The term ‘freedom’ means absence from control. In the context of Article 19, it means the absence of control by the State. Articles 19(1)(a) to (g) guarantee certain freedoms to the citizens of the country. These freedoms are subject to restrictions contained in Articles 19(2) to (6). Originally Article 19 guaranteed seven freedoms. Article 19(1)(f) pertaining to the right to hold and acquire property was deleted by the 44th Constitutional Amendment, 1978. These freedoms are essential to promote the basic rights of the citizens as well as democratic values.
It means that there are many more rights that are related to the express rights specified in Article 19, but they are not addressed in the Article. Article 19 rights are fundamental rights that have been recognized as natural rights and inherent in citizenship (Dharam Dutt v. Union of India, (2004) 1 SCC 712). These liberties are not absolute; the state may limit, curtail, or regulate them to some extent for the reasons indicated in Articles 19(2) to (6).
Reasonableness:
In State of Madras v. V.G. Row, AIR 1952 SC 196, the Supreme Court stated that the reasonableness test should be applied to each particular statute on a case-by-case basis, and that there cannot be a norm or a general pattern of reasonableness. However, the Supreme Court has ruled in a number of cases that when determining reasonable restrictions, courts must evaluate criteria such as the duration and scope of the restriction, the circumstances and manner in which they are approved, the nature of the right infringed, and the aim of the restriction.
The burden to prove that restrictions are reasonable lies on the State. In Om Kumar v. Union of India, AIR 2000 Supreme Court held that the courts are entitled to consider the proportionality of restrictions. It means that restrictions should not be arbitrary or beyond what is required for achieving the object. Legislation that arbitrarily or excessively invades the fundamental rights cannot be said to be reasonable. Further, the restriction must have a direct or proximate nexus with the object which the legislation seeks to achieve. Supreme Court in State of Bombay v. Balsara, AIR 1951 SC 318 held that Directive Principles of State Policy is a relevant factor in considering whether the restriction on a fundamental right is reasonable or not. A restriction that promotes Directive Principles of State Policy is generally regarded as reasonable.
Article 19 and Social Media:
Nowadays, most people use social media and the internet to exercise their right to free expression. Social media has acted as a vital link between citizens and the rest of the world since its origin and continues to do so today, allowing individuals to express themselves and engage with one another. Even United Nations sessions and other international events are reaching out to citizens through social media. Citizens’ use of social media, however, must be accompanied with basic duties as a fundamental right..
Advantages of social media
To provide a true picture of any issues.
To strengthen the unity and brotherhood among people.
To make citizens think about what is right or wrong.
To reduce stereotypical mindset.
To express dissent against the government in a democratic country like India,
To express thoughts through books, blogs.
To give voice to the oppressed classes as well as women against violence and atrocities.
Disadvantages of Social Media:
Spreading hate against religion, race, etc.
Spreading false propaganda.
Defamation of persons, institutions.
Threat to internal security
May complicate the relations with friendly nations.
Incite violence, riots, and collective crime.
Major causes to regulate social media:
1. Restrictions on freedoms by Constitution itself:
Articles 19(2) to (6) impose restrictions on various facets of freedom mentioned in Article 19. It is important to note that the legislature cannot restrict the freedoms on any other grounds other than those mentioned in Article 19(2) to (6). But it also states that-
The restrictions must be imposed only under the authority of law.
Each restriction must be reasonable.
The restriction must strictly relate to the grounds mentioned in Articles 19(2) to (6).
2. The dignity of a nation:
Citizens must be responsible for their fundamental duties also while taking benefit of fundamental rights. Fundamental Duties under Article 51A provide few duties which shall be followed by citizens while enjoying their fundamental rights, so the same applies to Article 19. While taking the privilege of freedom of speech and expression a citizen must protect the integrity, unity, and sovereignty of India. Anything expressed on social media platforms must not degrade the dignity of any society, religion, etc, or our nation.
3. Cybercrimes by use of social media:
Cybercrime is the worst result of the use of social media. Cybercrimes as now in the present days are rapidly increasing and most of the cases are related to cyberstalking, cybercrime, money fraud, outraging the modesty of women by morphing photos or videos, etc are the bad example of cybercrime.
4. Loss of moral values:
Some people do not give respect to moral values and laws while using social media platforms. Especially people having the age of 14-22 years, don’t know how and in which manner the social media platforms are useful and wrong for them. The impact of using Social media can be seen in people as it is diverting them from their moral values and respect to life.
5. Public order and foreign relations:
Sometimes social media is also responsible for disturbing public order or foreign relations, by this way sometimes users are creating havoc on International relations or public order. Mob lynching, Riots are the worst condition due to fake or wrong news or videos circulating over social media platforms.
he Right against exploitation prohibits all types of forced labour, child labour and trafficking of people. This right is described under two Articles: 23 and 24.
The phrase Right Against Exploitation refers to freedom from all forms of exploitation. The Indian Constitution protects Fundamental Rights against exploitation. Slavery, beggarism, child labour, bonded labour, and other kinds of forced labour are all forbidden under the Indian Constitution as examples of exploitation. Human dignity is guaranteed by Articles 23 and 24, which deal with the right against exploitation.
India is currently the biggest democracy in the world. Behind this path of advancement and growth comes a formidable effort. Since all of recorded history, slavery has affected India. Slavery was ultimately totally eradicated in India after the Indian Penal Code of 1860, was passed, a process that had taken several decades. Such practices were banned by the Indian Constitution’s drafters in Articles 23 and 24. There is no room for exploitation, enslavement, or cruel treatment because every individual is guaranteed liberty and dignity under the Indian Constitution.
Important Terms
Begar
This is an instance of forced labour, which is defined as unpaid, involuntary work. In other terms, it may be argued that someone is forced to work against his or her will without receiving compensation.
Bonded Labour
Bonded labour is prohibited by Article 23 since it is considered a form of forced labour. A person is made to work under this system in order to pay off his debt. They receive relatively little money while getting paid double for the task they accomplish. These debts are frequently carried down to succeeding generations. As a result, it is referred to as a type of forced labour.
Human Trafficking
It refers to treating people like commodities for sale and purchase and involves the unethical trafficking of both women and children. Slavery is included in the definition of “trade in human persons,” even if it is not mentioned explicitly in Article 23. The Suppression of Immoral Traffic in Women and Girls Act, 1956, was passed by Parliament in accordance with Article 23 to criminalise human trafficking.
What do you mean by Exploitation? Exploitation is a fundamental violation of the Preamble of Indian Constitution as well as the Directive Principle of State Policy outlined in Article 39, which promotes economic equality between persons. Utilizing another person’s services improperly through the use of force is known as exploitation.
Right Against Exploitation Constitutional Provisions Indian constitution has specific safeguards to prevent the exploitation of weaker groups of society in order to protect against discrimination and foster personal liberty. It has been mentioned under Articles 23 and 24.
Article 23: This Article prohibits beggars, labour by force and other similar kinds of human trafficking. Any infringement of this clause will result in legal sanctions. Article 24: This article states that no kid under the age of fourteen may be employed in a factory, mine, or in any other dangerous occupation. Article 23 of Indian Constitution Human trafficking, forced labour, and other practices of similar nature are expressly forbidden by Article 23 of the Indian Constitution. Additionally, it specifies that anyone who violates this article will be prosecuted for their actions and subject to the appropriate legal penalties.
Article 23 of Indian Constitution
Article 23(1) Prohibition of traffic in human beings and forced labour, Human trafficking, being a beggar, and other similar forms of forced labour are forbidden, and anyone found in violation of this rule faces legal penalties. Article 23(2) Exception of Article 23 There is nothing in this article that prevents the State from enforcing forced service requirements for public purposes, but when it does so, it is forbidden to discriminate solely on the grounds of race, religion, caste, or class.
Article 23 forbids all forms of exploitation and also makes bonded labour as well as human trafficking unconstitutional. Article 23 States that it ensures citizen protection both against the State and Private Individuals. Article 35 – Empowers the Parliament to make laws for punishing one who violates Article 23. As per Article 35 of the constitution Parliament has enacted laws in pursuance of Article 23 for the protection of rights against exploitation.
Bonded Labour System (Abolition) Act, 1976
Suppression of Immoral Traffic in Women and Girls Act, 1956
Article 24 of Indian Constitution Children under the age of 14 are not permitted to work in mines, factories, or any other dangerous occupations, according to Article 24 of the Indian Constitution. The purpose of this article is to protect children’s welfare and to guarantee their safety and well-being. According to Article 39 of the Indian Constitution, the State has a responsibility to ensure that workers’ health and physical fitness are not neglected or compelled by economic necessity to engage in risky activities that are inappropriate for their age or physical capability.
Children are a country’s future. Every nation has a responsibility to ensure that its children have a bright future by ensuring their health, nutrition, and education. This will enable them to grow up to be capable citizens who will ultimately advance and develop the country as a whole. As a result, Article 24 is read in conjunction with Art. 39(e) and Art (f).
The employment of minors in benign and non-threatening jobs, such as those in grocery stores or on farms, is not, however, prohibited by this article.
Article 24 of the Indian Constitution Features
Under this Article, it is against the law to employ minors in dangerous jobs under the age of 14 when viewed in conjunction with Article 39(e) (f).It guarantees the well-being and protection of youngsters.
Article 39, places a responsibility on the State to make sure that kids are not mistreated or made to work in dangerous jobs out of necessity.
It does not forbid using kids for constructive work.
Child Rights Acts Under Article 24 of Indian Constitution The Indian Parliament passed a number of laws for the welfare and prosperity of children in order to fulfil the requirements imposed by Article 24 and by other international agreements like the UN Convention on the Rights of the Child.
Factories Act of 1948 The first law enacted after independence to establish a minimum age requirement for child labour in factories was this one. The Act established a 14-year-old minimum age. This Act was changed in 1954 to prohibit hiring children under the age of 17 for nighttime work.
Mines Act of 1952 This Act makes it clear that a mining worker cannot be younger than 18 years old. Consequently, it is forbidden to employ youngsters in mines.
Child Labour (Prohibition and Regulation) Act, 1986 This historic regulation was passed to combat the pervasive problem of child labour in India. It outlined the locations and procedures for both the legal and illegal employment of children. According to this Act, a person who has not reached the age of 14 is considered a kid. The 1986 Act forbids the use of children in 57 procedures and 13 occupations.
Child Labour (Prohibition & Regulation) Amendment Act, 2016 The employment of children under the age of 14 is been prohibited as per this Act. Additionally, it outlaws the use of minors (those between the ages of 14 and 18) in dangerous jobs and processes. With the passage of this amendment act, penalties for breaking this statute become more severe. This Act permits children to work as artists as well as in some household jobs.
Child Labour (Prohibition and Regulation) Amendment Rules, 2017 In order to create a comprehensive and detailed framework for the prevention, prohibition, rescue, and rehabilitation of child and adolescent workers, the government published the aforementioned Rules in 2017. The Rules provide protection for artists by defining the working hours and conditions and clarifying concerns relating to the employment of family businesses.
National Commission for Protection of Child Rights (NCPCR) In accordance with the Commission for Protection of Child Rights Act, 2005, the National Commission for the Protection of Child Rights (NCPCR) is a commission of the Indian government that was founded in 2007. This statutory body’s goal is to guarantee that all laws, policies, programmes, and administrative procedures adhere to the child rights protections outlined in the Indian Constitution and the UN Convention on the Rights of the Child.
The Center and the State both have this commission in place. Additionally, it aids in the quick resolution of Children’s Court cases involving crimes against children or other rights violations.
Note: Right to Exploitation allows exemption for compulsory military conscription and employment without payment for compulsory services for public purposes.
The Delhi High Court recently observed that a husband’s extramarital affair or betting habits cannot be grounds to implicate him under Section 304B of the Indian Penal Code (IPC), which punishes dowry deaths of wife [Parul versus NCT Of Delhi].
The Court made the observation while granting bail to a man whose wife had died by suicide in August 2022 within two years of their marriage.
“Insofar as the extra marital affair of the petitioner or the petitioner being into betting, is concerned, that cannot be a ground for implicating the petitioner under Section 304B IPC,” the Court said.
Justice Vikas Mahajan also noted that for invoking Section 304B of IPC, not only should there be harassment soon before the woman’s death, but such harassment of the woman must be related to a demand for dowry.
“The expression “soon before death” is a relative expression. Time lag may differ from case to case. All that is necessary that the demand of dowry should not be stale but should be a continuing cause for the death of married woman under Section 304B IPC,” the Court added.
By way of background, the bail applicant in this case had allegedly misrepresented that he was a law graduate and practicing as a lawyer when he got married to the deceased woman. The wife later came to know about his alleged extramarital affair and his betting habits as well. Due to the strained relationship, she filed various cases against him including a divorce petition. The Court was told that the couple had been living separately since April 19, 2021, and that the woman died by suicide on August 7, 2022. After her death, the deceased woman’s father filed a criminal complaint against the accused alleging that it was a case of dowry death. In his statement to the police, the father alleged that the accused had met the deceased woman a day before her death and threatened her leading to her suicide.
The Court, however, noted that the woman’s father did not allege that any demand of dowry was made by the accused when he allegedly met the woman the day before her suicide.
The Court observed that the woman had earlier made a complaint alleging cruelty under Section 498A IPC in 2021, which also included allegations of dowry demand having been made. However, the Court noted that this allegation related to a time before April 19, 2021, which was when the woman left her matrimonial home. The State also conceded that there was nothing on record to show that demand for dowry was made by the accused after the victim had left her matrimonial home.
The Court proceeded to allow release of the accused on bail after factoring in this aspect as well, namely that there was little to indicate that the woman was subjected to dowry-related harassment “soon before” her death.
Notably, the Court was also told that the woman suffered from anxiety and depression.
“It prima facie appears that the deceased was under treatment for anxiety and depression and the demand of dowry was not stated to be a stressor or trigger for her said medical issues, as shared by her with the treating doctor,” the Court observed.
The Court therefore opined that the accused was entitled to the presumption of innocence at the present stage of the case.
Since the criminal trial may be protracted, no useful purpose would be served in keeping the accused behind bars, the Court said while allowing the plea.
Certainly no. Simultaneously not allowed to do so for the sake of the dignity of advocacy as well as to save the spirit of Justice. Since the legal profession is considered a prestigious and Noble profession keeping in mind the provisions and rules of the Indian Advocate Act also not permitted to do so.
Definition:
Section 2(1) (a) – ” Advocate” means an Advocate entered in any role under the provision of The Advocate Act 1961.
If a person fulfils the conditions required for admission as an advocate, he may be enrolled as an advocate by the State Bar Council. The conditions to be fulfilled for being enrolled as an Advocate have been stated in Section 24 of the Advocate Act 1961. An application for admission as an advocate shall be made in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposed to practice. The State Bar Council is required to refer every application for admission as an advocate to its enrollment committee, which shall dispose of the application in the prescribed manner
The legal profession is considered to be a noble profession. A lot of tedious work and effort are to be put in, in order to attain justice for the client.
Advocates, in addition to being professionals, are also officers of the courts and play a vital role in the administration of justice.
Accordingly, the set of rules that govern their professional conduct arises out of the duty that they owe the court, the client, their opponents and other advocates.
Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. These rules have been placed there under section 49(1)(c) of the Advocates Act, 1961.
Advocacy requires a lot of focus, intricate reading, and work done to meet client needs and get court proceedings done. To protect and preserve the profession’s nobility, advocates are subjected to some restrictions.
Earlier people only those who could read and interpret various personal laws such as Hindu, and Muslim law were allowed to assist the kings and judges in rendering justice. An advocate has a law degree and has been permitted by the Bar Council of India to practice in a court of law.
The Bar Council of India puts various restrictions on advocates such as an advocate cannot take up other employment such as running a business while serving as an advocate.
These restrictions given by the Bar Council are enumerated from Rules 47 to 52 of the Bar Council of India Rules, framed under the Advocates Act 1961.
According to Rule 47. An advocate shall not personally engage in any business; he can be a sleeping partner in a firm and do business that is deemed appropriate by the State Bar Council, the nature of the business should not be inconsistent with the dignity of the profession.
According to Rule 48. An advocate may be the Director or the Chairman of the Board of Directors of a Company, provided none of his duties are of an executive character. Advocates are restricted from being a Managing Director or a Secretary of any company.
According to Rule 49. An advocate cannot be a full-time salaried employee of any government, person, firm, corporation or concern, during the reign of his practice. An intimation to the bar council is to be given if he wants to do so. An intimation, thus, will lead to the termination of his practice, as long as he continues such employment.
According to Rule 50. An advocate who has inherited, or succeeded by survivorship to a family business may continue it, but not personally participate in the management.
Advocates are permitted to do the following things such as review Parliamentary Bills for remuneration, edit legal textbooks at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal. (Rule 52)
So, it is necessary for advocates to adhere to the rules given by the Bar Council of India. Otherwise, they would be subjected to various penalties and would have to bear the consequences. So Advocates cannot do individual business in India.
Can a practising advocate be a partner in the partnership firm?
An advocate shall not personally engage in any business; he can be a sleeping partner in a firm and do business that is deemed appropriate by the State Bar Council, the nature of the business should not be inconsistent with the dignity of the profession.
can advocate act do business in India?
An advocate shall not be a Managing Director or a Secretary of any company. If the functions of the advocate as a member of the Board of Directors is in case executive in nature, then that action would be against rule 48. An advocate cannot run any business personally and earn a profit. Rule 47 strictly prohibits that.
Can an advocate incorporate a company?
Section 7(1)(b) of the Companies Act, 2013, clearly shows that advocates can file documents for incorporation of a company/LLPs.
Can an advocate practice other professions?
As a result, the Bar Council Rules (hereafter referred to as the rules) adopted under section 49(1)(c) of the Advocates Act, 1961 restricted practising advocates from working in other full-time jobs. Members of the profession are regarded as social leaders.
An Advocate cannot become a full-time salaried employee of any person, government, firm or company so long as he continues to practice. If he/she takes up any such employment, he/she will not be allowed to practice as an advocate so long as he continues in such employment.
However, if an advocate has inherited a family business, he/she is allowed to continue it. However, such an advocate cannot personally participate in the management of the family business.
Also, an advocate is allowed to review Parliamentary Bills for remuneration, edit legal textbooks at a salary, do press-vetting for newspapers, coach pupils for legal examination, and set and examine question papers. Subject to the rules against advertising and full-time employment mentioned in the Bar Council of India Rules, an advocate can engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal.
Apart from all the above-mentioned exceptions, an advocate can also accept any part-time employment after obtaining the consent of the State Bar Council. Such part-time employment must not conflict with professional work and must not be inconsistent with the dignity of the profession.
Advocate Acting As Real Estate Agent & Selling Client’s Property Amounts To Misconduct
What Is a Law Consultant?
A Law Consultant is a person who has the ability to advise on legal matters. He can advise you on your rights, duties and liabilities. He will also help you in drafting contracts, wills and any other documents that are related to your case. The job of the Legal Advisor is very important as he helps ensure that all laws are followed by all parties involved in a matter.
He/she helps you to solve your legal problems. They must act in accordance with the law and can only advise on your case. The legal advisor may or may not be a lawyer, so it is imp
Is an advocate an agent of his client?
The advocate appears in court on behalf of the client and pleads as an agent for him. The advocate is the one who appears in court on behalf of the client and pleads as an agent for him. An advocate is a person who practices law and has been appointed by a court of law.
Is an Advocate a real estate agent?
Advocate Acting As Real Estate Agent & Selling Client’s Property Amounts To Misconduct. The Supreme Court recently upheld a decision of the Bar Council of India to suspend an advocate for 5 years for gross professional misconduct after it was revealed that he had acquired a General Power of Attorney from his own client in a property-related case and subsequently sold the property.
1. RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT
1. Act in a dignified manner
During the presentation of his case and also while acting before a court, an advocate should act in a dignified manner. He should at all times conduct himself with self-respect. However, whenever there is proper ground for a serious complaint against a judicial officer, the advocate has a right and duty to submit his grievance to the proper authorities.
2. Respect the court
An advocate should always show respect towards the court. An advocate has to bear in mind that the dignity and respect maintained towards judicial office are essential for the survival of a free community.
3. Not communicate in private
An advocate should not communicate in private to a judge with regard to any matter pending before the judge or any other judge. An advocate should not influence the decision of a court in any matter using illegal or improper means such as coercion, bribe etc.
4. Refuse to act in an illegal manner towards the opposition
An advocate should refuse to act in an illegal or improper manner towards the opposing counsel or the opposing parties. He shall also use his best efforts to restrain and prevent his client from acting in any illegal, improper manner or using unfair practices in any matter towards the judiciary, opposing counsel or the opposing parties.
5. Refuse to represent clients who insist on unfair means
An advocate shall refuse to represent any client who insists on using unfair or improper means. An advocate shall excise his own judgment in such matters. He shall not blindly follow the instructions of the client. He shall be dignified in the use of his language in correspondence and during arguments in court. He shall not scandalously damage the reputation of the parties on false grounds during pleadings. He shall not use unparliamentary language during arguments in the court.
6. Appear in proper dress code
An advocate should appear in court at all times only in the dress prescribed under the Bar Council of India Rules and his appearance should always be presentable.
7. Refuse to appear in front of relations
An advocate should not enter an appearance, act, plead or practice in any way before a judicial authority if the sole or any member of the bench is related to the advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.
8. Not to wear bands or gowns in public places
An advocate should not wear bands or gowns in public places other than in courts, except on such ceremonial occasions and at such places as the Bar Council of India or as the court may prescribe.
9. Not represent establishments of which he is a member
An advocate should not appear in or before any judicial authority, for or against any establishment if he is a member of the management of the establishment. This rule does not apply to a member appearing as “amicus curiae” or without a fee on behalf of the Bar Council, Incorporated Law Society or a Bar Association.
10. Not appear in matters of pecuniary interest
An advocate should not act or plead in any matter in which he has financial interests. For instance, he should not act in a bankruptcy petition when he is also a creditor of the bankruptcy. He should also not accept a brief from a company of which he is a Director.
11. Not stand as surety for client
An advocate should not stand as a surety, or certify the soundness of a surety that his client requires for the purpose of any legal proceedings.
2. RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT
1. Bound to accept briefs
An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practise. He should levy fees that are at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.
2. Not withdraw from service
An advocate should not ordinarily withdraw from serving a client once he has agreed to serve them. He can withdraw only if he has sufficient cause and by giving reasonable and sufficient notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued to the client.
3. Not appear in matters where he himself is a witness
An advocate should not accept a brief or appear in a case in which he himself is a witness. If he has a reason to believe that in due course of events, he will be a witness, then he should not continue to appear for the client. He should retire from the case without jeopardising his client’s interests.
4.Full and frank disclosure to the client
An advocate should, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgement in either engaging him or continuing the engagement.
5. Uphold the interest of the client
It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means. An advocate shall do so without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused. An advocate should always remember that his loyalty is to the law, which requires that no man should be punished without adequate evidence.
6. Not suppress material or evidence
An advocate appearing for the prosecution of a criminal trial should conduct the proceedings in a manner that does not lead to a conviction of the innocent. An advocate shall by no means suppress any material or evidence, which shall prove the innocence of the accused.
7. Not disclose the communications between the client and himself
An advocate should not by any means, directly or indirectly, disclose the communications made by his client to him. He also shall not disclose the advice given by him in the proceedings. However, he is liable to disclose if it violates Section 126 of the Indian Evidence Act, of 1872.
8. An advocate should not be a party to stir up or instigate litigation.
9. An advocate should not act on the instructions of any person other than his client or the client’s authorised agent.
10. Not charge depending on the success of matters
An advocate should not charge for his services depending on the success of the matter undertaken. He also shall not charge for his services as a percentage of the amount or property received after the success of the matter.
11. Not receive interest in the actionable claim
An advocate should not trade or agree to receive any share or interest in any actionable claim. Nothing in this rule shall apply to stock, shares and debentures of government securities, or to any instruments, which are, for the time being, by law or custom, negotiable or to any mercantile document of title to goods.
12. Not bid or purchase property arising from legal proceedings
An advocate should not by any means bid for, or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any other person, any property sold in any legal proceeding in which he was in any way professionally engaged. However, it does not prevent an advocate from bidding for or purchasing for his client any property on behalf of the client provided the Advocate is expressly authorised in writing on this behalf.
13. Not bid or transfer property arising from legal proceedings
An advocate should not by any means bid in court auction or acquire by way of sale, gift, exchange or any other mode of transfer (either in his own name or in any other name for his own benefit or for the benefit of any other person), any property which is the subject matter of any suit, appeal or other proceedings in which he is in any way professionally engaged.
14. Not adjust fees against personal liability
An advocate should not adjust the fee payable to him by his client against his own personal liability to the client, which does not arise in the course of his employment as an advocate.
15. An advocate should not misuse or take advantage of the confidence reposed in him by his client.
16. Keep proper accounts
An advocate should always keep accounts of the clients’ money entrusted to him. The accounts should show the amounts received from the client or on his behalf. The account should show the expenses incurred for him and the deductions made on account of fees with respective dates and all other necessary particulars.
17. Divert money from accounts
An advocate should mention in his accounts whether any monies received by him from the client are on account of fees or expenses during the course of any proceeding or opinion. He shall not divert any part of the amounts received for expenses as fees without written instruction from the client.
18. Intimate the client on amounts
Where any amount is received or given to him on behalf of his client, the advocate must without any delay intimate the client of the fact of such receipt.
19. Adjust fees after termination of proceedings
An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to him from the account of the client. The balance in the account can be the amount paid by the client or an amount that has come in that proceeding. Any amount left after the deduction of the fees and expenses from the account must be returned to the client.
20. Provide a copy of theaccounts
An advocate must provide the client with a copy of the client’s account maintained by him on demand, provided that the necessary copying charge is paid.
21. An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.
22. Not lend money to his client
An advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client. An advocate cannot be held guilty for a breach of this rule if in the course of a pending suit or proceeding, and without any arrangement with the client in respect of the same, the advocate feels compelled by reason of the rule of the Court to make a payment to the Court on account of the client for the progress of the suit or proceeding.
23. Not appear for opposite parties
An advocate who has advised a party in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party in the same matter.
3. RULES ON ADVOCATE’S DUTY TO OPPONENTS
1. Not to negotiate directly with the opposing party
An advocate shall not in any way communicate negotiate or call for settlement upon the subject matter of controversy with any party represented by an advocate except through the advocate representing the parties.
2. Carry out legitimate promises made
An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court.
4. RULES ON AN ADVOCATE’S DUTY TOWARDS FELLOW ADVOCATES
1. Not advertise or solicit work
An advocate shall not solicit work or advertise in any manner. He shall not promote himself by circulars, advertisements, touts, personal communications, or interviews other than through personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.
2. Sign-board and Name-plate
An advocate’s sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General.
3. Not promote the unauthorized practice of law
An advocate shall not permit his professional services or his name to be used for promoting or starting any unauthorised practice of law.
4. An advocate shall not accept a fee less than the fee, which can be taxed under the rules when the client is able to pay more.
5. Consent of fellow advocate to appear
An advocate should not appear in any matter where another advocate has filed a vakalat or memo for the same party. However, the advocate can obtain the consent of the other advocate to appear.
In case, an advocate is not able to present the consent of the advocate who has filed the matter for the same party, then he should apply to the court for appearance. He shall in such application mention the reason as to why he could not obtain such consent. He shall appear only after obtaining the permission of the Court.
Conclusion:
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
A Hindu coparcenary is a much narrower body than a joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons, and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder of unbroken male descent. Ancestral property is a species of coparcenary property.
As stated above, if a Hindu inherits property from his father, it becomes ancestral in his hands as regards his son. In such a case, it is said that the son becomes a coparcener with the father as regards the property so inherited, and the coparcenary consists of the father and the son. However, this does not mean that the coparcenary can consist only of the father and his sons. It is not only the sons but also the grandsons and great-grandsons who acquire an interest by birth in the coparcenary property. Coparcenary begins with a common male ancestor and his lineal descendants in the male line within four degrees, counting from and inclusive of such an ancestor. The Mitakshara concept of coparcenary is based on the notion of a son’s birthright in joint family property.
Though every coparcenary must have a common ancestor to start with, it is not to be supposed that every extant coparcenary is limited to four degrees from the common ancestor. When a member of a joint family is removed more than four degrees from the last holder, he cannot demand a partition, and therefore he is not a coparcenary. On the death, however, of the last holder, he would become a member of the coparcenary, if he was fifth in descent from him and would be entitled to a share on partition unless his father, grandfather and great-grandfather had all predeceased the last holder. Whenever a break of more than three degrees occurs between any holder of the property and the person who claims to enter the coparcenary after his death the line ceases in that direction and the survivorship is confined to those collaterals and descendants who are within the limit of four degrees.
In Ceylon- Attorney-General of Ceylon v. A. R. Arunachalam Chettiar case, a father and his son constituted a joint family governed by Mitakshara School of Hindu Law. The father and the son were domiciled in India and had trading and other interests in India. The undivided son died and the father became the sole surviving coparcener in a Hindu Undivided family to which a number of female members belonged. In this, the court said that the widows in the family including the widow of the predeceased son had the power to introduce coparceners in the family by adoption and that power was exercised after the death of a son.
In Gowli Buddanna v. Commissioner of Income-Tax, Mysore a family consisting of a father, his wife, his two unmarried daughters and his adopted son. After the death of the father question arises whether the sole male surviving coparcener of the Hindu joint family, his widowed mother and sisters constitute a Hindu undivided family within the meaning of the Income Tax Act. In this case, it was held by the court property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights that an owner of property may possess. The property which yielded the income originally belonged to a Hindu undivided family.
In Moro Vishvanath v. Ganesh Vithal, the plaintiffs and defendants are descendants of one Udhav. The defendants are all fourth in descent from him. The plaintiffs, however, are, some fifth, and others sixth in descent from him. The question, however, whether, assuming them to be undivided, the plaintiffs are entitled to sue at all for a partition according to Hindu Law, is one of considerable importance and difficulty. It was urged that Plaintiffs cannot claim from the defendants any partition of property descended from that common ancestor. It was held that upon a consideration of the authorities cited, it seems to me that it would be difficult to uphold the appellants’ contention that a partition could not, in any case, be demanded by descendants of a common ancestor, more than four degrees removed, of property originally descended from him.
Suppose a coparcenary consisted originally of A, B, C, D, E, F, G and H, with A as the common ancestor. Suppose A dies first, then B, then C, then D, and then E, and that G has then a son I, and H has a son J and J has a son K. On E’s death, the coparcenary will consist of F, G,H,I,J and K. Suppose that G,H and J die one after another, and the only survivors of the joint family are F,I and K. Are I and K coparceners with F? Yes, though I is fifth in descent from A, and K is sixth in descent from A. The reason is that either of them can demand a partition of the family property Here the coparcenary consists of three Collaterals, namely, F,I and K.
The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, the joint and undivided property, that he, that particular member, has a definite share. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is ‘undivided coparcenary interest’. If a Mitakshara coparcener dies immediately on his death his interest devolves on the surviving coparceners.
The Supreme Court has summarized the position and observed that the coparcenary property is held in collective ownership by all the coparceners in a quasi-corporate capacity.
The incidents of coparcenary are:
1 The lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person;
2 such descendants can at any time work out their rights by asking for partition;
3 till partition each member has got ownership extending over the entire property conjointly enjoyment of the properties is common;
4 As a result of such co-ownership the possession and enjoyment of the properties are common;
5 No alienation of the property is possible unless it is for necessity, without the concurrence of the coparceners and
6 The interest of a deceased member passes on his death to the surviving coparceners.
Every coparcener and every other member of the joint family has a right to maintenance out of the joint family property. The right of maintenance subsists through the life of the member so long as the family remains joint. No female can be a coparcener under Mitakshara law. Even the wife, though she is entitled to maintenance.
Difference between Joint Hindu Family and Coparcener
1 In order to constitute a Joint Hindu family the existence of any kind of property is not required whereas in Coparcenary there exists an ancestral property.
2 Joint Hindu families consist of male and female members of a family whereas in Coparcenary no female can be a coparcener.
3 Coparcenars are members of the Joint Hindu Family whereas all the members of the Joint Hindu family are not Coparcenars.
Dayabhaga School on Coparcenar and Joint Hindu Family:
According to the Dayabhaga law, the sons do not acquire any interest by birth in ancestral property. Their rights arise for the first time on the father’s death. On death, they take much of the property as if left by him, whether separate or ancestral, as heirs and not by survivorship. Since the sons do not take any interest in ancestral property in their father’s lifetime, there can be no coparcenary in the strict sense of the word between a father and sons according to the Dayabhaga law. The father can dispose of ancestral property, whether movable or immovable by sale, gift, will or otherwise in the same way as he can dispose of his separate property. Since sons do not acquire any interest by birth in ancestral property, they cannot demand a partition of such property from the father. A coparcenary under the Dayabhaga law could thus consist of males as well as females. Every coparcener takes a defined share in the property, and he is the owner of that share. It does not fluctuate with birth and deaths in the family
Formation and Incident under the coparcenary property under Dayabhaga and Mitakshara Co parcenary –
The system of coparcenary Formation of Mitakshara coparcenary –
A single person cannot form a coparcenary. There should be at least two male members to constitute it. Like a Hindu joint family, the presence of a senior male member is a must to start a coparcenary. A minimum of two members are required to start and continue a coparcenary. Moreover, the relation of father and son is essential for starting a coparcenary. For example, a Hindu male obtains a share at a time of partition from his father and then gets married. Till the son is born, he is the sole male in this family, but he alone will not form a coparcenary. On the birth of his son, a coparcenary comprising of him and his son, will come into existence. When this son gets married, and a son is born to him, the coparcenary will comprise the father F, his son S, and his grandson SS.
S
SS
When a coparcenary is started, the senior most male member, with his son, that is, lineal male descendant, till four generations (inclusive of him) of the male line will form a coparcenary. If there is a lineal male descendant in the fifth generation, he will be a member of the joint family, but will not be a coparcener as he is removed from the senior most male member by more than four generations.
When all the coparceners die, leaving behind only one of them, the surviving coparcener is called the sole surviving coparcener. As a minimum of two male members are required to form a coparcenary, a sole surviving coparcener cannot form a coparcenary all by himself.
Why is coparcenary limited?
The coparcenary is limited to three generations of lineal male decadence of the last holder of the property owner. According to the tenets of Hinduism, only descendants up to three generations can offer spiritual ministrations to the common ancestor. Besides, only males can be coparceners because the females invariably leave the father’s house and assume domestic duties as they enter in the husband’s home.
Unmarried women, until 1956 only had the right of maintenance from the joint property, which included only the marriage expenses. The 1937 legislation allowed a widow to move into the shoes of her deceased husband and inherit his share. However, she does NOT become a coparcenary to this joint property.
The doctrine of reversions:
Hindu Succession Act, 1956: – For the first time, the widow got full rights in her husband’s property S. 14 of the Act 2005 Act -daughters, by birth, got coparcenary rights.
Women as coparcenaries:
Under Mitakshara coparcenaries, women cannot be coparceners. A wife, under Hindu law, has a right to maintenance out of her husband’s property. Yet she is not a coparcener with him. Even a widow succeeding to her deceased husband’s share in the joint family, under the Hindu Women’s (Right to Property) Act, 1937, is not a coparcenary. Unity of possession and community of interest – One of the basic features of a coparcenary is unity of possession and community of interest. All the coparceners jointly own the coparcenary property and till a partition takes place, and their shares are specifically demarcated, no one can claim ownership over any specific item of the coparcenary property.
The proceeds of an undivided family are enjoyed by its members as till a partition takes place, they hold everything jointly. Coparcenary property suggests ownership by one group collectively, and enjoyment and possession of it by not only this group exclusively, but by the joint family members who are outside this group.
The doctrine of survivorship –
The shares of the coparceners are not specific and are subject to change with the births and deaths of the coparceners, in the family. Under the traditional or the classical law, on the death of the coparcener in a joint family, his interest in the family property is immediately taken by those coparceners who survive him, and thus, he leaves nothing behind out of his interest in the coparcenary property for his female dependants. This phenomenon is called the doctrine of survivorship. On birth, he takes an interest, and enjoys it during his lifetime, but leaves nothing for his female dependants on his death. In the Dayabhaga system, one is entitled to succeed the property after the death of the male holder. Till then, he is just an heir.
Notional Partition –
The 1956 Act brought some changes in the coparcener system. Notional partition was taken into consideration to compute and demarcate the shares. i.e. Father and 2 sons 1/3rd each, though not specified as to what the specific exact division is.
Commencement of coparcenary –
One of the primary differences between Mitakshara and Dayabhaga Law is the commencement or the starting of the coparcenary itself. Under the Mitakshara law, the starting point of the coparcenary is the birth of the son in the family of a person, who after inheriting the property from his father, paternal grandfather, or paternal great-grandfather or obtaining property on partition holds it as a sole surviving coparcener. For example, in a coparcenary consisting of a father F, and his two sons A and B, A demands a partition, takes his share and then gets married, when a son is born to him, he will form a coparcenary with his son. Thus, the birth of a son is the starting point or reviving point of the Mitakshara coparcenary.
In complete contrast to it, under the Dayabhaga Law, the father so long as he is alive, holds the property as a sole or exclusive owner of it. On his death, if he is survived by two or more sons, they inherit the property and form a coparcenary. It is the death of the father that becomes the starting point of the formation of coparcenary, under the Dayabhaga Law
Notional Partition –
It was generally felt that radical reform was required in Mitakshara Law of the coparcenary and that where one of the coparceners died, it was necessary that in respect of his undivided interest in the coparcenary property, there should be equal distribution of that share between his male and female heirs, and particularly between his son and daughter. The Hindu Women’s (Right to Property) Act, of 1937 conferred new rights on the widows of coparceners.
The initial part of section 6 of the 1956 Act does not interfere with the special rights of those who are members of Mitakshara coparcenary, except to the extent that it seems to ensure the female heirs and daughter’s son, specified in Class I of the schedule, a share in the interest of a coparcener in the event of his death by introducing the concept of a notional partition immediately before his death and carving out his share in the coparcenary property, as of that date. The section proceeds first by making provision for the retention of the right of survivorship and then engrafts on that rule the important qualification enacted by the provision. The proviso operates only where the deceased has left surviving him a daughter’s son, or any female heir specified in Class I of the schedule.
Illustrations –
A and his son B are members of a Mitakshara coparcenary. A dies intestate. Surviving him is his only son B. His undivided interest in the coparcenary property will devolve upon B by survivorship as clearly envisaged in the initial part of the section and not by succession.
A and his sons B and C are members of a Mitakshara coparcenary. A died intestate in 1958. Surviving him are his widow A1 and his two sons. B and C continue to be members of the joint family. A’s undivided interest in the coparcenary property will not devolve by survivorship upon B and C but will devolve by succession upon A1, B, and C.
The amending act of 2005 is an attempt to remove the discrimination as contained in the amended section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu mitakshara coparcenery property as the sons have. Simultaneously, section 23 of the Act, disentitles the female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family, until a male heir chooses to divide their respective shares therein, has been amended by the amending Act of 2005. As a result, the disabilities of female heirs were removed. This great step and is the product of 174th report of the Law Commission of India. If P dies, leaving behind a mother M, and two sons A and B, and three daughters, E, F, G, how would the property devolve? – 1/6th each. If P dies, leaving behind a mother M, and a son S, and two daughters B and D, how would the property devolve – 1/4th each? P dies, leaving behind a widow W, and his mother M, and his two sons, A and B. – 1/4th each. P dies, leaving behind his mother M, and his two widows A and B, and a son S.- 1/3rd, 1/6th, 1/6th, and 1/3rd resp. P dies, leaving behind a son A and a daughter B of a pre-deceased SS, and two sons C, E and a daughter F of a predeceased daughter D. Triple succession. P dies, leaving behind his two widows A and B, his mother M, two widows C and D and a son S of a pre-deceased son and two daughters E and F and a son G of a predeceased daughter. Under the old Hindu law, conversion by a Hindu to another religion was a disqualification, which was removed by the Caste Disabilities Removal Act, of1850.
Under the Act, conversion does not disqualify an heir from inheriting the property of the intestate, but descendants of a convert are disqualified from inheriting the intestate. Thus, the children of the convert and descendants of the children are disqualified, but if at the time of death of the intestate, any one of them is a Hindu, he is not disqualified.
Succession to the property of a convert is regulated by the personal law applicable to the convert after his conversion. The provision of S. 26 may be explained by some illustrations:
An intestate dies leaving behind two sons A and B, and a grandson SS, from a pre-deceased son, who had converted to Islam before SS was born to him. SS is disqualified, and the entire property is inherited by A and B.
P had three sons A, B, and C. C converted to Christianity on 1.1.1979. P died on 1.1.1982. C will get the property (CDRA) P has three sons, A, B and C. A son R was born to C on 1.1.1976. On 1.1.1978, C converted to Islam. On 1.1.1979, after his conversion, S, a daughter was born to him. C died on 1.1.1980. P dies on 1.3.1982.
Agnates –
A person is said to be an agnate of another if the two are related by blood, or adoption only through males. S. 8 of the Hindu Succession Act, 1956 does not give the list of agnates, or state the order in which they are entitled to succeed, but S. 12 of the HSA lays down certain rules of preference, which are determinative of the order of succession among agnates, and S. 13 lays down certain rules for determining that order by computation of degrees, both of ascent and descent. In accordance with the rules laid down in S. 12, agnates and cognates may conveniently be divided into the following subcategories or grades:
Agnates: Agnates who are descendants –
They are related to the intestate by no degree of ascent. Such, for instance, are the son’s son’s son’s son, and the son’s son’s son’s daughter.
Agnates who are ascendants – They are related to the intestate only by degrees of ascent and no degrees of descent. Such, for instance, are the father’s father’s father and the father’s father’s mother.
Agnates who are collaterals – They are related to the intestate by degrees, both of ascent and descent, such, for instance, are the father’s brother’s son, and the father’s brother’s daughter.
Cognates –
A person is said to be a cognate of another if the two are related by blood or adoption, but not wholly through males. They may be related through one or more females. Thus, a mother’s brother’s son and brother’s daughter’s daughter are cognates. The three categories of cognates are:
Cognates who are descendants –
Such, for instance, are the son’s daughter’s son’s son and daughter’s son’s son’s son.
2. Cognates who are ascendants –
Such for instance are the father’s mother’s father and the mother’s father’s father.
3. Cognates who are collaterals –
They are related to the intestate by degrees, both of ascent and descent. Such, for instance, are the Father’s sister’s son and the Mother’s brother’s son.
Computation of degrees –
Application of the rules of preference governing order of succession laid down in S. 12 involves computation of the degrees of relationship between the intestate and his agnates or cognates. That relationship is to be reckoned from the intestate to the heir in terms of degrees with the propositus (intestate) as the starting point. There is no rule of discrimination or preference between male and female heirs, and both, male and female relatives by blood or adoption are treated equally. The computation of degrees of ascent or descent is to be so made that it is inclusive of the intestate. The relationship must be reckoned from the propositus to the heir in terms of degrees with the propositus as the terminus a quo (S. 13(ii). The other rule is that every generation constitutes a degree, either ascending or descending (S. 13(iii).
Rules of preference –
The order of succession among agnates or cognates is governed by three rules of preference, laid down in S. 12, which are common to both the categories of heirs. In order to determine which of the two or more claimants in the category of agnates or of cognates, recourse must be taken to rule 1 and 2, laid down in S. 12, and initially to rule 1. When one competing heir is not entitled to be preferred to the other under Rule 1 or 2, they take simultaneously, under Rule 3.
Rule 1 –
This rule is pivotal and enacts that, of two heirs, the one who has fewer or no degrees of ascent is preferred. Illustration – If the two competing heirs are two collateral agnates, that is, brother’s son’s daughter, (father’s son’s son’s daughter), and b) paternal uncle’s son (father’s father’s son’s son). The former, who has only 2 degrees of ascent, is to be preferred to the latter who has three degrees of ascent.
Rule 2 –
This rule enacts that where the number of degrees of ascent is the same, the one who has fewer or no degrees of descent is preferred. Illustration – The competing heirs are two collateral agnates, a) brother’s son’s daughter (father’s son’s son’s daughter), and b) brother’s son’s son’s daughter (father’s son’s son’s son’s daughter). Again, the former is to be preferred, because, in spite of having two degrees of ascent, each, the former has only three degrees of descent compared to the latter’s.
Rule 3 –
This rule enacts that where neither heir is entitled to be preferred, under rule 1 or two, they take simultaneously.
Illustration 1 – The competing heirs are two agnates, a) son’s son’s son’s son, and b) son’s son’s son’s daughter. There are no degrees of ascent, and the number of degrees of descent is the same in the case of both, and both stand in the same degree of descent. Therefore, neither heir is entitled to be preferred.
Illustration 2 – The competing heirs are two cognates, a) daughter’s son’s son, and b) son’s daughter’s son. The position is similar, to that of illustration 1 and they take simultaneously.
Hinduism is one of the oldest religions in the world; the Indian civilization is one of the oldest civilizations.
• Hindu law is said to be of divine origin. One theory suggests that it is derived from Vedas while Western jurists believe that Hindu law is based on ancient custom and usages. According to our Dharmshastras Hindu law is sacrosanct, inviolable and immutable.
• According to Mayne Hindu law is the law of Smritis as expounded in the commentaries and dig which are modified and supplemented by customs.
• “Hindu law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude.”- Henry Mayne.
• Hinduism in the ancient period did not differentiate between religion, law and morality.
They were all the same back then which was called ‘Dharma’ at that time
✓ Shruti (basically the Vedas)
✓ Smriti (which means the memorized word)
✓ Sadachara-which means the standards of morality and justice.
Modern Hindu Law
The codified law and uncodified law are two types of Modern Hindu Law. Codified law administers every Hindu. The concepts of schools of Hindu Law do not exist in codified law, however, they exist in uncodified Hindu Law. Vedas and Smritis were the form of sources in which, many scholars all around India, wrote the commentaries which formed the basis for schools of Hindu Law.
There is a two-fold classification of the sources of the Hindu law
1. Ancient sources 2. Modern sources
➢ Shrutis ➢ Judicial Decisions
➢ Smritis ➢ Legislative Enactments ➢ Commentaries and Digests
➢ Customs ➢ Rules of Equity, Justice and Good Conscience
Ancient Source
1. Shrutis (Shruti means ‘to hear’)
The term ‘shruti’ is derived from the word ‘shru’ which means ‘to hear’. It is considered to be the primary and paramount source of Hindu Law. It is believed that words of deity were revealed to sages. Shruti’s are the sacred pure utterance that has been enshrined in the Vedas and the Upanishads. No written material was available at that time so the primary way to communicate the knowledge was through sources of Hindu Law Shrutis Smritis Commentaries And Digest Judicial decisions Legislation Justice, equity and good conscience Custom orally by sages to their families and disciples which supplemented it and carried it forward.
• Shrutis are made up of 4 Vedas. 1. Rigveda 2. Yajurveda 3. Samaveda 4. Atharveda • Originally there were only the first three vedas and Atharveda was added later. Rigveda is considered a tree of which the offshoots are Yajurveda and Samaveda.
• Vedas described Hindu Society as made up of patriarchal families. Each family was considered a unit of which the head was the oldest living ascendant called ‘Grihapati’
2. Smritis (which is remembered)
Smriti refers to ‘ what is remembered’ The second source of Hindu Law is a body of texts that can be attributed to an author, unlike Shrutis which are authorless because they were transmitted and supplemented solely through generations.
There is a further classification of the term Smrities which is as follows
1) Dharma Sutra (Prose)
2) Dharmashastras (Poetry).
• There are many smritis but the well-known Smritis are
✓ Manu Smriti- the oldest Smriti written by ‘Manu’ but was supplemented further by generations because writing was not invented and it was transmitted orally. Manu Smriti gave Brahmins an eminent position in society and there were not any rights for women or shudras.
✓ Yajnavalikya Smriti- written between the period of Buddha and Vikramaditya. It was more systematically arranged and more concise than Manu Smriti and it also was more liberal than Manu Smriti, It recognized some rights for women in regard to inherit and hold property and also gave a better status to Shudras than Manusmriti.
✓ Naradas Smriti- This smriti was much moreprogressive than Yajnavalkya and manu because this Smriti recognized widow’s remarriage, a woman holding property etc also postulated that king-made law is higher than what is provided in Smriti’s. This Smriti also laid down rules regarding pleadings and evidence of witnesses which was not mentioned at all in the previous smritis.
3. Commentaries and Digests
After Shrutis came the era of commentators and digests. Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period of more than a thousand years from the 7th century to 1800 A.D. In the first part of the period, most of the commentaries were written on the Smritis as it contains law.
• But the problem is the Smritis have conflicting tests, for example, Manu smriti doesn’t give rights to women and Shudras at all but Yajnavalkya smriti and Narada Smriti do provide rights of varying degrees to both these communities. So in the later period, the works were in the nature of digests containing a synthesis of the various Smritis and explaining and reconciling the various contradictions.
• The evolution of the different schools of Hindu law has been possible on account of the different commentaries that were written by various authorities • Dayabhaga and Mitakshara are considered to be the two most important commentaries and digests.
4. Custom
Customs is a tradition that has been practised in society since ancient times. It is the type of practice which is under the continuous observation of the people and has been followed by the people.
• From the earliest period custom (‘achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee custom signifies a rule which in a particular family or in a particular class or district has from long usage obtained the force of law. Custom is a principal source and its position is next to the Shrutis and Smritis but usage of custom prevails over the Smritis. It is superior to written law. There are certain characteristics that need to be fulfilled to declare the custom to be a valid one.
• Custom to be law must be ancient, reasonable, certain, uniform, obligatory and observed continuously without interruption and should not be immoral or opposed to public policy or written rule of law or a statute unless and until it is expressly saved by the statute and should be construed strictly.
Essentials of a custom
✓ A custom must be continuous in practice
✓ A custom should not be vague or ambiguous
✓ A custom must have time antiquity
✓ There must be a complete observation of the custom
✓ It should be certain and clear
✓ A custom must not oppose the public policy which will affect the interest of the general public.
• Deivanai Achi v. Chidambaram (1954) Mad. 667-In the instant case it was held that in order to become legally sanctioned by law and binding on the people a custom must be continuous in practice, it should not be vague and ambiguous and should not oppose the well-established public policy. A customary rule must be in the complete observation of society.
• Laxmi v. Bhagwant Buva AIR 2013 SC 1204- In the instant case, the Supreme Court stated that a custom becomes legally enforceable when the majority of people make the continuous use of such practice.
• Onus -Generally when a custom attains judicial recognition no further proof is required, however in certain cases where the customary practices do not attain judicial recognition, the burden of proving lies on the person who alleges its existence.
• Munna lal v. Raj Kumar AIR 1972 SC 1493– In the instant case the Supreme Court stated that a custom brought before a court several times, the court might hold that such custom has been enforced by the law with the necessity of its proof.
Modern Source
Judicial Decisions
Judicial decisions are considered to be the most important ingredient of modern sources. A judicial decision is considered to be authoritative and binding.
Under the British regime the courts solved disputes by applying the Smriti law from the commentaries and digests and also adding their own interpretation and understanding of the law.
The doctrine of precedent was established and it was applied in the cases resembling the same facts and circumstances of a case already decided. So judicial precedents also got the same standing as law with time along with religious texts like shrutis and smritis.
2. . Legislations
Legislation is an important source of Hindu law. They have largely reformed, altered and supplemented the old Hindu law. They have also tried to bring uniformity throughout the country in the application and practice of Hindu law. • But the earlier legislations were made carefully so that they do not go against the established rules of Hindu Law. Most legislation in the starting period were reformative or were made to fill in on things that were not covered under the prevailing law.
✓ The Caste Disabilities Removal Act, 1850- To protect rights over the property of a person who has converted his religion or has been expelled from the caste or community
✓ The Hindu Widows Remarriage Act, 1856- To give Hindu Widows a right to remarry.
✓ The Hindu Wills Act, 1870- Hindus did not have any law that allowed them to make a will, this filled the gap.
✓ The Special Marriage Act, 1872- To allow inter-religious, inter-caste or intra-caste marriages.
• Modern Legislations • In 1944 a Hindu law Committee was made under the Chairmanship of Sir Benegal Narsing Rau.
• The purpose of the committee was to make a uniform code for Hindus and bring all Hindus under this code. A draft code was made in 1948. But Hindus did not agree, they said this new code would be an attack on their ‘sacred law’ Jawaharlal Nehru decided to drop this idea; Ambedkar didn’t like dropping this idea so he resigned in 1951 as a protest.
The Code was anyway later implemented in 4 parts.
✓ Hindu Marriage Act, 1955
✓ Hindu Succession Act, 1956
✓ Hindu Minority and Guardianship Act, 1956
✓ Hindu Adoptions and Maintenance Act, 1956
• These acts modernized the law applicable to Hindus by retaining the fundamental framework and by reforming the framework to a certain degree where needed.
3. . Rules of Equity, Justice and Good Conscience.
Equity, justice and good conscience is regarded as an important source of law. In case of conflict between two sources or in case of conflict between rules of Smritis and Commentaries the conflict is resolved by application of principles of equity, justice and good conscience.
• No law can be exhaustive and Equity, Justice and Good conscience are required for and law to be reasonably interpreted or created.
• The concept of ‘Dharma’ includes ‘Nyaya’ (Justice) and ‘Yukti’ (Equity)
• In Gurunath v Kamlabai 1951 the Supreme Court held that in the absence of any existing law, the rule of justice equity and good conscience was applied.
• Kanchava v. Girimalappa (1924) 51 IA 368 • In the instant case, the Privy Council barred the murderer from inheriting the property of the victim.
It promotes the use of technology for trials, appeals, and recording depositions, allowing video-conferencing for proceedings.
The bill makes video recording of statements of survivors of sexual violence compulsory, which can help preserve evidence and prevent coercion or manipulation.
The bill mandates that police must inform about the status of a complaint in 90 days, which can enhance accountability and transparency.
Section 41A of the CrPC will be renumbered as Section 35. This change includes an added safeguard, stipulating that no arrest can be made without prior approval from an officer at least at the rank of Deputy Superintendent of Police (DSP), especially for offences punishable by less than 3 years or for individuals above 60 years.
The bill requires that police consult the victim before withdrawing a case punishable by seven years or more, which can ensure that justice is not compromised or denied.
It allows absconding criminals to be tried in-absentia by the court and sentenced too, which can deter fugitives from escaping justice.
It empowers magistrates to take cognizance of offences based on electronic records such as emails, SMSs, WhatsApp messages etc., which can facilitate evidence collection and verification.
Mercy petitions in death sentence cases be filed within 30 days to the Governor and within 60 days to the President.
No appeal shall lie against the President’s decision in any court.
Introduction of new definitions
The term “audio-video electronic” has been introduced in Section 2 of the Bill’s definitions. The term “investigation” now has a new explanation that specifies that if any provisions of a Special Act conflict with the requirements of the Bill, the Special Act takes precedence. In the event of any inconsistency, investigation or inquiry under acts such as the Prevention of Money Laundering Act, 2002 or the Narcotic Drugs and Psychotropic Substances Act, 1985 shall take precedence over the Bill.
Introduction of new definitions
The concept of a Directorate of Prosecution has been introduced in Section 20 of the Bill for each state to establish (with a prescribed hierarchy) with the stated purpose of monitoring cases by scrutinizing police reports, expediting proceedings, and providing opinions on the filing of appeals, wherever applicable.
In relation to arrest
Section 35 of the Bill now combines Sections 41 and 41A of the CrPC2. In the case of an offence punished by less than three years in prison and a person who is infirm or over the age of 60, an arrest can be made only if an officer not lower than the level of Deputy Superintendent of Police obtains prior approval for such arrest.
In the case of a private person’s arrest, a time limit of six hours has now been imposed during which the private person must turn over the person apprehended to the police. Section 43 of the Bill allows a police officer to use handcuffs when arresting an accused in specific circumstances, most of which include major and heinous offences like as organized crime, terrorist acts, and so on.
In addition, in Section 43(1) of the Bill, the police are required to notify the family of a woman where she is being held and provide information on her arrest. Section 51(3) imposes a duty on a medical practitioner to send the examination report of a patient without delay.
On Attachment and seizure of property
Section 107 of the Bill adds a new provision allowing a police officer to apply to the Court or Judicial Magistrate with the approval of the Superintendent or Commissioner of Police for attachment of certain properties derived or obtained, directly or indirectly, as a result of criminal activity or the commission of any offence, or which are proceeds of crime. Notably, the term ‘proceeds of crime’ is defined in Section 111 of the Bill (which provides certain definitions under Chapter VIII pertaining to reciprocal arrangements) and is similar to the definition of the term under the Prevention of Money Laundering Act, 2002.
Furthermore, a new provision has been inserted under Section 499 of the Bill (corresponding to Section 451 of the CrPC3) requiring the Magistrate to prepare a statement of such property containing its description, as well as photographs and videography of the property, within 14 days of its production.
Power to remove obstructions by a police officer
Section 172 of the Bill is a newly inserted clause that requires individuals to follow the lawful directives of a police officer in the performance of any of his duties under this chapter relevant to the Police’s preventive action. Furthermore, the police officer has the authority to arrest or remove any person who resists, refuses, ignores, or disregards any direction provided by such officer. While this clause appears to be benign, it appears to significantly empower the police in their exercise of authority under the Bill’s provisions.
Introduction of timelines
Preliminary enquiry and investigation
One of the more major improvements requested by the Bill is an attempt to reduce delays in inquiry and trial. Timelines have been established for several stages of the criminal process, including the completion of the investigation and filing of a final report, as well as the trial of the offender.
For example, in Section 173(3) of the Bill (which corresponds to Section 1544 of the CrPC), for offences punishable by 3 years or more but less than 7 years, the officer in charge may conduct a preliminary inquiry within 14 days with the prior permission of the Deputy Superintendent of Police to determine if a prima facie case exists and proceed with the investigation if one exists. Section 173 of the Bill further states that information on a cognizable offence can be supplied to police either orally or through electronic communication, regardless of where the offence was committed.
Another alteration is contained in Section 174(4) (equivalent to Section 154(4) of the CrPC), which states that the complainant may apply to the Magistrate for the registration of a FIR only if the Superintendent of Police does not investigate the case.
Furthermore, Section 1555 of the CrPC (as amended by Section 174(1) of the Bill) now includes a fortnightly deadline for a police officer to submit the daily diary report to the Magistrate.
Concerning the power of a police officer to investigate a cognizable offence, the Bill now states that the Superintendent of Police may investigate the offence personally or appoint the Deputy Superintendent of Police to do so. A Judicial Magistrate may also take cognizance of a complaint against a public servant, according to the Bill.
Importantly, Section 193 of the Bill (equivalent to Section 1736 of the CrPC) now requires the Police to notify the victim or informant of the progress of the inquiry, including through electronic contact, within 90 days. Furthermore, the Bill allows for additional investigation after the chargesheet has been filed to the Magistrate but now requires that any additional investigation be completed within 90 days, with the Court’s consent.
Sanction for prosecution
Section 218 of the Bill (corresponding to Section 1977 of the CrPC) now states that the Government must decide whether to grant sanction for prosecution of judges or public servants within 120 days of receiving the request for sanction, and if it does not, the sanction is deemed to have been granted.
Committal to the Sessions Court
In cases involving offences that are exclusively triable by a sessions court and must be committed by the Magistrate under Section 2098 of the CrPC, Section 232 of the Bill stipulates a time period of 90 days to commit the offences to the sessions court, which may be extended for a period not exceeding 180 days for reasons to be recorded in writing.
Framing of charge, trial and judgement
In terms of charge drafting, the Sessions judge has 60 days from the date of the first hearing (as stipulated in Section 251(1)(b) of the Bill) to construct a charge against the accused in writing.
Section 257(1) of the Bill (equivalent to Section 235(1)9 of the CrPC) states that after hearing arguments and points of law, the judge must render a decision within 30 days of the conclusion of arguments, which may be extended for specific reasons to 60 days.
Finally, Section 392 of the Bill requires the Court to upload a copy of the judgment on its webpage within 7 days of the date of judgment.
Discharge
In relation to discharge, Section 262 (corresponding to Section 23910 of the CrPC) provides a time limit to the accused to prefer an application for discharge within a period of 60 days from the date of framing of charges. On the same subject of discharge, Section 274 of the Bill (corresponding to Section 25111 of the CrPC) has a newly inserted proviso providing that if the Magistrate considers the accusation as groundless, he shall, after recording reasons in writing, release the accused and such release shall have the effect of discharge.
Summary trialThe Bill now provides that the Magistrate may, after giving the accused a reasonable opportunity of being heard, for reasons to be recorded in writing, try in a summary way, all or any of the offences not punishable with death or imprisonment for life or imprisonment for a term exceeding 3 years.
Use of electronic communication and video conferencing in investigation, inquiry and trial
The Bill has sought to adopt electronic communication and video conferencing facilities at various stages including at the time of inquiry, investigation, and trial. For instance, the Bill permits giving information as regards commission of a cognizable in electronic form.
Issuance of process
Further, a summons issued by a Court under Section 63 (corresponding to Section 6112 of the CrPC), or a Police officer under the newly inserted Section 64(2), or a witness under Section 71, or a warrant may also be in the form of electronic communication. Section 94 of the Bill (corresponding to Section 9113 of the CrPC) now permits a Court or an officer in charge of a police station to summon electronic communication which is likely to contain digital evidence. Section 231 of the Bill provides that supply of copies of statements and documents to accused in other cases triable by Court of Session are permitted to be issued by the Magistrate in an electronic form.
Use of audio-visual electronic means in investigations
Under Section 176 of the Bill providing for procedure for the investigation of cognizable offence (corresponding to Section 15714 of the CrPC), the statement of the victim may also be recorded through audio-video electronic means including a cell phone, as also that of a witness under Section 265(3) of the Bill. Similarly, Section 185 of the Bill (dealing with search by a police officer corresponding to Section 16515 of the CrPC) requires the search to be recorded through audio-visual electronic means preferably by cell phone.
Conduct proceedings through electronic means
Section 355 of the Bill (corresponding to Section 31716 of the CrPC) now inserts a new explanation to subsection (2) providing that personal attendance of the accused includes attendance through audio-video electronic means.
Similarly, Section 532 of the Bill now allows all trials, inquiries, and proceedings, including summons and warrants; holding of inquiry, examination of complaint and witnesses; trials before a Court of Session, recording of evidence in inquiries and trials, trials before the High Court, all appellate proceedings, and such other proceedings, to be held in electronic mode, via electronic communication or audio-video electronic means.
Forensic experts
Another significant addition under Section 176(3) of the Bill is the requirement for the officer in charge of a police station to arrange for a forensic expert to visit the crime scene to collect forensic evidence of the offence and also arrange for videography of the process on a mobile phone or any other electronic device. Furthermore, this provision empowers a state government to notice the use of another state’s forensics facilities until a forensics facility is available in that state.
Cheating through electronic means
From the perspective of economic offences, particularly about the offence of cheating, Section 202(1) of the Bill corresponding to Section 18217 of the CrPC now includes cheating by electronic communications and a Court within whose local jurisdiction such electronic communications or letters or messages were sent or were received has been empowered to try such offence.
Custody of an accused
Under Section 187(2) of the Bill (corresponding to Section 167(2)18 of the CrPC), a judicial magistrate to whom an accused is forwarded may authorize the accused’s detention in custody for a term not exceeding 15 days in whole or in parts at any time during the initial 40 days out of 60 days or 60 days out of 90 days. Notably, the Magistrate may now authorize detention in police custody for more than 15 days provided there are sufficient grounds for doing so. However, such detention shall not exceed 90 days if the investigation relates to an offence punishable by death, life imprisonment, or imprisonment for a term of not less than ten years, or 60 days in the case of any other offence. While this alteration appears to be relevant for major offences, the intended usage and effect, when seen in connection with the proposed changes to the IPC, will need to be investigated further before such provisions are incorporated into law to avoid abuse or arbitrariness.
Furthermore, the Bill states that if the accused is not in custody (corresponding to Section 170 of the CrPC), the police officer shall take security from such person for his appearance before the Judicial Magistrate, and the Judicial Magistrate to whom such report is forwarded shall not refuse to accept the same on the grounds that the accused was not taken into custody.
Bail and Anticipatory Bail
Section 479 defines the terms bail, bond, and bail bond. The Bill now states that if a person is the subject of an investigation, inquiry, or trial for more than one offence in several cases, the Court may not release him on bond.
More importantly, in the case of anticipatory bail under Section 43819 of the CrPC, the new Section 484 of the Bill omits the elements set out in Section 438(1) for anticipatory bail issuance. Sections 438(1A) and (1B) are also missing.
Cognizance of special laws and cases against public servants
The Bill, under Section 210(1) now permits a magistrate to take cognizance of any offence also in relation to a complaint filed by a person authorized under any special law which constitutes an offence.
Further, the Magistrate may also take cognizance against a public servant arising in the course of discharge of his official duties subject to (i) receiving a report containing facts and circumstances of the incident from the officer superior to such public servant; and (ii) after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged.
Trial against an absconding person
Another significant addition to the Bill is the introduction of Section 356, which provides for an inquiry, trial to be conducted or a judgment to be passed against a proclaimed offender, in absentia.
When trying a proclaimed offender who has absconded to evade trial and there is no immediate prospect of arresting him, it shall be deemed to operate as a waiver of such person’s right to be present and tried in person, and the Court shall, after recording reasons in writing, proceed with the trial in the same manner and with the same effect as if he was present, under this Bill and pronounce the judgment. Furthermore, the proclaimed offender may not file an appeal unless he appears before the Court of Appeal. Furthermore, no appeal against conviction shall be allowed after three years from the date of judgment. This introduction appears to be squarely aimed at prosecuting those accused who have escaped Indian jurisdiction, and its efficacy will lie in how such inquiries and trials are actually conducted
Other relevant provisions
In relation to trial
Section 269(7) of the Bill (corresponding to Section 24620 of the CrPC), which is newly inserted, provides that if the attendance of prosecution witnesses for cross-examination cannot be secured despite giving the prosecution opportunity and taking all reasonable measures, it shall be deemed that such witness has not been examined for not being available, and the Magistrate may close the prosecution evidence for reasons to be recorded in writing and proceed.
Section 336 of the Bill provides that where any document or report prepared by a public servant, scientific expert, medical officer or investigating officer is purported to be used as evidence in any enquiry, trial or other proceeding under this Code and (i) such public servant, expert of the officer is either transferred, retired or dead; or (ii) such public servant, expert or officer cannot be found or is incapable of giving deposition or securing the presence of such public servant, expert or officer is likely to cause delay in holding the inquiry, trial or proceeding, the Court shall secure presence of successor officer of such public servant, expert or officer who is holding that post at the time of such deposition to give deposition on such document or report.
Witness protection program
By virtue of Section 398 of the Bill, the concept of a witness protection scheme has been formalized, which it is provided shall be notified by every state government.
Witness protection program
In relation to withdrawal from prosecution under Section 32121 of the CrPC, Section 360 of the Bill now states that no Court shall allow withdrawal from prosecution until the victim is given an opportunity to be heard in that matter.
Compoundable Offences
Section 359 of the Bill (corresponding to Section 32022 of the CrPC) now removes adultery from the list of compoundable offenses and also excludes defamation against the President, Vice-President, Governor of a State, Administrator of a Union Territory, or Minister in relation to his public functions when instituted on a complaint made by the public prosecutor.
Clarifications with respect to Limitation period and Superintendence of the High Court
The Bill now clarifies that (i) the relevant date for computing the period of limitation shall be the date of filing complaint under Section 223 or the date of recording information under Section 173; and (ii) that every High Court in the state shall exercise such superintendence over Sessions Courts.
Conclusion
In a nutshell, the proposed changes can be viewed as a much-needed panacea for improving the functioning of the criminal justice system in terms of the prescription of timelines for inquiry, investigation, and trial, as well as the formal adoption of audio-visual and electronic means for carrying out various processes. However, its effectiveness in the actual world is dependent on how such regulations are implemented and followed in letter and spirit.
The Court said a person not having cordial family relationships cannot contribute to the progress of the nation.
The Allahabad High Court recently observed that there is a “systematic design” to destroy the institution of marriage in India by promoting live-in relationships through films, television etc [Adnan vs State Of U.P. And 3 Others].
Single-judge Justice Siddharth said that the security, social acceptance, progress and stability that the institution of marriage provides to a person can never be expected in live-in-relationships.
But the infidelity to a partner in a married relationship and having a free live-in-relationship are being shown as signs of progressive society and youth in the country are attracted to it, the Court lamented.
“Live-in-relationship shall only be considered as normal after the institution of marriage becomes obsolete in this country, like in many of the so-called developed countries where it has become a big problem for them to protect the institution of marriage. We are proceeding to create great problems for us in future. There is systematic design to destroy the institution of marriage in this country and destabilize the society and hinder the progress of our country,” the Court said.
The Court further opined that a person not having cordial family relationships cannot contribute to the progress of the nation.
“He/she has no anchor in life to bank upon. Hopping from one relationship to another does not lead to any fulfilling existence. The brutish concept of changing partners in every season cannot be considered to be a hallmark of a stable and healthy society. The security and stability the marriage provides to an individual’s life cannot be expected from live-in-relationship,” the single judge said.
Pertinently, the judge also stated that the stability, social, political and economic of a nation depends on the middle-class population and its morality.
In this regard, the Court stated that “for the highest class there is no morality and the lowest class cannot afford to follow the same due to compulsions of poverty.”
“The middle-class morality cannot be ignored in a country like ours. Our country is mostly consisting of the middle class. The stability, social, political and economic of a nation depends on the size of the middle class only. The morality of the highest class and the lowest class has nothing to do with the same since morality dies in riches and chokes in poverty,” the order said.
These observations were made while granting bail to a person accused of rape on false promises of marriage.
The allegation against the accused was that he had befriended the victim and committed rape on the false promise of marriage for one year when he was in live-in relationship with her.
The Court said that while on the face of it the live-in relationship “sounds very attractive” and lures the youth but as time passes and middle-class social morality/norms start staring at their face such couples gradually realise that their relationship has no social sanction and cannot continue for life.
“They start feeling that in the absence of social acceptance of their relationship, they cannot live a fulfilling and normal social life. Their children will also face social eradication and may blame them for life. Some fortunate ones, who are only exceptions, continue with the same or get married. In the majority of cases the break-ups take place between the couple,” it added.
It went on to observe that after the breakup, it becomes “difficult for the female partner to face the society” as the middle-class society does not look upon her as “normal”.
“From social ostracisation to indecent public comments become part of her post-live-in relationship ordeal. Then she somehow tries to get her live-in-relationship with the male partner get converted into relationship of marriage having social sanction,” Justice Siddharth said.
The Court further said the family members of such female live-in partners desperately try to get their “daughter/sister” married to her male live-in partner.
“While it is not difficult to find another female live- in-partner or wife for the male counterpart of live-in-relationship, it is very difficult for a female partner to find a male partner for marriage and the social middle-class norms, irrespective of the religion of the female partner, militate against her efforts to regain her social status. They do consider a female coming out of such relationship as normal being,” Justice Siddharth said.
The Court also said that no family willingly accepts such a woman as their family member.
It further said there was no dearth of cases coming to the courts “where the female partner of an erstwhile live-in-relationship commit suicide out of disgust caused by socially ill behaviour”.
The Bench blamed films and television serials for contributing to what it called the eradication of the institution of marriage.
While referring to the neighbouring country Pakistan, the Court said the absence of middle class and middle-class morality there is testimony of the social, political, religious, and ethical unrest in that country.
“Most of the problems being faced by Pakistan are mainly due to lack of middle class. The middle class has a vested interest in maintaining social, political, religious and other orders of society since it has optimum means of fair survival and it does not want that it should be deprived of the same. Pakistan consists mostly of the highest class and poor class. The middle class is not much in that country,” the judge said.
While granting bail to the accused, the Court, among other things, took into account the “uncertainty regarding the conclusion of trial”, “one-sided investigation by police”, “ignoring the case of the accused side” and overcrowding in jails.
The Court concluded that the allegations of marital cruelty against the in-laws were so far-fetched and improbable that no prudent could conclude that there was a case.
The Supreme Court on Thursday quashed a criminal case under Section 498A of the Indian Penal Code (IPC) filed against the former in-laws of a woman on allegations of cruelty and harassment. [Abhishek vs State of Madhya Pradesh]
A bench of Justices Aniruddha Bose, PV Sanjay Kumar and SVN Bhatti observed that the allegations of marital cruelty and dowry harassment were general and omnibus and that the woman “clearly wanted to wreak vengeance against her in-laws.“
“They (the allegations) are so far-fetched and improbable that no prudent person can conclude that there are sufficient grounds to proceed against them … Permitting the criminal process to go on against the appellants in such a situation would, therefore, result in clear and patent injustice,” the top court noted.
The apex court was hearing appeals challenging a Madhya Pradesh High Court order that had refused to quash the proceedings against the woman’s former brothers-in-law and her mother-in-law.
The husband had earlier secured a decree of divorce that dissolved the marriage, although an appeal filed by the woman against the grant of divorce was pending before the High Court.
In the meantime, the woman made allegations of cruelty and eventually, a chargesheet was filed against all three accused citing offences under Section 498A of the IPC and the Dowry Prohibition Act, 1961.
The woman alleged cruelty, dowry harassment, and poor living conditions at her matrimonial home.
She also sent complaints to the Mumbai anti-corruption bureau and the Madhya Pradesh High Court Chief Justice against one of the brothers-in-law who had joined judicial service as a civil judge, a few months after the woman’s marriage to his brother.
The Supreme Court quashed the criminal proceedings initiated by the woman against her in-laws, noting that there were glaring inconsistencies and discrepancies in her version of events.
The Court noted that the woman had admittedly parted ways from her matrimonial home in 2009, but did not file a complaint against the in-laws until 2013, “just before her husband instituted divorce proceedings.”
On allegations against the judicial officer, the top court questioned why he would demand dowry from the complainant-woman, even if he were inclined to commit such an offence, when he was married to someone else.
Since the woman had also earlier confessed to making a vicious complaint against the judicial officer to the High Court, the top court concluded that her motives were not clean.
The Court also remained unimpressed by allegations that the woman’s mother-in-law had taunted the woman by saying that since she wore a maxi dress, “she should be undressed and made to dance on the street.”
The Court termed this allegation “wholly insufficient to constitute cruelty in terms of Section 498A IPC.”
The appeals were, thus, allowed. The criminal complaint and proceedings against the appellants (in-laws) were quashed.
Senior Advocate Sidharth Luthra with advocates Anmol Kheta, Dushyant Dahiya, Kumar Kashyap, Kausar Husain and Dinesh Chandra Pandey appeared for the former in-laws of the complainant-woman.
Advocates Abhinav Shrivastava, Sunny Choudhary, Sasmit Patra, RP Singh, Shivang Rawat, Pashupathi Nath Razdan, Nidhi, Mohit Girdhar, Sarthak Arora, Sandeep Sharma, Karan Bishnoi, Abhimanyu Singh, Nirmal Kumar Ambastha, Maitreyee Jagat Joshi and Astik Gupta appeared for the Madhya Pradesh government.
