Disciplinary committee means a person or a group of people who are empowered to hear cases and proceedings involving professional misconduct of an advocate upon a complaint, revision or suo motu. The disciplinary committee is mainly formed to ensure that the members of the bar council of India or the bar council of any state are maintaining professional ethics and standards

S.9 of the Advocates Act empowers the state Bar Councils to constitute one or more Disciplinary Committees. Each Disciplinary Committee shall consists of 3 members. Two shall be selected from the members of the Bar Council and one shall be selected from the Advocates who are having more than 10 years of standing in profession. Among the three members the senior most in the profession shall act as the chairman of the committee.

Powers : S.42 of the Advocates Act deals with the power of Disciplinary committee. It provides that the Disciplinary Committee of the State Bar Council shall have the same powers same like the civil court under the C.P.C. in respect of the following matters.

1. Summoning and enforcing the attendance of any person and examining him on oath.

2. Requiring discovery and production of any documents.

3. Receiving evidence on affidavit.

4. Requiring any public record or copies of any record from any court or office.

5. Issuing commissions for the examinations of witness or documents.

The disciplinary committee has no right to require the attendance of the following persons.

(i) Any presiding officer of the court.

(ii) Any officer of the revenue court.

A presiding officer of a court shall be summoned to attend the proceedings of the Disciplinary Committee with permission of the High Court and an officer of the revenue court shall be summoned with the permission of the State Govt.

All the proceedings before the Disciplinary Committee of a Bar Council shall be deemed to a judicial proceedings within the meaning of S.193 & 228 of I.P.C and every such disciplinary Committee shall be deemed to be a civil court.

Enquiry Procedure: The main function of the Disciplinary Committee of the Bar Council is to enquire the complaints of professional misconduct against the Advocates award suitable

punishments. In the enquiry the following procedures prescribe under

S.35 of the Advocates Act should be followed.

1. On perusal of the complaint, if the Bar council is satisfied that it is a fit case for enquiry then the complaint shall be referred for enquiry to the Disciplinary Committee.

2. The Disciplinary Committee shall fix a date for enquiry and shall send notice to the concerned Advocate and the Advocate General of the State.

3. The Advocate charged with the professional misconduct shall appear in person or through the Lawyer. Similarly, the Advocate general also appear in person or through a lawyer.

4. The Disciplinary Committee should complete the enquiry proceedings within one year from the date of receipt of the complaint. Due to any reason, if the enquiry was not completed within one year then the complaint should be referred to the Bar Council of India for its disposal.

5. During the pendency of the enquiry if the term of the Disciplinary Committee comes to an end then the successor committee shall continue the enquiry.

6. After the enquiry due to the lack of majority opinion or otherwise if the Disciplinary Committee was unable to take a final decision then they shall seek the opinion of the chairman of the bar council and shall pass the final order following his opinion.

Case Laws:

1. Allahabad Bank Vs. Girish Prasad Verma BCI Tr. Case No. 49/1993 

Facts: A complaint was lodged by the Allahabad Bank against its advocate Girish Verma stating that the advocate was given 52 suits for filing and accordingly paid him the requisite court fee that was required for the same. The Advocate Girish Verma filed 50 out of 52 suits and misappropriated the court fees paid to him for the remaining 2 suits.

Held: The disciplinary committee of the Uttar Pradesh Bar Council held that the advocate had misappropriated the court fee paid to him by the complainant and hence ordered for striking off the advocates name from the roll of Uttar Pradesh Bar Council. It further held that “The legal profession is a noble profession and its members must set an example of conduct worthy of emulation.”

V. C. Rangadurai Vs. D. Gopalan 1979 SCR (1) 1054

Facts: The advocate Mr. V.C. Rangadurai did not disclose conflicting interest to his client and kept him in dark. By doing this the advocate deceived his client who had placed his trust with him. The disciplinary committee found the advocate guilty and suspended him for a period of six years. The same order was challenged in the Supreme Court.

Held: The Supreme Court of India upheld the order passed by the disciplinary committee as there was no doubt regarding the advocates misconducts but reduced the punishment from six years to one year.

Rajendra Pai Vs. Alex Fernandes AIR 2002 SC 1808

Facts: In a land acquisition matter the advocate along with 150 villagers filed a complaint. The advocate too was an interested party in the class action suit. The matter was settled and a compensation was given to the complainants. The advocate identified some claimants in opening a bank account wherein the amount of compensation was drawn. The said amount was withdrawn upon false identification. The disciplinary committee held that advocates name from the State roll and Bar Council of India shall be removed permanently.

Held: The order was then challenged in the Supreme Court wherein the disciplinary committee’s order was slightly modified. The Supreme Court was of the opinion that the punishment given was quite disproportionate to the facts and circumstances. It further stated that “Debarring a person from pursuing his career for his life is an extreme punishment and calls for caution and circumspection before being passed”. It reduced the punishment and directed that the advocate shall be suspended for a period of seven years.

Joginder Singh vs Bar Council Of India AIR 1975 Delhi 192 

Facts: In the present matter the advocate was convicted under section 473 of IPC. There were various other criminal proceedings pending and that the advocate Mr. Joginder Singh was out on bail. All these facts were concealed by him while entering his name in the state bar roll. When the advocate filed an application to the Bar Council of India to transfer his name from U.P. Bar Council to Bar Council of Delhi the Bar Council of India learnt about such concealment and issued a notice for striking of the advocate’s name. The disciplinary committee passed an order of barring the advocate from practicing in any court and removed his name from the roll.

Held: The advocate being aggrieved by the order of the bar council appealed in the Delhi High Court. The Delhi High Court was of the opinion that there was no interference required in the said matter as the order passed by the bar council was in accordance with the evidence, facts and circumstances. Thus, the appeal was rejected and the order of the disciplinary committee was upheld.

John D’Souza vs Edward Ani 1994 AIR 975

Facts: Mrs. Mary Raymond was a client of the appellant and had got her will drafted by him. She further kept the will in the appellant’s custody itself for execution. Mrs. Mary Raymond had appointed her husband as the executor of the will but unfortunately her husband passed away in the year 1974. Hence, she wished to make changes in the previous will and register a new one. Upon demanding the same, the appellant did not return the same. Mrs. Mary Raymond sent two letters claiming her previous will back but both her letters were ignored. Therefore, she was compelled to make an another will with Mr. George DaCosta. Even Mr. George DaCosta asked the appellant to return his client’s previous will that was in his custody to which the appellant blatantly denied and said that he does not have any will with him. Later, after Mrs. Mary Raymond’s death her son-in-law filed a complaint in the State bar council against the advocate i.e. the appellant. The said complaint was dismissed. An order or revision was obtained by the complainant and the matter was again placed before the state bar council who again dismissed the complaint stating there was no misconduct committed by the advocate. Aggrieved by such an order the complainant filed an appeal before the Bar Council of India who set aside the State Bar Council’s order and suspended the Advocate for a period of one year.

Held: On being aggrieved by such an order the advocate Mr. John D’Souza filed an appeal before the Supreme Court of India. After hearing the matter in detail, the Supreme Court was of the opinion that there was no evidence to prove that the will was returned upon the demands made and that the advocate had no right to withhold the will instead it was his duty to return the same when asked as the will was placed in his hands with the trust of his client. Hence, the order of the disciplinary committee of the Bar Council Of India was upheld.

Conclusion

The advocates play a significant role in the Judicial system. One relies on them completely by setting their complete trust. It is important for an advocate to discharge it’s responsibilities in a precise and efficient manner. Being in the legal profession and a officer of the court, an advocate is required to maintain high standards and uphold the dignity of the judicial office. Any misconduct of an advocate shall not be tolerable as this shall affect the trust and attitude of the people towards the judicial environment. In order to ensure that such irresponsible and irrational behaviour does not go unpunished a disciplinary committee has been set up and given powers to conduct such matters involving fraud, misconduct and cheating committed by an advocate towards his own client

The word ‘Professional Misconduct’ implies unethical actions. It implies, in the legal sense, an act intentionally committed by the people involved in the profession with the wrong intention. For his selfish ends, it implies any action or actions of an advocate in breach of professional ethics. It leads to ‘professional misconduct’ if an act results in a conflict with his profession and renders him ineligible to be in the profession. In other words, an act that disqualifies an advocate from continuing in the field of law.
In the Advocates Act, 1966, misconduct was not specified, but misconduct envisages infringement of discipline, although it would not be possible to set out exhaustively what would constitute misconduct and indiscipline, which, however, is broad enough to include wrongful omission or commission, whether done or omitted to be done intentionally or unintentionally.

It has been concluded In Re Tulsidas Amanmal Karim that any behaviour that in any way renders a person unfit for the exercise of his profession or is likely to influence or embarrass the administration of justice by the High Court or any other subordinate court may be regarded as misconduct.
In the case of a judge, if a lawyer’s behaviour is such that it makes him incapable of becoming a member of the honourable legal profession and unable to be entrusted with the responsible duties that a lawyer is called upon to perform, he would be guilty of errors.
Thus, two tests were laid down following this case:—
(a) The conduct of the advocate is such that, in order to remain a member of the honourable profession, he must be treated as unworthy.
(b) The lawyer’s conduct is such that it must be deemed unfit to be entrusted with the responsible duties which the lawyer is called upon to perform. These two tests have been interpreted as disjunctive and thus the fulfillment of any one of the
said criteria will be appropriate to regard the behaviour as misconduct.

1. Jagadish Singh &other v.T.C.Sharma

CITATION: BCI TR Case No.47/1990

Jagadish singh and others were employees of the Central Board of Education,New Delhi.They were arbitrarily dismissed from service by the Board. They approached T.C. Sharma an Advocate to file a case against the arbitrary dismissal. They paid Rs.1400 as fees for the case. Sharma gave a fake case number starting that he has field the case before the central Administrative Tribunal, New Delhi. On verification it was found that no such case has been field. Later they engaged another Advocate Mr. Bhati to file the case and got a a favorable order of reinstatement.

Judgment:

Therefore, they asked the return of Rs.1400 from T.C. Sharma. He refused to paythe same. So, the complainant filed a petition against him before the Delhi Bar Council alleging professional misconduct. Since Sharma failed to appear during the enquiry, the state Bar Council could not able to dispose off the case within one year. Hence, the case was transferred to the Bar Council of India. The Bar Council of India examined the petitioners, but the respondent was absent. Finally the Bar council of India passed an orderholding the respondent guilty of professional misconduct and awarded

the following punishments.1. Suspended him from practice for a period of 5 years. 2. Directed him to return the Rs.1400/-with 12%interest per annum. 3. Directed to give Rs.500 as cost to the complainant.

2. Bablal v.Subash Jain

Citation: BCI TR Case No.115/1986

The complainant and the Respondent are Advocates. The complainant filed a petition before the Madhya Pradesh Bar Council stating that the respondent to guilty of professional misconduct under s.35.

Issues:

The allegation of the complainant is that the respondent a practicing lawyer, is working as an Editor , Printer and Publisher of a weekly called “Aaj Ki Janta’’ He is the owner of the press which prints the weekly. It is also alleged that the respondent did not disclose these facts while applying for enrolment to the State Bar Council.

The respondent denied all the allegations. He contended that before enrolment, the job of printing and publishing was transferred to his wife and thereafter he was working only as an editor of the said weekly. Since the enquiry was not completed within one year, the case was transferred to the Bar Council of India. In the enquiry it was found that he enrolled in 1973 and continued as the printer, publisher and editor of the weekly till 1983. Only in 1983 printing and publishing was transferred in the name of his wife. But, by a general power of attorney from his wife the respondent was looking after the entire work of the weekly. Based on this findings the Bar Council of India held that the respondent is guilty of professional misconduct punishable under S.35 of the Advocates Act and passed the

Judgement:

1. He was suspended from practice for a period of one year. 2. Suppression of the fact that he is the owner of the weekly in the enrolment application cannot be treated as professional misconduct punishable under S.35

3.Baswarooponi v.Babulalsoni

Citation: BCI DC Appeal No.25/1992

Babulalsoni is the father of Balswaroopsoni. He filed a complaint against his son alleging professional misconduct before the Madhya Pradesh Bar Council.

The Issues are as follows: 1. A criminal case under S.307 I.P.C. is pending against him. 2. while appearing as a defence counsel for one munna in a criminal case No.125/89 he has introduced his own brother as Dwarha Pradesh and arranged him to stand as surety for munna. 3. He has withdrawn a sum of Rs.1500 deposited in the court in the name of Babulalsoni in a civil case without his consent. Before the State Bar Council, Babulalsoni personally appeared and produced certain documentary evidence in support of his case but the present appellant did not appear though many chances are given to him. Finally the Bar Council held that Balswaroopsoni is guilty of professional misconduct and passed an order removing his name from the Advocates Roll.

Against this order Balswaroopsoni filed an appeal the Bar Council of India. In the appeal he denied all the allegations against him but, failed to produce any documentary evidence in his support. Regarding the second allegation he took a defence that munna brought one person and introduced him as Dwarakha Prasad. Believing Munna’swords only he also introduced him to the court as Dwarakha Prasad. This defence was not accepted by the Bar Council of India because Balswaroopsoni knows that the person brought by Munna Dwarakha Prasad. Regarding the third allegation he took the defence that he is also one of the plaintiff in the said case and his father has given power to withdraw that amount of Rs .1500/.But no documentary evidence insupport of this difference was produced by him.

Judgment:

After hearing the parties the Bar Council of India reduced the punishment and suspended him from practice for a period of 5 years.

4.Indure Ltd.v.Deo Raj Guptha

Citation: BCI TR Case No.58/1993

The complainant company is one of the highest producer ofash handling system in the world, having large manufacturing and engineering factories. The respondent was the Advocate of the company and various cases related to the company was entrusted with him. In April 1986 NELCO precisions, a company located at Faridabad gave a false advertisement in the papers that Indure Ltd. is using the parts manufactured by NELCO precisions.

To stop this false advertisement Indure Ltd. instructed the respondent to serve a legal notice to NELCO. Notice was sent, but the notice has not given the desired result. Therefore, the respondent was instructed to file a case against NELCO. A plaint was prepared and it was approved by the petitioner company and necessary court fees was also paid to him. The respondent informed the complainant that he has filed the suit in the Delhi High Court and got a stay order. Infact no suit had been filed.

The complainant filed a complaint in the Bar Council of U.P.alleging professional misconduct against the respondent. They alleged that the respondent had made a similar type of misrepresentation earlier also when he was instructed to file a case against Anoel Industries Ltd.A criminal complaint was also filed against Gupta in this regard.

Issues:

The respondent filed a very briefcounter and failed to give any explanation about the serious allegation of professional misconduct. He simply prayed that for the same matter there is already a criminal case pending against him, so the Bar Council should not proceed with the complaint. When the petition was pending before the Bar Council, the criminal case was disposed off and he was convicted. Since the U.P Bar Council could not able to complete the enquiry within one year the petition was transferred to the Bar Council of India.

Judgment:

The Bar Council of India examined the complainant and the respondent and finally came to the conclusion that the allegations against the respondent the complainant has been proved beyond reasonable doubt and directed the removal of his name from the roll of Advocates and prohibited him from practicing as an Advocate.

5.Commisoner of Civil Supplies & Consumer Protection Dept. v. Balakrishnan

Citation: DC Appeal No.15/1995

Mr.Chandrakanth of Villupuram has filed a writ petition No.10589/90 in the Madras High Court praying for the release ofa Van TAH 4777 which was ceased by the Special Thasildar, Dindivanam on 5- 7-1990. The writ petition was dismissed on 11-7-1990.The respondent

Mr.V.Balakrishnan was the Advocate for Mr.Chandrakanth in the writ petition .After the dismissal of the Writ petition. After the dismissal of the writ petition the respondent sent the following telegram to the District Revenue Officer, South Arcot. “High Court of Madras in writ petition No.10589/1990 filed by Chandrakanth directed the District Revenue Officer to release the van TAH 4777 with 100 bags of paddy within one week. Do not sell the paddy.

Judgment:

1.The order of the State bar Council was set aside. 2.He was found guilty of professional misconduct under S.35 of the Act. 3.The act sending wrong telegram misquoting the content of the court order is not an act fit for an Advocate and he was reprimanded with strong words.

6.Banumurthy v.Bar Council of Andhar Praadhesh

Citation: DC Appeal No.3/1994

The appellant was a member of the Andhar Pradesh Judicial service. When he was working as Metropolitan Magistrate at Hydrabad there were certain allegations of corruption against him. A departmental enquiry was conducted and e was served with an order of compulsory retirement and retired on 30-7-1991.

Issues:

Compulsory retirement he applied for resumption of practice. The State Bar Council referred the matter to the Bar Council of India because he had been found guilty by the departmental enquiry. The Bar Council of India returned the matter to the Disciplinary Committee of the State Bar Council found him guilty of professional misconduct and suspended him from practice for a period of 2 years. Against this order the present appeal has been filed.

Judgment:

When the appeal was pending, he was allowed to resume his practice from 6-4-1994 by some court order. Bar Council of India continued the enquiry and finally held that since 2 years has already lapsed since his punishment for corruption charges, he shall resume his practice

7. Dr.D.V.P.Raja v.D.Jayabalan

Citation: BCI DC Appeal No.43/1996

The appellant lodged a complaint with the Bar Council of Tamil Nadu alleging that the respondents application in the form of complaints addressed to various authorities amounts to professional to misconduct. The State Bar Council passed a resolution that there is a prima facie case of professional misconduct and it was placed before the Disciplinary committee of the State Bar Council for its adjudication.

Issues:

Before the Disciplinary Committee the respondent raised a preliminary issue that the Disciplinary Committee has no jurisdiction in this matter because there is no connection between his standing as lawyer and his representation to various authorities. The Disciplinary Committee of the State Bar Council also accepted this argument and dismissed complaint without going in to the merits of the complaint. The DisciplinaryCommittee held that there was no nexus or proximity in his standing as a lawyer and his to various authorities.

Against this order an appeal was filed before Bar Council of India. In the Bar Council of India it was argued that the Bar Council of Tamil Nadu having passed a resolution that there is a prima facie case against the respondent, the Disciplinary Committee could not have dismissed the complaint without hearing it on merits.

Judgment:

After hearing both the sides the Bar Council of Tamil Nadu has passed a resolution that there is a prima facie case to be enquired in to by the Disciplinary Committee has no power to consider the question of its jurisdiction on the matter. The decision of the Bar Council of Tamilnadu is good and valid.

8. G. M. Hirmani v.Iswarappa

Citation: BCI DC Appeal No. 30/1995

The petitioner filed a complaint against the respondent. Mr.Iswarapa (a practicing lawyer) in the Bar Council of Karnataka alleging professional misconduct on the following grounds

Issues:.

1.The petitioner filed a partition suit against Grija Devi and Premadevi (O.S.No.293/87). The respondent Mr.Iswarappa was the general power of attorney holder of Smt. Girija Devi and Premadevi and also acted as Advocate for them in the said case. He misused his position as an Advocate and dominated the will of Girija Devi and Premadevi and purchased one portion of the suit property on 30-3-93 from them.

2. On 4-6092 Mr.Iswarappa took the signature of kirmani in a ten rupee bank bond paper promising to compromise the partition sui and thereafter committed theft of the same bond paper.

3. During the pendency of the partion suit Mr.Iswarappa often visited the house of the complainant in a drunken stage, through the complainant had asked him not to visit his house during the pendency of the suit.

4. Iswarappa has falsely filed a criminal case against the complainant (C.C.No.12/93) Which was dismissed after enquiry. During the enquiry Iswarappa admitted that he was the general power of attorney of GirijaDevi and Premadevi and has purchased their property for valuable consideration and paid the full amount and denied all other allegations.

Judgment:

The Bar Council of India also dismissed the appeal on the

following grounds

1. The complainant had failed to prove that Mr.Iswarappa took signature of the complainant on a blank bond paper.

2. He has failed to prove that Iswarappa has purchased the property by misusing his power of attorney.

3. He failed to prove that Iswarappa acted as an Advocate for Girija Devi Premadevi in the partition suit. Iswarappa produced evidence that he never acted as council of pemadevi and Girijadevi in the partition suit and one Mr.AtchuthaGiri was the Advocate for them in that partition suit. Thus the complainant had failed to establish a case of professional misconduct against the respondent.

9. N.S.(Appellant) v. K.V.(Respondent)

Citation: BCI DC Appeal No.14/198

The appellant was a Govt. Pleader and the respondent was a Senior Advocate of 33 years experience in the Madras High Court. On 12-11-1986 when he was going to the Bar Association, the appellant informed him that he madea mention of a case before a Judge in which respondent was appearing for the opposite party. The respondent told the appellant that he had not been previously informed about it and that he has no notice that the appellant is going to make a mention in the case; so“I will see to it’’. Immediately the appellant without any justification abused the respondent in a very bad manner using vulgar words.

Issues:

K.V. filed a complaint before the Bar Council of Tamilnadu. N.S.denied all the allegations, but admitted that heated exchange of words took place between them.

Judgment:

After examining both the parties, the Disciplinary Committee found him guilty of professional misconduct and suspended him from practice for a period of 6 months. N.S. challenged this order before the Bar Council of India. The main question in the appeal is whether the abusive language used by the appellant against the respondent would amount to professional misconduct. The Bar Council of India held that it amounts to professional misconduct but it held that the suspension of N.S. frompractice for a period of 6 months is not necessary and reprimanded with strong words.

10.P.R(Complainant)v.V.I(Respondent)

Citation: BCI TR Case No.101/1998

The complainant was the District Munisif Magistrate at Anakapalle from 19-11-84 to 8-4-85. The respondent was a practicing Lawyer there. The respondent was the Advocate for a respondent in a maintenance case. On 29-10-1985 when the case was called the Advocate as well as his client was absent, so ex-party order was passed. Therefore, the present respondent filed a contempt petition against the complainant(P.R) in his court.

Issues:

1.The High Court has passed transfer order to P.R. on 20-10- 1985 but, instead of handing over the charge and obey the order he continued there up to 8-11-1985 on certain pretest(arranged by him).

2.The complainant was wasting valuable time of the court and also the revenue of the Govt.P.R. referred this contempt petition to the District Judge. District Judge referred it to High Court. The court advised P.R. to lodge a complaint against V.I. before the State Bar Council for professional misconduct. Hence P.R. filed a complaint against the respondent alleging professional misconduct because he has filed contempt petition on false grounds under his signature against the presiding officer by name and bringing down the reputation of he presiding officer. The respondent also acted on his own and not under the instruction of his client.

Judgment:

The Bar Council of Andhra Pradesh after enquiry held that by filing the said contempt petition against the presiding officer with serious allegation, the respondent has committed professional misconduct. In the mean time the respondent was also selected and appointed as District Munsif Magistrate and he ceased to be an Advocate. So, the Bar Council expressed its inability to pass any order of punishment against him for professional misconduct. So, they forward this order and other records to the High Court of Andhra Pradesh for necessary action.

When, during the British period, testamentary powers were conferred on Hindus, the testamentary guardians also came into existence. It was the father’s prerogative to appoint testamentary guardians. By appointing a testamentary guardian the father could exclude the mother from her natural guardianship of the children after his death. Under the Hindu Minority and Guardianship Act, 1956, testamentary power of appointing a guardian has now been conferred on both parents.’ The father may appoint a testamentary guardian but if the mother survives him, his testamentary appointment will be ineffective and the mother will be the natural guardian. If the mother appoints a testamentary guardian, her appointee will become the testamentary guardian and the father’s appointment will continue to be ineffective. If the mother does not appoint, the father’s appointee will become the guardian. It seems that a Hindu father cannot appoint a guardian of his minor illegitimate children even when he is entitled to act as their natural guardian, as Section 9(1) confers testamentary power on him in respect of legitimate children. In respect of illegitimate children, Section 9(4) confers such power on the mother alone.

Meaning:

A Testamentary Guardian is one who is appointed by the will of the natural guardians of the minor.  The testamentary guardian becomes entitled to act as the guardian of the minor after the death of the natural guardian. He can exercise all the rights and powers of a natural guardian to such extent and subject to such restrictions as are specified in the Act and in the will. It is necessary for the testamentary guardian to accept ‘the guardianship. Acceptance may be express or implied. A testamentary guardian may refuse to accept the appointment or may disclaim it, but once he accepts, he cannot refuse to act or resign except with the permission of the court.

Who may appoint a testamentary guardian?

A testamentary guardian is a guardian appointed by the way of will. As per Section 9 (1) of HMGA, the Hindu Father (Natural Guardian of the minor child as per Section 6 of HMGA) can appoint a guardian by will for the person and separate property.

Who can appoint a testamentary guardian in case of an illegitimate child?

Section 9 (4) states that a Hindu Mother, who is entitled to be the natural guardian, can by will appoint a testamentary guardian for any minor illegitimate child to take care of him and his property

Section 9: The Hindu Minority and Guardianship Act, 1956:
Testamentary guardians and their powers.—

(1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both.

(2) An appointment made under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.

(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both.

(4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property or in respect of both.

(5) The guardian so appointed by will has the right to act as the minor’s guardian after the death of the minor’s father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.

(6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.

Under the old Hindu law, a Hindu father alone and no other had the power to appoint a testamentary guardian of his minor children. A husband had no power to appoint his minor wife’s father as her testamentary guardian under his Will. Kapila Annapumamma v. Ramanujeya Ratnam AIR 1959 AP 40. A father was entitled to appoint by will a guardian of the person of his minor children even to the exclusion of their mother. – Alagappa v. Mangatrai IL 40 Mad 672. A Hindu mother cannot appoint by Will a guardian even for the person of a minor. Under Mitakshara law, the management of the whole property including the minor’s share in joint family property would be vested not in the mother but in the eldest male member. It would be otherwise where the family is divided or where the minor has separate property.-Anusitavathi v. Siromani 1938 ILR 40 (Mad) A Hindu father or another senior coparcener of a Mitakshara family has no power to appoint, by will or otherwise, testamentary guardians for the coparcenary property of the minor- Chidambaram Pillai v.Rangaswami AIR 1941 Mad 561. The present Act preserves the old law insofar as it excludes the undivided interest of the minor in joint family property from the operation of Section 9. A father cannot appoint a testamentary guardian in respect of the undivided interest of a minor in joint family property- Pattayee v. Subbaraya 1980 HLR 500 (Mad).

A living arrangement in which an unmarried couple lives together under the same roof in a long-term relationship that resembles a marriage is known as a live- in-relationship. Thus, it is the type of arrangement in which a man and woman live together without getting married. This form of relationship has become an alternate to marriage in metropolitan cities in which
individual freedom is the top priority amongst the youth and nobody wants to get entangled into the typical responsibilities of a married life.
This form of living together is not recognized by Hindu Marriage Act, 1955 or any other statutory law. While the institution of marriage promotes adjustment; the foundation of live in relationships is individual freedom. Though the common man is still hesitant in accepting this kind of relationship, the Protection of Women from Domestic Violence Act 2005 provides for
the protection and maintenance thereby granting the right of alimony to an aggrieved live-in partner.

Legal status of live in relationship

The definition of live in relationships is not clear and so is the status of the couples in a live-in relationship. There is no specific law on the subject of live in relationships in India. There is no legislation to define the rights and obligations of the parties to a live-in relationship, the status of children born to such couples. In the absence of any law to define the status of live in
relationships, the Courts have come forward to give clarity to the concept of live in relationships. The Courts have taken the view that where a man and a woman live together as husband and wife for a long term, the law will presume that they were legally married unless proved contrary.
The first case in which the Supreme Court of India first recognized the live in relationship as a valid marriage was that of Badri Prasad vs. Dy. Director of Consolidation,1978 SCC (3) 527 in which the Court gave legal validity to the a 50 year live in relationship of a couple. The Allahabad High Curt again recognized the concept of live in relationship in the case of Payal Katara vs. Superintendent, Nari Niketan and others, wherein it held that live in relationship is not illegal. The Court said that a man and a woman can live together as per their wish even without getting married. It further said that it may be immoral for the society but is not illegal.

Again, in the case of Patel and Others., the Supreme Court has held that live in relationship between two adults without marriage cannot be construed as an offence. It further held that there is no law which postulates that live in relationships are illegal. The concept of live in relationship was again recognized in the case of Tulsa v. Durghatiya.In the case of S. Khushboo vs. Kanniammal & Anr., Anr (2010) 5 SCC 600 the Supreme Court held that living together is a right to life. Live in relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal” in the eyes of law. In this case, all the charges against Kushboo, the south Indian actress who endorsed pre- marital sex and live in relationship were dropped. The Court held that how can it be illegal if two adults live together, in their words “living together cannot be illegal.”
However, in one of its judgment Alok Kumar vs. State, the Delhi High Court has held that live in relation is walk in and walk out relationship and no strings are attached to it.

This kind o relationship does not create any legal bond between the partners. It further held that in case of live in relationships, the partners cannot complain of infidelity or immorality. Again, giving recognition to live in relationships, the Supreme Court in the case of D. Velusamy v. D. Patchaiammal (2010)10 SCC 469 has held that, a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfil some basic criteria. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’. It also held that if a man has a ‘keep’whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’.

The court made it clear that if the man has a live-in arrangement with a woman only for sexual reasons, neither partner can claim benefits of a legal marriage. In order to be eligible for ‘palimony’, a relationship must comply with certain conditions, the apex court said. The following conditions were laid down by the apex Court:
 The couple must hold themselves out to society as being akin to spouses;
 They must be of legal age to marry; they must be otherwise qualified to enter into a
legal marriage, including being unmarried;
 They must have voluntarily cohabited for a significant period of time.
Conscious of the fact that the judgment would exclude many women in live-in relationships from the benefit of the Domestic Violence Act, 2005, the apex court said it is not for this court to legislate or amend the law. The parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live-in relationship’. The court cannot change the language of the statute.

Following are the guidelines given by Supreme Court:

(1) Duration of Period of Relationship
Section 2(f) of the Domestic Violence (DV) Act has used the expression ‘at any point of time’, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.
(2) Shared Household
The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.
(3) Pooling of Resources and Financial Arrangements Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term investments in
business, shares in separate and joint names, so as to have a long-standing relationship, may be a guiding factor.
(4) Domestic Arrangements
Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.
(5) Sexual Relationship
Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc.
(6) Children
Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing-up and supporting them is also a strong indication.
(7) Socialisation in Public
Holding out to the public and socialising with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.
(8) Intention and Conduct of the Parties
Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.” Lately, a landmark judgment on 8-4-2015 by the seat comprising of Justice M.Y. Eqbal and Justice Amitava Roy, the Supreme Court decided out that couples living in live-in relationship will be presumed legally married. The Bench also added that the woman in the relationship would be eligible to inherit the property after the death of her partner.

Rights of a female in live in relationship

In June, 2008, it was recommended by the National Commission for Women to the Ministry of Women and Child Development to include live in female partners for the right of maintenance under Section 125 of Criminal Procedure Code, 1973. The view was also supported by the judgment in Abhijit Bhikaseth Auti v. State Of Maharashtra and Others. In October, 2008, the Maharashtra Government also supported the concept of live in relationships by accepting the proposal made by Malimath Committee and Law Commission of India which suggested that if a woman has been in a live-in relationship for considerably long time, she ought to enjoy the legal status as given to wife. However, recently it was observed that it is divorced wife who is treated as a wife in context of Section 125 of CrPC and if a person has not even been married i.e. the case of live in partners, they cannot be divorced, and hence cannot claim maintenance under Section 125 of CrPC. The partner of a live in relationship was first time accorded protection by the Protection of Women from Domestic Violence Act, 2005, which considers females who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife. Section 2(f) of the Act defines domestic relationship which means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living
together as a joint family. Thus, the definition of domestic relationship includes not only the relationship of marriage but also a relationship `in the nature of marriage’. In a case in Delhi, the Delhi High Court awarded Rs. 3000/- per month as maintenance to a maid who was in a live-in relationship with her widower employer.
In Varsha Kapoor vs UOI & Ors., the Delhi High Court has held that female living in a relationship in the nature of marriage has right to file complaint not only against husband or male partner, but also against his relatives. In the case of Koppisetti Subbharao Subramaniam vs. State of Andhra Pradesh AIR 2009 SC 2684, the defendant used to harass his live-in partner for dowry. In this case the Supreme Court held that the nomenclature ‘dowry’ does not have any magical charm written over it. It is just a label given to demand of money in relation to a marital relationship. The Court rejected the contention of the defendant that since he was not married to the complainant, Section 498A did not apply to him. Thus, the Supreme Court took one more step ahead and protected the woman in a live-in relationship from harassment for dowry.

Status of children of couples in live in relationship

Since there is no specific law that recognizes the status of the couples in live in relationship,hence the law as to the status of children born to couples in live in relationship is also not very clear.
The Hindu marriage Act, 1955 gives grants the status of legitimacy to every child irrespective of his birth out of a void, voidable or a legal marriage. But there is no specific law that raises any presumption of legitimacy in favour of children of live in partners. The future of children of live in partners becomes very insecure in case the partners step out of their relationship.
There comes the requirement of a strong provision to safeguard the rights of such children. The must be provision to secure the future of the child and also entitling the children to a share in the property of both the parents. Again in the absence of a specific legislation, the Supreme Court of India took the initiative to safeguard the interest of children of live in couples. In the case of Bharata Matha & Ors. vs. R. Vijaya Renganathan & Ors.,AIR 1992 SC 756 the Supreme Court of India has held that child born out of a livein relationship may be allowed to succeed inheritance in the property of the parents, if any, but doesn’t have any claim as against Hindu ancestral coparcenary property.

Conclusion:

Live-in relation i.e. cohabitation is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married.While the Supreme Court’s opinion might not have the undesirable effect on more and more couples preferring live-in relationships rather that opting to wed, it could certainly embolden more young men and women as they would now be convinced that there is no breach of law in the live-in relationship. One can only weigh the pros and cons and take into account the impact of their decision on their family and most importantly on themselves.

Whether the matter is civil or criminal, the testimony of witnesses is crucial to the presenting of the evidence in a court of law. Another important factor that is solely decided by judicial personnel is whether or not a piece of evidence is admissible. A witness’s testimony is documented as a series of questions and answers. A witness may only respond to a question; they are not allowed to make a speech to the court. Only the facts pertinent to the problem are included in the witness’ testimony. Examining a witness is the process of documenting the evidence..

Section 135 of the Indian Evidence Act deals with the examination of witnesses present. In the Code of Criminal Procedure, Section 311 empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to. Examination of witnesses is envisaged in the Code of Criminal Procedure whether in trials either session trial, warrant trial, or summary trial.

In the Code of Civil Procedure, examination of witnesses is enumerated in order XVIII of rule 4 to 16.

The Examination-in-Chief refers to the examination of a witness by the party who called that witness. Leading questions are not asked, and the exam is simply limited to pertinent facts. This examination’s goal is to elicit from the witness all relevant information about the party’s case that is in the witness’s knowledge. Every pertinent fact supporting the case of his client must be presented in a clear and chronologically accurate manner for the witness to testify to. Unless they are put through the test of cross-examination and come out uninjured from the rest, the claims made during the examination-in-chief lose a lot of credibility and weight.

Kinds of witness examination and their order
(Section 137 &138 of Indian evidence act) There are Three kinds of witness examination namely, (Section 137 Of Indian Evidence Act)

1. Examination In Chief
2. Cross – Examination
3. Re – Examination

Examination-In-Chief

The questioning conducted by the party who called the witness is known as a direct examination. On the opponent’s request, the testimony is then subjected to cross examination after being first scrutinized in chief.

A witness is given an oath or affirmation before testifying in court. It is noted his name and address. The party calling the witness then has the power to interrogate him in order to extract any pertinent information that is in his possession and would tend to support his (the party calling the witness’) position. This is referred to as the chief examination.

OBJECT OF EXAMINATION-IN-CHIEF

The purpose of the chief cross-examination is to extract the facts and establish relevant facts in favour of the party who called the witnesses. In other words, the goal of his examination is to learn all the information possible on the cases of the parties he is aware of from the witnesses. Leading questions cannot be asked without the court’s approval and must be kept to the relevant facts.

Cross-Examination

The adverse party’s cross-examination of a witness is known as cross-examination. A party’s opponent has the right to cross-examine his chief witness after he has been examined.

The importance of cross-examination is the questioning of witnesses summoned by one party’s attorney with the goal of either obtaining a favorable admission or discrediting the witness.

OBJECT OF THE CROSS-EXAMINATION

The objective of cross-examination is to determine whether the witness’s statements are true. It’s an attempt to dissect a witness or show that his testimony can’t be trusted.

Cross-main examination’s purpose was to examine the accuracy, authenticity, and value of the evidence presented in chief, to shift the facts already stated by the witness, to identify and expose differences, and to produce suppressed evidence to substantiate the cross-examining party’s case.

Re-Examination

Re-examination refers to the examination of a witness after the defendant who called him has conducted cross-examination. The person who summoned the witness may be re-examined if he so chooses and if it is required. The cross-examination-only objections must be the only ones that are brought up during the re-examination.

THE OBJECT OF RE-EXAMINATION

Re-examination refers to the examination of a witness after the defendant who called him has conducted cross-examination. The person who summoned the witness may be re-examined if he so chooses and if it is required. The cross-examination-only objections must be the only ones that are brought up during the re-examination..

Witness Protection Scheme, 2018

The Supreme Court (SC) has approved India’s First Witness Protection Scheme drafted by the union government and has asked the Centre, states and Union Territories to enforce” it in letter and spirit.

In the Supreme Court of India’s landmark judgment, Mahendra Chawla V/s Union of India,2018 SCC online 2678 the Supreme Court bench of Justice A.K. Sikri and Justice Ashok Bhushan, directed the formation of vulnerable witness deposition complexes in all district courts across the country in line with the Witness Protection Scheme (WPS) framed by the Centre. The bench further emphasized that the scheme would hold the field until there was any appropriate legislation to switch it

• The Scheme was drawn up by the Centre in 2018 with inputs from states/Union Territories, National Legal Services Authorities, civil society, High Courts and police personnel.
• The aim and objective of the scheme are to ensure that the investigation, prosecution, and trial of criminal offenses is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination

• According to the Witness Protection Scheme (WPS), the witness protection measures shall be proportionate to the threat and shall be for a particular duration not exceeding three months at a time. They may include:
• Ensuring that witness and accused don’t come face to face during investigation or trial;
  • Monitoring of mail and telephone calls;
  • Arrangement with the phone company to change the witness’s telephone number or assign him or her an unlisted phone number;
  • Installation of security devices, like security doors, CCTV, alarms, fencing, etc., at the witness’s home;
  • Concealment of identity of the witness by referring to him/her with the changed name or alphabet;
  • Emergency contact persons for the witness;
  • Close protection and regular patrolling around the witness’s house;
  • Temporary change of residence to a relative’s house or to a close-by town;
  • Escort to and from the court and provision of government vehicle or a state-funded conveyance on the date of hearing;
  • Holding of in-camera trials;
  • Allowing a support person to stay during recording of statement and deposition;
  • Usage of specially designed vulnerable witness court rooms which have special arrangements like live video links, one way mirrors and screens other than separate passages for witnesses and accused, with a choice to modify the image of face of the witness and to change the audio feed of the witness’s voice so that he/she is not identifiable;and
  • Ensuring expeditious recording of deposition during trial on a day-to-day basis without adjournments.

The programme identifies three categories of witnesses as per threat perception:

• CategoryA: Those cases where threat extends to the life of witness or family members during the investigation, trial or even thereafter.
• CategoryB: Those cases where the threat extends to safety, reputation or property of the witness or family members during the investigation or trial.
• CategoryC: Cases where the threat is moderate and extends to harassment or intimidation of the witness or his family members, reputation or property during the investigation, trial or thereafter

RIGHTS OF THE WITNESSES There should be certain standards of safety that need to be given to the witness by the state who comes forward to testify and it is the responsibility of the state to provide adequate protection to the witness. The various Law Commission Reports and the Witness Protection Scheme have identified certain rights that a witness possesses:

• Right to information of the status of the investigation and prosecution of the crime;
• Right to protection from harm and intimidation;
• Right to secure waiting place while at court proceedings;
• Right to submit evidence without revealing identity;  Right to occupy a secure place and transportation; and Right to be treated compassionately and with dignity and respect for privacy. It is mandatory for Investigating Officer/Court to inform each and every witness about the existence of “Witness Protection Scheme” and its features.

LEADING QUESTIONS

• A leading question is a question which suggests an answer. It is a question which itself contains the answer. In other words a leading question is one which leads the witness to the answer to be given by him.
• Section 143 permits leading questions to be put in cross-examination. However, section 142 prohibits a leading question being asked in chief examination or in a re-examination except with the permission of the court.

There are two main reasons for prohibiting leading questions in Chief -examination and Reexamination. Firstly, chief examination and reexamination are examinations of the witness by the party calling such witness and therefore such witness is presumed to be biased in favour of the party who brings him. Secondly, the party calling the witness is likely to know before hand what the witness will tell in the court, and if the party could ask the leading questions to his own witness, he would extract from the witness only such evidence that is favourable to him.

Indecent and scandalous questions?
Section 151 authorises the Court to forbid indecent or scandalous questions being asked even though such questions or inquiries may have some kind of bearing on the questions before the Court. But the Court however may permit such questions being asked if they relate to the facts in issue or to matters necessary to be known for the purpose of determining whether or not the facts in issue existed. More particularly in cases of rape, adultery, desertion, marriage and legitimacy, it may be necessary to put questions although they may be indecent and of scandalous form.

Questions intended to insult or annoy?
The Court is also authorised to forbid questions being put to the witness which appear to the Court to be intended to insult or annoy the witness although such questions may be proper but they are needlessly offensive in form. The reason behind forbidding such questions is that no respectable witness would be inclined to appear as a witness if questions are allowed to be put to him which are intended to insult or annoy him.

Hostile Witness

The term “Hostile Witness” does not appear in the Indian Evidence Act. When any witness is permitted by the court to be cross examined by the party who called him, the witness is popularly called hostile witness. If the court thinks from the evidence, demeanour, temper, attitude, tenor and tendency of answering the questions, from perusal of previous inconsistent statements of the witness that grant of permission is expedient to extract the truth and to do justice, the court can do so u/s. 154 of I.E. Act.
Hostile Witness-Credibility
• Simply because a witness has been declared hostile, his testimony does not become totally unreliable on that count. The evidence given by such witness remains admissible and there is no legal bar to pass a conviction upon his testimony, if corroborated by other reliable evidence. It is held by the Supreme Court that the evidence of hostile witness should
not be totally rejected if spoken in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.

Conclusion

The examination of witnesses is extremely necessary in any case, irrespective of its civil or criminal nature, and both the procedural laws clarify the examination of witnesses. Sections 135 to 166 of the Indian Evidence Act describe the examination of witnesses, including crucial aspects such as, for example, who may first interview the witnesses during the examination of the witnesses, what are the relevant facts agreed during the examination of the witnesses, what questions can be raised by the advocate during the cross-examination of the witnesses, what questions cannot be as follows.This Section does not deal with the admissibility of proof, but simply establish that a witness shall first be examined in chief,then cross examined and at last re- examined.