under Hindu Law are not limited to succession and a coparcenary system. The succeeding generation is also expected of some obligations, one of them being from the sons for the repayment of debts incurred by their father during his lifetime. Pious meaning religious, and under the doctrine of pious obligation, an expectation is casted on a son to repay his father’s loan and debts from the part of the ancestral property he holds under a religious duty towards his religion. However, this duty ceases to exist when the debts are avyavaharika, i.e. incurred for immoral or illegal purposes. As laid down by the Hon’ble Supreme Court in the case of ‘Sidheshwar Mukherjee vs. Bhubneshwar Prasad Narain Singh’^[1], the doctrine finds its origin in the historical smiritis. It was held that non-payment of debts was a positive sin and thus to save the father from the consequences of such a sin in the afterlife, it was a son’s duty to pay off the debts. However, under law, the position has been modified to an extent where a son is liable to pay off the debts only confining to the interest in the coparcenary property he holds. He cannot be otherwise made personally liable. Also, unlike the previous distribution where the son was liable to pay off the whole debt and the grandson and great-grandson only the principal amount, now all three generations are equally obligated to pay off the principal amount and interests.

Now moving on to the other aspect of this doctrine, what are the Avyavaharika debts. In the case of ‘S.M. Jakati and Ors. vs. S.M. Borkar and Ors.’[2] the Hon’ble Supreme Court the term ‘avyavaharika debt’ was explained. The most plausible one it found was the one translated by Colebrook as “a debt for a cause repugnant to good morals”. Under the said doctrine, a son is off the liability to pay-off the debts if they are taken for such ‘avyavaharika’ purposes. These purposes may be for keeping a concubine, or gambling, or bribing or any other immoral activity.

The next question is regarding the legal position of the said doctrine. It was laid down in the case of ‘Muttayan Chettiar vs. Sangili Vira Pandia Chinnatambiar’^[3] to some extent. The court declared the doctrine as not a mere religious one, but a legal one too. It was argued that such legal duty arises as a corollary to the right of a son in the ancestral property. The father’s superior interest in the property over the son converts the pious duty into a legal one onto the son who succeeds to such property. Also, it is anyways known to all that when the debts are taken by the father, in his capacity of being a Karta and for the family matters, the sons inheriting become bound to pay off such debt^[4]. It can thus be concluded that such discharges of debts by the sons are only limited to the interest they bear in the ancestral property and they can never be held personally liable by a creditor for the repayment of debts. The limitation to the doctrine, however, is its requirement of only the male heirs to discharge the debts of a father. Wives or daughters, even having a right in the property shares in contemporary times, are not liable to pay off the debts of the father or husband under the doctrine. Thus in the case of ‘Keshav Nandan Sahay vs. Bank of Bihar’^[5], when the Bank filed a civil suit against the sons and wife of the deceased under doctrine of pious obligation to pay off his loan, the Patna High Court held only the sons liable for it. It stated that since female sharers were not a part of the doctrine, they could not be made to pay for repayment even though they inherited a share from the ancestral property. Thus we may say, this is one limit to the doctrine.

Doctrine of Antecedent Debts

A Karta cannot sell or mortgage the joint property unless there is a legal necessity, or for the benefit of the estate, or there are religious obligations. Antecedent Debts are one such exception coming under the head of legal necessity. Antecedent Debts refers to the legal obligation prior to the time in question about paying off one. Even though the antecedent indicates something in prior to the time, the Hon’ble Supreme Court through various judgments have bifurcated an “Antecedent debt” into one in fact and the one in time. Also, for the doctrine to be applied under law, the debts shall be incurred in connection with a trade initiated by the father. Even though the sons under the Doctrine of Pious Obligation are expected to pay off the debts from their interest of the joint family property, another way for paying off such debt is the father using the ancestral property directly. In the case of ‘S. Swaminathan and Ors. vs. R. Jayalakshmi and Ors.’^[6] , the Madras High Court limited this privilege only to the father, and the grandfather or the great-grandson qua the son or grandson only. However, such validity of alienation of joint family property lies on the pious duty laid on the sons to repay the debts of the father which are not taken for immoral purposes. In another case of ‘Prasad and others vs. V. Govindaswami Mudaliar and others’[7], the Hon’ble Supreme Court laid down specifically that in cases a father disposes off any debt from the joint family property, he is entitled to do so and the same is binding over the sons, provided two conditions:

“a. the debt was antecedent to the alienation and

b. It was not incurred for an immoral purpose.”

Let’s take an example of a situation where the doctrine will be applicable and where not. Suppose the father took a loan of Rs. 10,000, out of which he got the first three on the mortgage of the family property and the rest seven for later consideration. In such a case, only the earlier amount will be deducted from the family property if any, not the latter. It is important to note that the debt amount must be independent of any transaction impeached afterwards. Thus the doctrine empowers the father to alienate the joint family property for paying off debts which he took for moral purposes before such alienation in time or in fact.

Conclusion

The two doctrines indicate the religious and yet in some cases the legal obligation of the sons to pay off and settle the debts for moral purposes taken by their father during his lifetime. In regard to this, the sons are only liable to the extent that they share an interest in the joint family property, and thus are not personally liable for such repayments. However, the non-inclusion of women heirs, widows or daughters from this liability leads to a major gap in the gender-neutral system of families in Hindu law, and still needs to be rectified considering that they now share equal rights in the family property like those of male heirs.

^[1] Sidheshwar Mukherjee vs. Bhubneshwar Prasad Narain Singh, AIR 1953 SC 487.

^[2] S.M. Jakati and Ors. vs. S.M. Borkar and Ors., AIR 1959 SC 282.

^[3] Muttayan Chettiar vs. Sangili Vira Pandia Chinnatambiar, AIR 1906 Mad 1.

^[4] Venkatesh Dhonddev Deshpande vs. Son, Kusum dattatraya Kulkarini, AIR 1978 SC 1791.

^[5] Keshav Nandan Sahay vs. Bank of Bihar, AIR 1977 Pat 185.

^[6] S. Swaminathan and Ors. vs. R. Jayalakshmi and Ors., MANU/TN/9641/2019.

^[7] Prasad and others vs. V. Govindaswami Mudaliar and others, AIR 1982 SC 84.

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This article is authored by Pankhuri Pankaj, a 3rd-year student pursuing BA-LLB (Hons.) from Vivekananda Institute of Professional Studies, affiliated to GGSIPU. She is currently interning with Lexpeeps. This article summarises certain key provisions of “irretrievable breakdown as a ground for dissolution” under the Hindu Marriage Act and is qualified in its entirety by reference to the Hindu Marriage Act, 1955.

INTRODUCTION

In India marriage is considered a sacrament and an integral part of the community which needs to be preserved at all costs. Marriage is considered the foundation of the family and an institution in the maintenance of which the public at large is entrusted. With the importance attached to the bond of marriage earlier in the Hindu community divorce was not even considered as an option, especially for the women, but with the enactment of the Hindu Marriage Act, 1955, a marriage can be dissolved by both the parties in marriage on any of the ground provided section 13 of the Act.

LAWS IN RELATION TO DIVORCE IN INDIA

From considering marriage to be a holy bond made by the almighty himself to accepting the need to relieve a woman from the obligation to be chained with a man for the rest of her life despite the fact that man is completely devoid of the virtues that a husband should possess, the Hindu marriage laws have paved a slow but steady path to accept the provision of divorce.

In India the divorce laws are categorised on the basis of two theories:

First is the Fault Theory which basically relies on the matrimonial offence of either of the parties in the marriage to refer to a dissolution of the marriage. There are in total 9 such matrimonial offences laid down under Section 13 of the Hindu Marriage Act, 1955 to act as a ground for divorce.

Second is the Mutual Consent Theory which lays down that in case both the parties in the marriage wish to detach from each other mutually without either of the parties being at fault then they should be granted the right. This theory is based on the concept that if two individuals are entitled to get married on their wish then they should be entitled to walk out of the union if they wish to. This theory has been enumerated under Section 13(i)(A) and 13(i)(B) of the Act.

WHAT IS IRRETRIEVABLE BREAKDOWN OF MARRIAGE?

Irretrievable breakdown of a marriage is a stage in a matrimonial relationship where the couple can no longer live together as man and wife. For the first time, this term was brought up in New Zealand where it was recognized that it needn’t be necessary for there to be some fault or other for a spouse to want to opt-out of a marriage and hence the law has to recognize and cater to that requirement.

The case of Masarati v. Masarati ([1969] 1 WLR 393, CA) the concept of irretrievable breakdown was considered for the first time in England and later in 1943 in the case of Blunt v. Blunt ([1943] AC 517, HL), the house of lords laid down more explicitly that no good can come out of legally upholding a marriage that has broken down to the point that there’s no scope for repair but separation. Under the English Law, it is considered that though marriage portraits a union of two individuals and is viewed as an example about companionship and love, rather than be put in a situation where a fault has to be brought out to prove to the court as to why the marriage wouldn’t work the option to opt-out of this bond and the choice to dissolve such a union should also be available with the same amount of dignity and ease.

Even the Muslim law has taken the liberty to consider the breakdown theory and has graciously given both the parties to the marriage the right to give talaq, but till date in India, there is still no codified law to recognize irretrievable breakdowns as a ground for the dissolution of a marriage. In a country where the institution of marriage is considered a sacrament and is personified as a relation of eternal love and promise, the idea that the individuals involved in this holy arrangement would grow out of the relationship and would wish to dissolve the union is hard to digest fact. But with the change in the scenario in the country and considering the infact dead marriages involved in long drawn battles the Supreme Court expressed special concern regarding this concept.

IRRETRIEVABLE BREAKDOWN OF A MARRIAGE IN INDIA

In the case of A. Jayachandra v. Aneel Kaur, the Supreme Court after pondering on the facts of the case considered the diffusion and disintegration of marital unity and deduced the irretrievable breakdown of marriage and granted divorce to the husband.

In the case of Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675), where after a few years of marriage the relationship between the individuals turned sour and various allegations of adultery and cruelty were raised. After carefully examining the facts of the case the trial court held that no cordiality was left between the parties after the allegations raised were of such nature and thus no possibility to reconnect the chain of marital life between them. From the facts itself, it was evident to the court that the marriage was wrecked beyond any scope for redemption and hence, the court held that there was no alternative left but to dissolve this marriage. Even though the High Court upheld the idea that the Trial Court made an error in granting divorce to the parties but the Supreme Court upheld the decision of the Trial Court and upheld the idea that it is best to sever the legal tie when the marriage becomes “fictional”.

Later in the case of Vishnu Dutt Sharma v Manju Sharma (Civil Appeal NO. 1330 OF 2009), the case of Naveen Kohli v. Neelu Kohli was brought up to appeal for a divorce on the grounds of irretrievable breakdown, the court held that the granting of the divorce on grounds of irretrievable breakdown would mean adding a clause to Section 13 of the Act through a judicial verdict. A mere direction of the court in earlier cases, without considering the legal position, was not a precedent to be followed by the courts. The court further added that only the legislature is empowered with the right to add a new clause making irretrievable breakdown of marriage grounds for a divorce. In the end, the plea was rejected by the Supreme Court and it was clarified that even though irretrievable breakdown was recognised under Naveen Kohli v. Neelu Kohli, the divorce was granted on the grounds of cruelty.

It is important to note that before considering the option of granting a divorce on irretrievable breakdown is to make sure the marriage was legally valid.

Even though the Indian judiciary has recognised the irretrievable breakdown of marriage but to accept this concept as a ground for divorce it is necessary for the society to take a step aside from the belief of marriage as sanctity and face the reality of marriage indeed being a special bond but one that can grow out of those exceptional qualities of unity and love too. It is the Indian judiciary which hears cases on a daily basis but laws are not made everyday, for one to see irretrievable breakdown see the light on the other end of the tunnel as a valid ground for divorce, it is only the legislature which can fulfil that thought

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