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Wednesday, 18 May 2016

Treat Daughter-in-law as Family, not Maid: Supreme Court

Daughter-in-law should be treated as a family member and not housemaid, and she cannot be "thrown out of her matrimonial home at any time", the Supreme Court has said, while expressing concern over instances of brides being burnt and tortured in the country. The apex court said a bride must be respected in her matrimonial home as it "reflects the sensitivity of a civilized society."

A daughter-in-law is to be treated as a member of the family with warmth and affection and not as a stranger with respectable and ignoble indifference. She should not be treated as a house maid. No impression should be given that she can be thrown out of her matrimonial home at any time," a bench of justices KS Radhakrishnan and Dipak Misra said.

"Respect of a bride in her matrimonial home glorifies the solemnity and sanctity of marriage, reflects the sensitivity of a civilized society and eventually epitomizes her aspirations dreamt of in nuptial bliss. "But the manner in which sometimes the bride is treated in many a home by the husband, in-law and the relatives creates a feeling of emotional numbness in society," it said.

The apex court made the observations while upholding the sentence of seven-year jail term to a man for torturing his wife, who committed suicide. The bench said it was a matter of great concern that brides in several cases were being treated with total insensitivity, destroying their desire to live.

"It is a matter of grave concern and shame that brides are burned or otherwise their life-sparks are extinguished by torture, both physical and mental, because of demand of dowry and insatiable greed and sometimes, sans demand of dowry, because of cruelty and harassment meted out to the nascent brides, treating them with total insensitivity, destroying their desire to live and forcing them to commit suicide, a brutal self-humiliation of life," the bench said.

Monday, 16 May 2016

Case comment - Soni kumari vs. Deepak kumar

In India marriage is a sacrament. It is a relation between two souls.  But due to certain reasons best known to the husband and wife, if marriage tie cannot continued, the legislature thought it better to break down the marriage tie, if it is in the interest of both of them by mutual consent. Under the Hindu Marriage Act,1955 divorce by mutual consent is allowed but statutory period of six months has to be observed. In this case waiver in six months period was required by the parties.

In this case, the appellant wife and the respondent were married as per Hindu rites and ceremonies in 2009. Due to temperamental differences, trouble arose in their marriage and the parties started living separately since February, 2014. Subsequently they filed a mutual divorce petition under section 13-B (1) of the Hindu Marriage Act, 1955 in Saket District Court, Delhi. The Court allowed the first motion on mutually agreed terms but rejected the prayer of the parties for waiver of the statutory period of six months before the second motion could be filed. Therefore, on the question of waiver of the six month period, the matter reached the apex court. The waiver was desired because the respondent husband was to leave India owing to his professional obligations. The tickets for the journey were confirmed and it would not have been possible for him to return within a period of one to two years. This, therefore , would have jeopardized the divorced proceedings by causing the first motion to lapse.

The court noted with approval the proceedings in the court below. The only issue that remained to be answered was as to whether it was a fit case for the court to exercise its power under article 142 of the Constitution of India. The court relied on Vimi Vinod Chopra v. Vinod Gulshan Chopra (2013) 15 SCC 547 wherein it was observed that using the power under article 142 would be a prudent way to end multiple disputes between the parties and ensure complete justice. Further, court also took note of Devinder Singh Narulla v. Meenakshi Nangia (2012) 8 SCC 580, wherein it was observed: We have carefully considered the submissions made on behalf of the parties and have also considered our decision in Anil Kumar Jain case (2009) 10 SCC 415. It is no doubt true that the legislature had in its wisdom stipulated a cooling off period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage. It is also true that the intention of the legislature cannot be faulted with, but there may be occasions when in order to do complete justice to the parties it becomes necessary for this Court to invoke its powers under article 142 in an irreconcilable situation. After referring to the above cases, the apex court drew two conclusions. First, it opined that irretrievable breakdown of marriage is not a specified ground for divorce under the Hindu Marriage Act, 1955. Nevertheless the apex court may invoke the same in cases before it when it comes to exercise of power under article 142 of the Constitution and thereupon the court can waive the statutory period of six months stipulated in section 13-B of the Act of 1955. But this power of waiver is only available to the Supreme Court and not to any of the courts below. Secondly, this power under article 142 can be used even to convert a proceeding under section 13 of the Hindu Marriage Act, 1955, into proceeding under section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months. However, other courts cannot exercise this power.

Under normal circumstances, the parties have to wait for a six month period between the two motions for mutual divorce and their free consent to part ways amicably and on mutually agreeable terms has to subsist for the whole of the period. This period can also serve as a period of introspection and for making attempts at reconciliation. However, the apex court can, under suitable circumstances, waive off this period of six months as well. Based on these considerations the Apex court found it a fit case for exercising its power under article 142 and allowed the appeal by waiving the six month period. It must be stated that marriage is no doubt a sacred institution to be preserved by all means but it should not lead to suffering and loss of an individual’s happiness. Such a union can neither be in the interest of children nor of the spouses.

In this regard, Cheshire says, Geoffrey C. Cheshire observes...Divorce since it distinguishes the family unity, is of course, a social evil in itself , but it is a necessary evil, it’s better to wreck the unity of family than to wreck the future happiness of parties by binding them to companionship that has become odious. Membership of a family founded on antagonism can bring little profit even to the children. (G.C.Cheshire, “The International Validity of Divorces,” 61 Law Quarterly Review, 352 (1945).

Ending such loveless, soul-less and tragic unions is in the best interests of the concerned individuals and the society. There may be cases where the hope of reunion or reconciliation or of matters cooling off can be so low that it is best to waive off the statutory period of six months by using the extraordinary power given to Supreme Court. There can be cases where parties have been living separately for long periods or cases involving extraordinary levels of physical or mental cruelty or other cases which warrant use of such power. It must be noted however that this power ought not to be on a regular basis so as to nullify the express wish of the legislature as expressed in the statue. Also, perhaps the legislature should look at grounds realities and work on a suitable amendment.

In this judgement the Apex Court has rightly expressed that judiciary cannot go against the express will of the legislature, but it can mould the law in the exceptional social situations in the best interest of the society.        

Dr. Hari Mohan Mittal,
Professor - School of Law

Tuesday, 10 May 2016


Federalism and democracy are the two pillars which have to be honoured. The origins of Article 356 are in the Government of India Act, 1935 and reflect the superior powers of the governor general over the elected provisional governments. The powers of the executive used in before democracy came to India and are still there. If an elected government of the state level can be removed by the government at the centre, and that decision can be overturned by the judiciary where lays the final authority.

 The government at the centre however can only be removed by a vote of confidence in Parliament. There is no President rule at the centre. So democracy rule is at the centre but not in the state. A debate about 365 is urgent. If India is a democratic country, all legislatures are equal. If it is a federation, the centre has to respect the states equally. Article 365 provides that if the President either on the receipt of a report from the Governor of a state or otherwise is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance the provisions of this Constitution, he may make a Proclamation to the effect. The only ground on which a proclamation can be made under Article 356 is the failure of the Constitutional Government in the state. It includes failure on the part of the state to comply with to give effect to the directions given by the Union Government. Since the commencement of the Constitution Article 356 has been invoked on more than 110 occasions. Expect on few occasions the President has acted only when the Governor of the State has reported the failure constitutional machinery in the state. Usually President’s rule, invoking Article 356, has been imposed under the following situations-
a) A situation resulting from instability of the State Government.
b) A situation resulting from law and order problems.
c) Frequent defections and change of loyalties by the legislators.
d) On the ground of corruption, maladministration, misuse of power for partisan ends
e) The defeat of the ruling party in a state, at the Lok Sabha election.

Under Article 356 (3) a proclamation imposing Rule shall be laid before each House of Parliament and shall cease to operate at the expiration of two months, unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. The High Court had many options in dealing with the writ petitions challenging President’s Rule. It is extremely unlikely that the government will have the requisite majority in the Rajya Sabha, in which case President’s rule will cease to operate after expiration of two months.

The Single Bench of Uttarakhand High Court on 29th March,2016 ordered a floor test in the assembly and gave ousted Chief Minister Harish Rawat a chance to prove his legislative majority in the hill state that is under President’s Rule. Uttarakhand came under President’s rule, a day before Rawat was to prove his majority in the house. Hearing the petition by Rawat, the Court also said that all nine Congress rebels who were disqualified by the speaker will be allowed to take part in the vote. It said the result of the voting should be presented to the court. The court has ordered a registrar to oversee the vote in the assembly. “The High Court accepts the point that despite President’s Rule there is enough scope for judicial review to allow a floor test to take place.” The Uttarakhand political crisis began when nine Congress legislators, including former Chief Minister Vijay Bahuguna, whom Rawat replaced, revolted against the chief minister and turned to BJP. If President’s Rule is declared unconstitutional the floor becomes irrelevant and meaningless. Courts cannot and should not prevaricate nor procrastinate when such momentous issues arise, always remembering that its role is to determine the constitutionality of President’s Rule not its wisdom or morality. Capping a nine-day high-voltage political drama, the Centre on 27th March,2016 brought Uttarakhand under President’s rule citing a constitutional breakdown in the wake of a rebellion in the ruling Congress. President Pranab Mukherjee signed the proclamation under Article 356 of the Constitution dismissing the Congress government headed by Harish Rawat and placing the Assembly under suspended animation this morning on the recommendation of the Union Cabinet.

According to Article 356, President’s rule can be imposed in a state if a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution. The expression “breakdown of constitutional machinery” has not been defined in the Constitution. It can happen due to political reasons such as hung assembly, the government losing majority in the assembly, failure of any political grouping to form a government, defections and break-up of coalition or because of insurgency etc. Whatever may be the reason, the President has to be satisfied about of breakdown of constitutional machinery in the state. Generally, the governor sends a report in this regard to the Centre and it’s his/her report that forms the basis for the Union Cabinet’s recommendation to the President for invoking Article 356 to impose President’s rule.

However, the provision also says that the President can take such a decision even “otherwise” (i.e. even in the absence of governor’s report). But in any case, the President has to be satisfied that the constitutional machinery has broken down in the state. While sending a report to the Centre, the governor is not supposed to go by the advice of the state cabinet and is exercises his or her own discretion. On the contrary, the President has to go by the advice of the Union Cabinet. But he can seek clarifications from the council of ministers. Once President’s rule is imposed, the assembly ceases to function and the state comes under the Central government’s direct control. The assembly is generally kept in suspended animation. The powers of the state assembly become exercisable by or under the authority of Parliament. The executive power shifts from the council of ministers to the governor.

Once President Rule is imposed, it must be approved by Parliament within a period of two months. It can’t last for more than six months unless its extension is approved by Parliament.

SR Bommai case
In the SR Bommai case, the Supreme Court ruled in 1994 that courts can’t question the Union Cabinet’s advice to the President but they can question the material behind the satisfaction of the President regarding breakdown of constitutional machinery. It also said that the use of Article 356 was justified only when there was a breakdown of constitutional machinery and not that of administrative machinery. The Supreme Court in January 2006 declared the dissolution of the Bihar assembly as null and void in the Buta Singh case. It held that the governor’s report could not be taken at face value and must be verified by the council of ministers before being used as the basis for imposing President’s rule. The “drastic and extreme action under Article 356” cannot be justified on whims and fancies of the governor and the council of ministers should not accept it as “gospel truth”.

 A Division Bench of the Uttarakhand High Court on Wednesday stayed the previous order of the Single Bench for conducting a floor test to determine the majority in the House.  In 1994, the Supreme Court in the landmark SR Bommai vs Union of India case held, "In all cases where the support of the Ministry is claimed to have been withdrawn by some legislators, the proper course for testing the strength of the Ministry is holding the test on the floor of the House."They added, "the assessment of the strength of the Ministry is not a matter of private opinion of any individual be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such a demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides”. The court also made clear the circumstances under which the decision to impose President’s Rule can be made without going for a floor test. The court held, “The sole exception to this will be a situation of all-pervasive violence where the Governor comes to the conclusion — and records the same in his report — that for the reasons mentioned by him, a free vote is not possible." These guidelines laid down in the SR Bommai vs Union of India judgement were not even considered in the Uttarakhand case. On 27 March, just a day before the vote of confidence in the Uttarakhand Legislative Assembly was to be taken, and Chief Minister Harish Rawat was to prove majority support for his government, the Centre dismissed the Congress government and imposed President's Rule, citing a breakdown of governance. With the disqualification, the strength of the 70-member Uttarakhand Assembly has been reduced to 61.

When the Uttarakhand High Court staying the floor test, this question will prop-up again when the incumbents will be asked to prove their strength. Whether the nine disqualified candidates should be allowed to vote in the floor test should be debated on the basis of legal and constitutional provisions. If a little caution had been observed while reading the Constitutional provisions; the guidelines in the SR Bommai vs Union of India had been followed, then the common man would have retained his trust in the democratic process of this country. The apprehensions regarding the probable misuse of Article 356 (which empowers the Union to take over the government of the state on the recommendation of the governor or otherwise) can be visibly gauged from the above Constituent Assembly debate — the apprehension of which to a great extent has come to fruition with the abject misuse of the provision on numerous occasions, since the enactment of the Constitution. However, it was in the SR Bommai case in 1994 that the Apex Court made the indiscriminate and arbitrary use of the Article 356 almost impossible by laying down certain guidelines to be taken into account before invoking the Article 356. But time and again, the principles laid down in the landmark judgment have been openly flouted, the most recent being the imposition of President’s Rule in Uttarakhand.

Among various directives issued in the Bommai case, the two that had the most far-reaching ramifications were that it allowed judicial review of the decision of the imposition of the President’s Rule and made it imperative that the majority enjoyed by the council of ministers be tested on the floor of the House, which was not followed in Uttarakhand and in many cases in the past. Further, the High Court has power of judicial review as to whether there has been malafide exercise of power while imposing the President Rule or not?

Therefore, better course on the part of Division Bench of High Court could have been, if it would have given a chance to prove the majority by council of ministers on the floor of House in Uttarakhand.

Dr. Hari Mohan Mittal,
Professor - School of Law