Month: December 2023

Textualism

Textualism is a method of statutory interpretation that asserts that a statute should be interpreted according to its plain meaning and not according to the intent of the legislature, the statutory purpose, or the legislative history. A textualist endeavors to give effect to the words of the Constitution and statutes. If the meaning of the words is clear, the judge goes no further. If they are ambiguous, the judge attempts to discern their meaning using well-developed rules of construction.

Whereas textualist approaches to constitutional interpretation focus solely on the text of the document, originalist approaches consider the meaning of the Constitution as understood by at least some segment of the populace at the time of the Founding. Originalists generally agree that the Constitution’s text had an “objectively identifiable” or public meaning at the time of the Founding that has not changed over time, and the task of judges and justices (and other responsible interpreters) is to construct this original meaning.

Textualism and constitutionalism are two distinct legal theories. Textualism is a formalist theory of interpretation that emphasizes the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as the intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law. On the other hand, constitutionalism is a political theory that emphasizes the importance of limiting government power by establishing a constitution that outlines the powers and duties of the government and protects individual rights. Constitutionalism is often associated with the rule of law, separation of powers, and the protection of individual rights and liberties. While textualism is a theory of interpretation, constitutionalism is a theory of governance. It is possible for a judge to be both a textualist and a constitutionalist, but the two theories are not interchangeable. For example, a judge who is a textualist may interpret the Constitution based solely on the text’s ordinary meaning, while a constitutionalist may interpret the Constitution based on its original meaning, the intentions of the framers, and the principles of constitutionalism.

Textualism appeals to many, but especially those who accept the fixed view of the constitution, coupled with a belief that a constitution is, principally, one important device through which citizens are protected from unwarranted state power, including unwarranted judicial power. Requiring that judges interpret constitutional provisions in light of the meaning of the constitution’s text respects the role of its creators (sometimes, but not always, the founders of the state) in fixing, on behalf of the community, the basic framework of government and the limits within which state power is to be exercised. Political decisions about that proper framework and its constituent limits have, on this theory, already been made in a proper forum by those in whose hands such decisions were rightly placed. Their decisions have been communicated and should not, lest stability and legitimacy be threatened, be subject to continuous revisiting and review, particularly by (typically unelected) judges who lack the authority enjoyed by the constitution’s authors. The discovery of textual meaning is (it is thought) a largely factual matter, requiring none of the moral and political reasoning appropriately undertaken by the creators of the constitution. If constitutional change is required, the constitution itself sets procedures through which such changes can be affected. Should these prove ineffective and yet change still be warranted, then the people, as the sovereign power underlying constitutional democracies, have the authority to abandon the constitution through revolution, peaceful or not, and to substitute something else. But so long as the constitution remains in force, the semantic content of its rules must be taken as governing all matters of constitutional law.

Despite its obvious appeal, Textualism – or as it is sometimes called, “strict constructionism”—faces a number of difficulties. First, semantic content is not always fully determinate or stable from one generation to the next. This is especially true of words and phrases like “equality,” “due process of law,” “fundamental justice,” “free and democratic society,” “freedom of religion,” and so on. These seem to lack the determinate and relatively stable semantic content of phrases like “five-year term” or “two-thirds majority.” The evaluative concepts expressed by the former are highly contestable politically, perhaps even “essentially contestable,” and their understanding tends to vary from one generation to the next. They therefore cannot serve the role suggested by the fixed view.

Textualism faces further difficulty. Even when the meaning of a word or phrase used in a constitution is constant and plain for all to see, it is not always the case that it is considered dispositive. For example, taken in terms of both its original and (perhaps different) contemporary meaning, the First Amendment of the American Constitution is clearly violated by a whole host of American laws, e.g., those proscribing incitement, perjury, and libel. Taken literally, the First Amendment renders unconstitutional any law that in any way restricts freedom of speech. If so, then it is unconstitutional in the United States to punish untruthful witnesses, prevent primary school teachers from uttering vicious racial slurs against their minority students, or convict those who incite crowds to violence. But such state actions have never been understood to violate the First Amendment, leading to the inevitable conclusion that more than semantic meaning governs its interpretation and application. And this is generally, if not universally, true of modern states and their constitutions. But if more than meaning governs, what else counts? The most obvious choice, especially for those attracted to the fixed view, are the “intentions” of the framers. In response to the suggestion that the American First Amendment prohibits laws against perjury, a defender of the fixed view is likely to reply: “But that can’t possibly be what the framers had in mind—what they intended—in choosing the words they did.” This leads us to a second type of interpretive theory, originalism, which focuses not on word meaning but on the intentions of those by whose actions the constitution’s various provisions came into existence.

Dharmesh Jivanlal Gurjar v. State of Gujarat

In order to prevent any tampering with court documents, the Gujarat High Court on Wednesday gave the Registrar of the High Court an urgent directive to finish strategically installing CCTV cameras in the Registry.

The Registrar notified Justice Sandeep Bhatt, a lone judge, that someone had engaged in “mischief” with the obvious goal of preventing a case from being listed on the judge’s “admission board.” This is in response to Justice Bhatt’s October 9 declaration that he would issue strict orders in the relevant case.

“Therefore, the petitioner, who is a practicing advocate, is also under the scanner, as he and other advocates of his near circle are known for indulging in such practices, more particularly in the Debts Recovery Tribunal (DRT), of playing with the legal process and also playing mischief by indulging in the unfair practice,” the judge wrote in his ruling.

The Court declared that it is obvious that this is an attempt to obstruct the administration of justice.

“In particular, this activity cannot be allowed in the Registry of the State’s highest court. Such dishonest people ought to be held accountable,” it continued.

The judge did point out that not all areas of the registry could be photographed because CCTVs were not installed correctly. Consequently, it was not possible to gather conclusive evidence in the current case.

The case of Dharmesh Gurjar, who was first accused of requesting a ₹2 lakh bribe while serving as an appointed commissioner for the Debts Recovery Tribunal (DRT) in Ahmedabad, was being heard by the court. In 2020, he submitted a petition to have the charges against him dropped.

Gurjar attempted to withdraw the plea after Justice Bhatt stated on October 9 that the High Court was not inclined to consider it.

On the other hand, the judge had explicitly stated that the withdrawal would come with an order for the Gujarat Bar Council to file a complaint against the attorney for professional misconduct. The case was then listed on Justice Bhatt’s roster on the “admission board,” which deals with new cases. The judge did observe, however, that there had been tampering with the Court’s records because the same matter was later posted as item 200 in the “final hearing board.”

Since the Court typically hears cases up to item number 70 in the daily list, the judge explained in his order from October 26 that the purpose of this mischief was to avoid a hearing.

In the order passed on Wednesday, the Court noted that in 2016, the then Chief Justice of the High Court had granted permission for installing CCTVs strategically in all the judicial departments of the Registry with a view to ensuring the safety of judicial proceedings.

Subsequently, on April 19, 2023, the Registrar was given documents detailing the manner of purchase, supply, installation, commissioning, operation, and maintenance of CCTVs.

“However, for reasons best known to the Registrar (SCMS & ICT), it transpires that no further development has taken place, though the matter has such urgency and seriousness that, in spite of the specific approval given by the Chief Justice for almost eight months, this is a very disturbing state of affairs on the side of the administration of the High Court,” Justice Bhatt stated..

The court further stated that had such cameras been placed throughout the building, the true offender would have been quickly discovered and given the opportunity to be charged. Regretting that despite this incident, no progress has been made to install the cameras, the Court directed,

“This cannot be allowed to continue or tolerated in the future. Consequently, permit the Registrar General to accompany him if the Registrar (Vigilance) and (Judicial) take appropriate action in the matter by working with the Chief Justice’s additional secretary to expedite the installation of CCTVs in every corner of the Registry, strategically covering every table and in operational mode, as well as in the courtroom if necessary.”

This exercise was directed to be completed by January 15, 2024.

Hitachi Astemo Fie Pvt. Ltd. v. Nirajkumar Prabhakarrao Kadu Case.

“Freedom of speech and expression cannot be allowed to be transgressed beyond reasonableness,” the Court said in a case concerning the termination of an employee for putting up FB provocative posts against a company.

The Bombay High Court recently noted that freedom of speech and expression must not be permitted to exceed reasonable bounds or it may have disastrous results.

When handling a case involving the firing of an employee by a car company for posting offensive Facebook comments critical of the company, Justice Milind Jadhav made the observation. On December 12, 2023, the employee’s termination was overturned by a labor court order that was overturned by the judge. The High Court concluded that exercising one’s right to free speech cannot be done in an irrational way.

“Freedom of speech and expression cannot be allowed to be transgressed beyond reasonableness. If that is allowed, it could lead to disastrous consequences. In a given case, one cannot and should not wait for the consequences to occur. Such acts itself are required to be nipped in the bud. Otherwise, it would convey a wrong signal to society at large,” the High Court said.

The employee’s termination had been overturned by a labor court earlier, and Hitachi Astemo Fie, the employer, then appealed the labor court’s decision to the High Court.

Hitachi asserted that during a dispute over a pay settlement, the worker, Kadu, had made two posts from his Facebook account. Hitachi asserted that these posts were disparaging, damaged the company’s brand, and incited staff members to rebel against the management of the business. After Kadu was found guilty of misconduct in 2018 by the company’s inquiry officer (EO), his employment was terminated by an order dated May 2, 2018. On May 31, 2018, Kadu challenged the termination order in Pune’s labor court, which invalidated it. The Labour Court further declared that the investigation into Kadu

Hitachi challenged this order before the High Court in 2023. Kadu opposed the company’s plea, arguing that no untoward or violent incident had taken place, even though there had been provocative comments on the posts. Justice Jadhav opined that it was no defence to say that no untoward incident took place after the provocative posts were uploaded.

“Considering the fact that Hitachi employed thousands of workmen, such posts and the comments thereof, when read by any disgruntled workman, could have led to any disorderly act. When it was admitted that wage settlement talks were going on for several months, a much greater degree of restraint was called upon to be exercised by the office bearers of the recognized union who hold active parleys with the company,” the Court observed.

The Court further found that the Facebook posts were provocative and clearly intended to incite hatred against the company, as evident from comments on the post. The Court added that such acts by office-bearers of a workers’ union could not be pardoned.

“If the same office bearers of the recognized union themselves do not practice restraint and have faith in the statutory provisions of law and commit such an act by posting posts that invoke hatred and are by themselves provocatory, such acts cannot / should not be pardoned. A strong message needs to be sent out against such acts,” Justice Jadhav emphasized.

Therefore, the Court allowed the company’s plea and set aside the labour court’s order. The labour court was directed to complete hearing certain pending issues in the matter within eight months’ time.

Evidence: – Role and Kinds

As per the Indian Evidence Act, 1872 (hereinafter referred to as the Act), Section 3 of the Act ‘evidence’ means and includes
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
(2) all documents including electronic record produced for the inspection of the Court, such documents are called documentary evidence.
Thus, the word evidence, by its very definition means statements/documents which have been produced for the inspection of the Court and on basis whereof a Court decides a lis. Since the Act applies to both civil and criminal cases, the specific context in which evidence and its meaning is considered will depend on the facts, circumstances and kind of case being referred to.
The Hon’ble Supreme Court of India in Sivrajbhan v. Harchandgir (AIR 1954 SC 564), held: “The word evidence in connection with Law, all valid meanings, includes all except agreement which prove disprove any fact or matter whose truthfulness is presented for Judicial Investigation. At this stage it will be proper to keep in mind that where a party and the other party don’t get the opportunity to cross-examine his statements to ascertain the truth then in such a condition this party’s statement is not Evidence.”

Role of Evidence

The object of rules of evidence is to help the courts ascertain the truth and to avoid the confusion in the minds of judges that may result from the admission of evidence in excess. Hales v. Kerr, (1908) 2 KB 601 Thus, the Indian Evidence Act, 1872, was passed with the main object of preventing indiscipline in the admission of evidence by enacting a correct and uniform rule of practice. The law of evidence is the lex fori which governs the courts: whether a writer is competent or not; whether a certain fact requires to be proved by writing or not; whether certain evidence proves a fact or not; that is to be determined by the law of the country where the question arises, where the remedy is sought to be enforced and where the Court sits to enforce it.

The admissibility of evidence in Indian courts is governed by the Indian Evidence Act, 1872. The Act describes the production and impact of evidence, the general rules of evidence, and the relevance of the facts.1. In law, the reliability of the evidence is a matter of caution and judicial analysis. Evidence’s credibility is influenced by its evidentiary value, which in turn influences the evidence’s dependability and legal admissibility.

The decisive element in a case that leads to the accused’s conviction or acquittal in compliance with the law is evidence under the Evidence Act. Evidence is typically presented to support or refute a fact in question; however, each fact has a certain amount of evidentiary value, which directly influences the evidence’s relevance, admissibility, and reliability.

According to the Evidence Act, an admission is the voluntarily acknowledged existence or veracity of a particular fact. They include any oral, written, or electronic statements that suggest something about a relevant fact or a fact under dispute3..

Applicability of the Act to Judicial and Arbitral Proceedings

Under this Act, “Judicial Proceeding” is defined. Justice Spankie, however, held in the R v. Gholam case that any procedure in which evidence is or may be gathered, or in which a verdict, punishment, or final order is rendered based on documented evidence, qualifies as a court proceeding. In order for the adjudicator or magistrate to preside as a judge in a court of law, the Court must fulfill managerial or executive obligations in addition to legal obligations.

The Act expressly states that it has no impact on the arbitral procedure. As a consequence, unless the basic principles of justice and well-established principles of evidence are ignored, the judge is not bound by specialised standards of evidence.

It was thus decided that the Act’s regulations do not apply to proceedings before an arbitrator in the case of Halalal v. State Industrial Court. By bringing a dispute before an arbitrator, one hopes to settle it swiftly and avoid getting mired in the time-consuming and intricate procedures of a traditional trial or in procedural details.

Different Kinds of Evidence

There exist a multitude of methodologies and approaches for the diverse classification of evidence. While the Act defines only two types of evidence—oral and documentary evidence—it permits other kinds of evidence as well, which are discussed in the following sections:

Before exploring the conventional types of evidence, it is necessary to discuss a critical idea about corpus deliciti evidence. It suggests evidence that a crime was initially committed. Put another way, it is a strong piece of evidence that can help to reinforce and support the case. For example, an electrical cord wrapped around a deceased person’s neck is best viewed as corpus deliciti evidence of a homicide. Another sort of evidence that is almost always used is corroborated evidence. Corroborated evidence is additional data that bolsters and verifies previously published data.

For instance, when a suspect is captured close to a burglary scene, his fingerprints are taken. The testimony of a witness who saw the suspects fleeing the house would be a supported by the fingerprints. Additionally, evidence can be both dissociative and associative, meaning it can be used to demonstrate a lack of association between any of the same or to establish links between crimes, crime scenes, victims, and suspects.

The general rules of evidence, the relevance of the facts, and the creation and impact of evidence are all outlined in the Indian Evidence Act of 1872.1. The Indian Evidence Act recognizes the following categories of evidence:

Direct Evidence and Indirect or Circumstantial Evidence

Direct Evidence or Positive Evidence is the testimony of any evidence of a fact actually proved by the witness by his own opinion or senses about the existence or non existence about a fact in issue or relevant fact. It is the evidence about the real point in controversy. Examples: A kills B with a knife. C deposes that he saw A with the murder weapon and stabbing B.
It must be noted that small discrepancies or irrelevant details if left out in the witnesses’ statement shall not corrode the credibility of the witness and will not in any way rejection of the witness statement by the Court.
Circumstantial Evidence is that which tends to establish the fact in issue by proving another fact. In proving other relevant facts, the cause and effect of the fact in issue may be proved that may lead to a conclusion. It is direct evidence indirectly applied. Thus, the facts from which the existence of facts in issue must be proved should be done by way of direct evidence. For example, if it is alleged that A killed B with a knife and C deposes that he saw A walk out of the room where C was killed with the knife, or with a splatter of blood on his clothes, the same would be circumstantial evidence.
Such kind of evidence is to be resorted to only in case no direct evidence is available.
In the case of Sharad B. Sharda v. MH, the SC held that circumstances must lead to guilt of the accused and exclude the innocence of the accused. Further, the cumulative effect of the circumstances must be such that it should establish that the accused and only the accused must have committed the crime.
The Supreme Court in the case of Birdichand Sarda v. State of Maharashtra, laid down the 5 Golden Principles of Circumstantial Evidence:

i. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
ii. The facts so established must be consistent only with the hypothesis of the guilt of the accused, i.e. it should only explain the
hypothesis of the guilt of the accused.
iii. The circumstances should be of a conclusive nature.
iv. They should exclude every possibility of any other hypothesis than the one to be proved.
v. There must be a claim of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all possibility that the act must have been done by the accused.

In the case of Caestanco Fernandez v. Union Territory of Goa, a test was laid down for the acceptance of circumstantial evidence which is as follows: if 2 inferences are possible at the same time, one about the innocence and the other the guilt of the accused, the evidence indicating towards the innocence of the accused shall be used.
When a case squarely rests on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused.
It is a well settled principle now that if at all a case rests primarily or wholly on circumstantial evidence, the links in the chain of events must be proved completely.

Real Evidence/ Material Evidence and Personal Evidence

Real Evidence is that which is brought to the knowledge of the Court by inspection of an object and not by way of a witness or a document produced.
Personal Evidence is that which is afforded by a human agent by voluntary signs.

Original Evidence and Hearsay or Unoriginal Evidence

Original evidence is that which a witness reports himself to have heard or seen by way of his own senses.
Unoriginal or Hearsay Evidence is that in which a witness is merely reporting what he himself saw or heard but through the medium of a third person. Such evidence is not admissible at all.

Primary and Secondary Evidence

Primary evidence is when a document is produced before the court for inspection or proof of an admission of its contents by the parties.
Secondary evidence is inferior, which itself indicates that the existence of a fact is taken from the original source.

Oral and Documentary Evidence

Oral Evidence is that which is brought to the knowledge of the Court by verbal statements of the witness, qualified to speak on point under enquiry. [S. 59 & S. 60]
Documentary evidence is that evidence of a fact brought to the knowledge of the Court by inspection of any document produced. A documents means any matter expressed or described upon any substance by means of letters or figures intended to be used. [S. 61- S. 90]

Judicial Evidence and Non- Judicial Evidence

Judicial Evidence is that which is received by the Court of justice in proof or disproof of facts. Therefore, it is natural evidence modified by certain rules.
Non Judicial Evidence is that which is given in proceedings before an officer not in a judicial capacity but in an administrative capacity [S. 164].

Positive and Negative Evidence
1.Positive Evidence is that which tends to prove the existence of a fact whereas, by negative evidence the non-existence of a fact is proved. Therefore, the latter is not good evidence.

Substantive and Non- Substantive Evidence
Substantive evidence is that evidence on which reliance can be placed. It relates to the rights and duties of the parties. Non substantive evidence on the other hand corroborates to increase the credibility of or contradicts in order to discredit the substantive piece of evidence.

Prima Facie Evidence and Conclusive Evidence

Prima facie evidence is accepted as reliable as it establishes or proves a fact in the absence of any contradictory evidence.
Conclusive evidence is the use of facts involving the application of the rule of law. (S. 41) Decree of a competent court is conclusive evidence.

Scientific Evidence and Digital Evidence

Scientific evidence the use of scientific basis from the point of view of cogency, weight or effect of the evidence. It is based on the fact that science confirms the facts stated.
Digital evidence is the rule of modern concepts or electronic concepts in establishing or proving a part of facts in issue which is relied on by the Courts depending on the facts and circumstances of the case.

Pre-appointed and Casual Evidence

Pre-appointed evidence is also called Pre-Constituted evidence which is procured in anticipation of its use. Hence it may be voluntary or prescribed by law.
Casual evidence is the evidence which is not pre-constituted and depends on the circumstances of the case.

kind of evidence under the act as follows:

Oral Evidence: Those Statements are made by witnesses who testify in a court.
Documentary Evidence: Evidence that is presented in the form of documents.
Primary Evidence: Original documents that are presented in court.
Secondary Evidence: Copies of original documents that are presented in court.
Real Evidence: Physical objects that are presented in court.
Hearsay Evidence: Statements made by a person who is not present in court.
Judicial Evidence: Evidence that is presented in court.
Non-Judicial Evidence: Evidence that is not presented in court.
Direct Evidence: Evidence that directly proves or disproves a fact.
Circumstantial Evidence: Evidence that indirectly proves or disproves a fact.
Exculpatory Evidence: Evidence that tends to prove the innocence of the accused.
Impeaching Evidence: Evidence that is used to discredit a witness.
Opinion Evidence: Evidence that is based on the opinion of an expert.
Character Evidence: Evidence that is used to establish the character of a person.
Analogical Evidence: Evidence that is based on an analogy.
Anecdotal Evidence: Evidence that is based on personal experience.
Demonstrative Evidence: Evidence that is used to demonstrate a fact.
Digital/Electronic Evidence: Evidence that is stored in digital or electronic form.
Forensic Evidence: Evidence that is obtained through scientific methods.
Physical Evidence: Evidence that is tangible and can be seen or touched.
Statistical Evidence: Evidence that is based on statistical data.

Conclusion

Every piece of evidence, regardless of its type—testimonial, ocular, or documentary—is a crucial instrument for successfully establishing the case. Evidence is crucial in all legal proceedings, whether they are civil or criminal, as the absence of it will make it impossible to prove the existence of the facts. Furthermore, the kinds of evidence matter in terms of their admissibility and relevancy standards. Moreover, no watertight spaces exist where types of evidence can be placed. Based on multiple criteria, the evidence has been divided into distinct classes to make studying and comprehending the material easier. Certain evidence-related principles, such as the hearsay evidence principle, are significant and generally applicable unless there is a compelling reason why they might be considered an exception. Furthermore, in keeping with the evolution of legislation, the Evidence Act has expanded its purview to include digital and electronic evidence, which is crucial given the pervasiveness of the digital world in our daily lives.

The Hindu Succession Act, 1956

(30 of 1956)

039

[17th June, 1956];An Act to amend and codify the law relating to intestate succession among Hindus.Be it enacted by Parliament in the Seventh Year of the Republic of India as follows

CHAPTER I

Preliminary1. Short title and extent .(1) This Act may be called The Hindu Succession Act, 1956 .(2) It extends to the whole of India

2. Application of Act.(1) This Act applies

(a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.Explanation .The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.(3) The expression Hindu in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

3. Definitions and interpretations.(1) In this Act, unless the context otherwise requires,

(a) agnateone person is said to be an agnate of another if the two are related by blood or adoption wholly through males;

(b) aliyasantana law means the system of law applicable to persons who, if this Act had not been passed, would have been governed by the Madras Aliyasantana Act, 1949, or by the customary aliyasantana law with respect to the matters for which provision is made in this Act;

(c) cognateone person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males;

(d) the expressions custom and usage signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:Provided that the rule is certain and not unreasonable or opposed to public policy; andProvided further that in the case of a rule applicable only to a family it has not been discontinued by the family;

(e) full blood, half blood and uterine blood

(i) two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife, and by half blood when they are descended from a common ancestor but by different wives;

(ii) two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husband.Explanation .In this clause ancestor includes the father and ancestress the mother;

(f) heir means any person, male or female, who is entitled to succeed to the property of an intestate under this Act;

(g) intestatea person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect;

(h) marumakkattayam law means the system of law applicable to persons

(a) who, if this Act had not been passed, would have been governed by the Madras Marumakkattayam Act, 1932; the Travancore Nayar Act; the Travancore Ezhava Act; the Travancore Nanjinad Vellala Act; the Travancore Kshatriya Act; the Travancore Krishnanvaka Marumakkathayee Act; the Cochin Marumakkattayam Act; or the Cochin Nayar Act, with respect to the matters for which provision is made in this Act; or

(b) who belong to any community, the members of which are largely domiciled in the State of Travancore-Cochin or Madras [as it existed immediately before the 1st November, 1956], and who, if this Act had not been passed, would have been governed with respect to the matters for which the provision is made in this Act by any system of inheritance in which descent is traced through the female line;but does not include the aliyasantana law;

(i) nambudri law means the system of law applicable to persons who, if this Act had not been passed, would have been governed by the Madras Nambudri Act, 1932; the Cochin Nambudri Act, or the Travancore Malayala Brahmin Act with respect to the matters for which provision is made in this Act;

(j) related means related by legitimate kinship:Provided that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another, and any word expressing relationship or denoting a relative shall be construed accordingly.(2) In this Act, unless the context otherwise requires, words importing the masculine gender shall not be taken to include females.

4. Overriding effect of Act.(1) Save as otherwise expressly provided in this Act,

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

CHAPTER II

Intestate Succession

General5. Act not to apply to certain properties.This Act shall not apply to

(i) any property succession to which is regulated by the Indian Succession Act, 1925, by reason of the provisions contained in section 21 of the Special Marriage Act, 1954;

(ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of this Act;

[(iii) the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the Palace Administration Board by reason of the powers conferred by Proclamation (9 of 1124), dated 29th June, 1949, promulgated by the Maharaja of Cochin.][6. Devolution of interest in coparcenary property.(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,(a) by birth become a coparcener in her own right in the same manner as the son;(b) have the same rights in the coparcenary property as she would have had if she had been a son;(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:Provided that nothing contained in this sub-section shall affect or invalidated any disposition of or alienation including any partition or testamentary disposition property which had taken place before the 20th day of December, 2004.(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,(a) the daughter is allotted the same share as is allotted to a son;(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation. For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. For the purposes of clause (a), the expression son, grandson or great-grandson shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation. For the purposes of this section partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by the decree of a Court. ]

7. Devolution of interest in the property of a tarwad, tavazhi, kutumba, kavaru or illom.(1) When a Hindu to whom the marumakkattayam or nambudri law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an interest in the property of a tarwad, tavazhi or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the marumakkattayam or nambudri law.

Explanation .For the purposes of this sub-section, the interest of a Hindu in the property of a tarwad, tavazhi or illom shall be deemed to be the share in the property of the tarwad, tavazhi or illom, as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the tarwad, tavazhi or illom, as the case may be, then living, whether he or she was entitled to claim such partition or not under the marumakkattayam or nambudri law applicable to him or her, and such share shall be deemed to have been allotted to him or her absolutely.(2) When a Hindu, to whom the aliyasantana law would have applied if this Act had not been passed, dies after the commencement of this Act, having at the time of his or her death an undivided interest in the property of a kutumba or kavaru, as the case may be his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the aliyasantana law.

Explanation .For the purposes of this sub-section, the interest of a Hindu in the property of a kutumba or kavaru shall be deemed to be the share in the property of the kutumba or kavaru, as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the kutumba or kavaru, as the case may be, then living, whether he or she was entitled to claim such partition or not under the aliyasantana law, and such share shall be deemed to have been allotted to him or her absolutely.(3) Notwithstanding anything contained in sub-section (1), when a sthanamdar dies after the commencement of this Act, the sthanam property held by him shall devolve upon the members of the family to which the sthanamdar belonged and the heirs of the sthanamdars as if the sthanam property had been divided per capita immediately before the death of the sthanamdar among himself and all the members of his family then living, and the shares falling to the members of his family and the heirs of the sthanamdar shall be held by them as their separate property.

Explanation .For the purposes of this sub-section, the family of a sthanamdar shall include every branch of that family, whether divided or undivided, the male members of which would have been entitled by any custom or usage to succeed to the position of sthanamdar if this Act had not been passed.

8. General rules of succession in the case of males.The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

9. Order of succession among heirs in the Schedule.Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.

10. Distribution of property among heirs in class I of the Schedule.The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:Rule 1.The intestates widow, or if there are more widows than one, all the widows together, shall take one share.Rule 2.The surviving sons and daughters and the mother of the intestate shall each take one share.Rule 3.The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.Rule 4.The distribution of the share referred to in rule 3:

(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widow together) and the surviving sons and daughters get equal portions; and the branch of his pre-deceased sons gets the same portion;

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.

11. Distribution of property among heirs in class II of the Schedule.The property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they share equally.

12. Order of succession among agnates and cognates.The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder:Rule 1.Of two heirs, the one who has fewer or no degrees of ascent is preferred.Rule 2.Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent.Rule 3.Where neither heir is entitled to be preferred to the other under rule 1 or rule 2, they take simultaneously.

13. Computation of degrees.(1) For the purposes of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case may be.(2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.(3) Every generation constitutes a degree either ascending or descending.

14. Property of a female Hindu to be her absolute property.(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.Explanation .In this sub-section, property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property

.15. General rules of succession in the case of female Hindus.(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.(2) Notwithstanding anything contained in sub-section (1),

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

16. Order of succession and manner of distribution among heirs of a female Hindu.The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestates property among those heirs shall take place, according to the following rules, namely:Rule 1.Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.Rule 2.If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestates death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestates death.Rule 3.The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the fathers or the mothers or the husbands as the case may be, and such person had died intestate in respect thereof immediately after the intestates death.

17. Special provisions respecting persons governed by marumakkattayam and aliyasantana laws.The provisions of sections 8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the marumakkattayam law or aliyasantana law if this Act had not been passed as if

(i) for sub-clauses (c) and (d) of section 8, the following had been substituted, namely:

(ii) for clauses (a) to (e) of sub-section (1) of section 15, the following had been substituted, namely:

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the mother;

(b) secondly, upon the father and the husband;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the husband;

(iii) clause (a) of sub-section (2) of section 15 had been omitted;

(iv) section 23 had been omitted.

General provisions relating to succession

18. Full blood preferred to half blood .Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.

19. Mode of succession of two or more heirs.If two or more heirs succeed together to the property of an intestate, they shall take the property,

(a) save as otherwise expressly provided in this Act, per capita and not per stripes; and

(b) as tenants-in-common and not as joint tenants.

20. Right of child in womb.A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.

21. Presumption in cases of simultaneous deaths.Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other, then, for all purposes, affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder.

22. Preferential right to acquire property in certain cases.(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class i of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the Court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.Explanation .In this section, Court means the Court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other Court which the State Government may, by notification in the Official Gazette, specify in this behalf.

23. Special provision respecting dwelling-houses.[Section 23 omitted by the Hindu Succession (Amendment) Act, 2005 (39 of 2005), section 4 (w.e.f.9-9-2005).]

24. Certain widows remarrying may not inherit as widows .[Section 24 omitted by the Hindu Succession (Amendment) Act, 2005 (39 of 2005), section 5 (w.e.f. 9-9-2005).]

25. Murderer disqualified.A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.

26. Converts descendants disqualified.Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens.

27. Succession when heir disqualified.If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate.

28. Disease, defect, etc., not to disqualify.No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any ground whatsoever.

Escheat29. Failure of heirs .If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.

CHAPTER III

Testamentary Succession30. Testamentary succession .[*] Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so [disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.Explanation .The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this [section].[* * * *].

CHAPTER IV

Repeals31. Repeals .[Repealed by the Repealing and Amending Act, 1960 (58 of 1960), Section 2 and Sch. I (w.e.f. 26-12-1960).] ]

The Schedule

(See section 8)

Heirs in Class I and Class II

Class I
Son;daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son [son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son].

Class II

I. Father.

II. (1) Sons daughters son, (2) sons daughters daughter, (3) brother, (4) sister.

III. (1) Daughters sons son, (2) daughters sons daughter, (3) daughters daughters son, (4) daughters daughters daughter.

IV. (1) Brothers son, (2) sisters son, (3) brothers daughter, (4) sisters daughter.

V. Fathers father; fathers mother.

VI. Fathers widow; brothers widow.

VII. Fathers brother; fathers sister.

VIII. Mothers father; mothers mother.

IX. Mothers brother; mothers sister.

Explanation .In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood.

Vishaka v. State of Rajasthan, AIR 1997 SC 3011

This was indeed a landmark case in the history of Human Rights when it comes to the working conditions of women. In this case, the Supreme Court witnessed a PIL against the state of Rajasthan and the Union of India filed by Vishaka and a few other women. In this case, a social worker named Bhanwri Devi was brutally gang-raped while she was doing a noble cause by barring child marriage. However, due to insufficient evidence, the case was dismissed.

This case spread like fire among all the women workers, and sexual harassment in the workplace, which is violative of Fundamental Rights under Articles 14, 15, and 21, was questioned.

The court held that clearly there has been a violation of Articles 14, 15, and 19 (1) of the constitution and also violations of all the international conventions that India was a part of. Through this case, Vishaka guidelines were issued, and the judgment also provided some basic definitions like that of ‘sexual harassment at the workplace along with that, guidelines for protection were provided as well.

Vishakha Case Details

The Indian Supreme Court was tasked with investigating the systemic gender inequality in the country that gives rise to violence against women, including rape and sexual harassment in the workplace. The Supreme Court had to determine during its investigation into the matter whether it was prepared to establish comprehensive rules to address the same. The court took action and established the so-called Visakha Guidelines, a set of rules designed to prevent sexual harassment in the workplace.

The Court determined that sexual harassment violates victims’ fundamental rights as guaranteed by Articles 14, 19, and 21 and causes depravity in those who experience it.

The Court ruled that a set of guidelines is required in order to resolve the case in a meaningful way. In addition to agreeing to the guidelines through the Solicitor General, the Union of India committed to creating a women’s policy that would guarantee the protection of women’s rights and provide a secure environment for them to thrive in a variety of fields.

The Court defined sexual harassment as any physical touch or conduct, any unpleasant taunt or misbehaviour, showing of pornography and asking for any kind of sexual favours.

It was decided that information about sexual harassment at work ought to be gathered, printed, and distributed. Any harassment incident will be handled appropriately, with possible legal action as well as disciplinary measures.
Workplaces should have a strong system in place for the prompt and efficient handling of complaints.
It is recommended that a complaints committee be established, with a female chairperson and a majority female membership.
It is best to involve a third party, such as an NGO, to avoid any pressure from superiors at work.
Furthermore, tangible actions need to be done to educate employees about sexual harassment in the workplace, including what it is and how to report it to the proper parties.

Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Seventeen years after the Vishakha Guidelines were pronounced, the Parliament woke up from its deep slumber and passed the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

The Act is much wider in application than the guidelines but a cursory look tells us that the basic framework has been borrowed from the Vishakha Guidelines.
The “aggrieved women” covers a wide range of women irrespective of age and employment status while “workplace” includes corporate and private places as well as both the organised and unorganised sector.
Specific time limits have been provided for inquiry and redressal of complaints. Penalties including fines up to Rs 50,000 have been prescribed for non-compliance with the provisions of the Act.
The most important feature of the Act is the establishment of the Internal Complaints Committee (ICC) in establishments with 10 or more employees by an order given in writing by the employer.
This Committee shall constitute a presiding officer who should be a senior female employee, an external member to guard against undue influence from the employer or any other higher-ups, and two other members.
A Local Complaints Committee (LCC) is a committee to receive complaints of sexual harassment at the workplace from establishments that do not have an Internal Complaints Committee because they have less than 10 workers, or when the complaint is against the employer himself.
- This Committee is important for women who work in the unorganized sector or for domestic workers.
- The LCC is mandated under Section 6 of the Act.
- The committees have the same powers as that of a civil court under the Civil Procedure Code. However, strict procedural laws shall not be followed during the complaint redressal.
The Committees may take steps towards conciliation (informal settlement between parties) at the request of the woman.
Otherwise, it shall initiate an enquiry into such allegations. If a prima facie case of sexual harassment exists, the Committee shall submit its finding to the police station.
On the completion of the report, it shall be submitted to the employer or the district officer.

Conclusion

The merits and demerits of judicial activism are always debated in legal circles; there are pros and cons to it but the Vishakha judgment enforces the good side of the activism of judges. Before the pronouncement of Vishakha, India was lacking a law on sexual harassment even after five decades of independence and numerous instances of gender discrimination and sexual violence against women. Despite being ignored for a very long time prior to that, the ruling highlighted the evil of sexual harassment. Sexual harassment against women violates their inherent right to dignity and can lead to a lifetime of suffering from a single act of harassment. Without a doubt, the 2013 legislation and the Vishakha Guidelines are positive steps in the right direction, but eliminating the culture of sexual harassment in the workplace will take time and will require, among other things, dispelling the stigma attached to those who are victimized by such egregious behavior.

Woman can be Karta of Hindu Undivided Family

Gupta Manu v. Sharma & Ors. The Delhi High Court recently ruled in this case that a woman’s right to be the Karta (head) of a Hindu Undivided Family (HUF) is unaffected by either the legislature or customary Hindu law. The only thing standing in the way of a woman becoming the Karta in today’s society, according to the division bench of Justices Suresh Kumar Kait and Neena Bansal Krishna, is a family’s unwillingness to embrace social and cultural change.

“Societal perceptions cannot be a reason to deny the rights expressly conferred by the legislature,” the Court underscored.

In the case of DR Gupta and his sons, the court was considering an appeal against a ruling designating a woman as the Karta of a HUF. Following the demise of DR Gupta’s sons, the question of the family’s Karta emerged. Being the eldest of DR Gupta’s grandchildren, Sujata Sharma declared herself to be the HUF’s future Karta. The male members of her family challenged her, and Manu Gupta declared himself the Karta in her place.

The Hindu Succession Act was modified in 2005 to grant Hindu men and women equal inheritance rights, the Court stated in its decision dated December 4. The issue of whether a woman who is recognized as a coparcener can eventually become a Karta and take over the management of the family estate was then discussed.

The Court came to the conclusion that the only requirements for becoming a Karta are age seniority and coparcener status. Although there was no explicit prohibition in the traditional law against women holding managerial positions, it was observed that being the “senior most male” was a necessary corollary, since only male members of the Joint Hindu Family were granted the status of coparcener.

A daughter of a coparcener “shall by birth become a coparcener in her own right in the same manner as a son” and “any reference to a Hindu Mitakshara Coparcener shall be deemed to include a reference to a daughter of a coparcener,” according to Section 6 of the Hindu Succession Act, according to the Court.

In light of this, the Court declared that even though the Preamble of the Act mentions inheritance, all other rights, including the right to be a Karta, would also be conferred as “same” rights. The Court dismissed the claim that a female Karta’s husband would have some indirect influence over the operations of her father’s family’s HUF. It called it a parochial mindset.

“Ergo, a woman who has absolute ownership of a property cannot be denied a right to manage it on the warped reasoning that she may get influenced by her in-laws. Thus, societal apprehension and reluctance can never truncate legislative enactments to do away with patriarchal discrimination,” the bench said. Thus, the Court declared Sujata Sharma as the Karta for the purposes of representing the HUF of DR Gupta & Sons before the Competent Authority. It thus dismissed the appeal.

Relevance of judgments under evidence act

“Relevancy of judgment” refers to the fact that each judgment is grounded in the specific facts of each case. Simplistically put, it asserts that every single case has unique significance. Every case is decided according to its own facts; the decisions made in one case do not always have to be connected to those in another. Even though it stems from the same fact, a civil judgment has no bearing on a criminal prosecution. A civil defamation case’s verdict has no bearing on a criminal prosecution. The later case is unrelated to the earlier ruling. The case facts and the criteria used to render a decision are given more weight.

First and foremost, it’s critical to understand what a 1908 Code of Civil Procedure judgment actually means. A judicial decision that affects a person’s rights, obligations, and liabilities is what Section 2(9) of the Criminal Procedure Code refers to. Every case is decided on its own facts, according to the fundamental tenet of law, meaning that decisions rendered earlier or later are immaterial. The outcome is determined by the particular facts of each case, not by precedent from earlier decisions.

Judgements of the court of justice are regarded as relevant in legal proceedings when they pertain to public matters. A number of sections of the Indian Evidence Act, 1872 address the applicability of justice court rulings. These are a few of the important sections:

Section 40: Previous judgments relevant to bar a second suit or trial
Section 41: Relevancy of certain judgments in probate, etc., jurisdiction
Section 42: Relevancy and effect of judgments, orders, decrees, other than those mentioned in Section 41 of the Indian Evidence Act.
Section 43: Judgment, order, etc., other than those mentioned in Section 40 to 42, when relevant.

Any judgments, orders, or decrees not specifically listed in Sections 40, 41, and 42 are not relevant unless their existence is a fact in dispute or is relevant in accordance with another provision of this Act.

The Indian Evidence Act, 1872, says that a final judgment, order, decree, or ruling of a court exercising probate (relating to will), matrimonial (marriage, divorce), admiralty (war claims), or insolvency jurisdiction is relevant.

This section consists of two parts:

1. It deals with judgement in rem, i.e., a kind of declaration about the status of a person and is effective for the entire world, whether he was a party or not.

2. A judgement in personam is when a judgment is given to the parties (e.g., a tort or a contract action), which binds only the parties and is not relevant in any subsequent case.

The Object of Section 40

The object of Section 40 is to save the time of the court and avoid the trial of similar suits as well; in simple words, it provides that the existence of previous judgment, order, or decree is a relevant fact.

For instance, if ‘x’ and ‘y’ are two parties, ‘x’ sues ‘y’ for fraud and the court has decided the case in favour of ‘y’ but later ‘x’ again filed a suit against ‘y’ for the same case.
So, it can be said that once a judgment is given by a court over a particular subject matter, that court has a right to bar the trial of the case and here Section 40 will apply.

Section 40: Prior rulings applicable to preclude a retrial or lawsuit.
A judgment’s existence will be relevant even in a retrial, according to Section 40 of the Indian Evidence Act, 1872. In this case, res judicata is applicable. It merely indicates that it will be a relevant fact if any judgment forbids the court from considering such a suit or petition.

Concerning the Section
Section 40 refers to judgments, orders, and decrees that have the effect of prohibiting multiple suits in the same case. To establish Lis Pendens or Res Judicata, or the bar on a subsequent suit or trial, this section is crucial. Section 40 restricts itself to the admissibility of judgments and does not deal with the questions of evidence Collector of Gorakhpur vs Palakdhari: 12 A 1 FB.

It is based on two Latin maxims, which are:

Nemo Debet Bis Vexari Pro Una Et Eadem Causa, which means that no one can be vexed more than once for the same offense. It is based on the principle of private justice.
Interest Republicae Sit Finis Latium which means that having an end to litigation is in the best interest of the state. It is based on public policy and aims at the suits not being protracted Commissioner of Central Excise, Nagpur vs Shree Baidya Nath Ayurved Bhavan Ltd, (2009) 12 SCC 419.

The maxim interest was declared by the Apex Court in Indian Council for Enviro-Legal Action vs. UOI (2011) 8 SCC 161. Republicae ut sit finis litium states that the conclusion of litigation following a protracted hierarchy of appeals is in the public interest. Allowing a second appeal could be tantamount to opening a flood gate, resulting in more injustices overall at the expense of rights in society. The dictum guarantees that the idea of:

Private convenience:
which states that a person should not be vexed twice for the same cause.
Public policy:
that it is in the best interests of peace and harmony of a state and its people is followed, and the finality of litigation Nagabhushanammal vs Chandikeswaralingam, 2016 (3) can be ensured.

This section will be applicable where the court has jurisdiction to decide upon the matter and one of the parties to the case points out that the case shouldn’t be heard by the court, because it has already been decided Lakshanchandra v Ram Das, AIR 1929 Cal 374.

Case of Shrinivas Krishnarao Kango vs Narayan Devji Kango[6]

Mr. Siddopant and Mr. Krishnarao were members of a Hindu Undivided Family business that was the subject of the case. A disagreement over family property emerged in the wake of the deaths of Siddopant in 1899, Gundo (Siddopant’s son) in 1901, and Krishnarao in 1897.

When the matter reached trial, the plaintiff argued that the adopted son of Lakshmibai, Gundo’s wife, was a matter that needed to be decided upon by the court before any portion of the property could be distributed. The court held that since a court had previously made a decision on this matter, it was unnecessary for the court to delve further into this particular aspect of the case.

The question arises: what is “res judicata”?
This word may be familiar to many of you. “Judicate” denotes “already decided,” while “Res” denotes “subject matter.” Consequently, it states that a decision has been made. Section 11 of the C.P.C. defines it. For instance: Two parties, “A” and “B,” are suing each other over property-related issues. However, the court dismissed the lawsuit, so “A” filed a new lawsuit against “B.” Therefore, it was stated that the res judicata formula applies and that a court loses jurisdiction once it issues a judgment on a specific matter. The Criminal Procedure Code prohibits a person who has been tried and found guilty from being tried again. Therefore, the judgment that found him guilty will be as such, the verdict that found him guilty will be applicable to any case or legal proceeding where he is accused of committing the same crime. The Criminal Procedure Code prohibits someone who has already been tried and found guilty from being tried again. As such, the verdict that found him guilty will be applicable to any case or legal proceeding where he is accused of committing the same crime.

Section 41- Relevancy of certain judgment in probate, etc., jurisdiction

The Indian Evidence Act, 1872 says that a final judgment, order, decree or ruling of a court exercising probate (relating to will), matrimonial (marriage, divorce), admiralty (war claims) or insolvency jurisdiction is relevant.

This section consists of two parts:

It deals with judgement in rem i.e. a kind of declaration about the status of a person and is effective to the entire world whether he was a party or not.
A judgement in personam is when a judgment is given to the parties (e.g. a tort or a contract action) which binds only the parties and is not relevant in any subsequent case.

Such judgment is conclusive proof. It refers to a presumption of a particular set of facts which cannot be overruled or changed by additional evidence or argument.

State (Delhi Administration) & Anr v. Syed Askari Hadi Ali Augustine (2009)

Shamim Amna Imam was a testatrix in this instance—someone who left a legacy or made a will. The aforementioned properties belonged to her. On 3.5.1998, she signed a will in support of the appellant, Syed Askari Hadi Ali, and on 23.5.1998 she passed away. Regarding the will, Syed Askari Hadi Ali submitted an application. In relation to the property, he also requests a grant of mutation; however, the request is denied for the following reasons:-

The appellant could not produce the original copy of the will.
The property which was in question was under possession.
And the Title Suit which was filed by the Testatrix against the appellant was pending in the civil court.

Following this, there were numerous appeals, and as a result of the absence of evidence that was necessary in this case, the court ultimately declared that, in light of the relevant facts and circumstances, it is not a suitable case for us to exercise our discretionary power or jurisdiction under Article 136 of the Indian Constitution.

Kinds of jurisdiction:

Probate jurisdiction

It has the authority of an orphan’s court, surrogate court, or probate court. It covers the creation of wills, the distribution of a deceased person’s assets, and the oversight of child guardianship.

State of West Bengal v. Goutam Shantilal Shah, May 9, 1996

In this instance, the issue of whether district delegates could consider a request for the grant of probate of a will pertaining to immovable property under section 276 of the Indian Succession Act of 1925 emerged. However, in the end, it was decided that any application for the grant of probate of the will must be decided in compliance with the law.

2. Matrimonial jurisdiction

It uses the authority of nullity suits, et thoro, marriage, and divorce.

Vijaya Venketesh vs. Santhini (2017) In this case, which pertains to section 13 of the Hindu Marriage Act, it was decided that video conferences are not permitted in matrimonial proceedings. Give notice of the review petition under the given conditions.

3. Admiralty jurisdiction

In matters involving ships, the sea, and other navigable waters, it wields legal authority.

Gian Chand vs. Gobind Ram (2000) Admiralty court is the forum for this case. The jurisdiction of the admiralty court was invoked in England against the respondent, who was accused of breaching a contract in London.

4. Insolvency jurisdiction

It uses its authority as a Member State to initiate bankruptcy procedures on whose territory the center of the debtor’s primary interests is located.

T.V. Swaminatha Iyer vs. Krishnaswami Iyer and (1924) The question in this case is whether vakils have a right of audience in the Madras Presidency Town court’s insolvency. T.V. Swaminatha Iyer was the respondent, and G. Krishnaswami Iyer was the appellant. Following much deliberation, it was determined that Vakils was not entitled to an audience in the bankruptcy court.

Section 42- Relevancy and effect of judgments, orders, decrees, other than those mentioned in Section 41 of the Indian Evidence Act

The effect of judgment or order will be relevant, except those which are mentioned in section 42.

Judgements are relevant if they are related to matters of public nature.
But such judgment, order or proclamation is not conclusive proof of which they state.

Illustration: – X sues Y for the murder of his brother i.e. Z. Y alleges the existence of a public right of a licensed gun which he used for his protection against Z. The existence of an order in favour of the defendant. Similarly in a suit by B against A for the murder of C in which A alleged the existence of the same right of way, is relevant but it is not conclusive proof that the right way of existence.

Vishnu Dutt Sharma v. Daya Sapra (2009)

In this instance, on August 10, 1999, the Respondent, Daya Sapra, borrowed rupees 1.5 lakhs from the Appellant, Vishnu Dutt Sharma. Respondent sent a check on October 20, 1999, following the appellant’s reminder; however, the appellant received the check with a notation indicating insufficient funds. After that, he brought a petition against the reply. Although it was previously stated that the case fell under “Res Judicata,” the ultimate ruling determined that this was not the case. Thus, the appeal is granted; however, due to the particular facts, issues, and circumstances of this case, no cost order will be issued.

Section 43- Judgment, order etc, other than those mentioned in Section 40 to 42, when relevant

Judgment, order or decree are irrelevant other than those mentioned in section 40, 41 and 42. In this, the previous judgments are not relevant with concern with the subsequent proceeding.

Let us understand with an illustration. ‘X’ prosecutes ‘Y’ for stealing his horse from him. ‘Y’ is convicted. Afterwards ‘X’ sues to ‘Z’ for the horse which ‘Y’ had sold to ‘Z’ before his conviction. As between ‘X’ and ‘Z’, the judgment which was against ‘Y’ is irrelevant.

In The Duchess of Kingston’s Case, it was decided that the House of Lords, who are her peers, tried and convicted the Dowager Duchess of Kingston, Countess of Bristol, of the bigamy charge.

Acceptability of verdicts in criminal and civil cases

The term “admissibility” refers to a judgment’s ability to be accepted or legitimate, particularly when used as evidence in a legal proceeding. This brings us to some admissibility of judgment in both criminal and civil cases

In civil lawsuits, the parties may rely on the “Res Judicata” principle.

The civil court’s decision would be relevant if all requirements of sections 40 to 43 are met if the criminal and civil proceedings are related to the same cause or reason. However, it cannot be stated that the decision would be conclusive unless section 41 is met.

According to section 300 of the Criminal Procedure Code, if the requirements outlined there are met, an individual who has been found guilty of a crime cannot be reexamined for the same offense.

Emperor Vs. Bhagwandas Tulsidas (1945)

The accused in this case was found to have killed both Dharamsey and Mr. Haji. He claims that the case will fall under the purview of Section 42 of the Indian Evidence Act, which deals with matters of public policy. However, it was decided that the public would not be concerned about such an unusual death. Therefore, it is inappropriate to present certain facts as evidence because they are not relevant under any Indian Evidence Act provision.

The accused in this case was found to have killed both Dharamsey and Mr. Haji. He claims that the case will fall under the purview of Section 42 of the Indian Evidence Act, which deals with matters of public policy. However, it was decided that the public would not be concerned about such an unusual death. Therefore, it is inappropriate to present certain facts as evidence because they are not relevant under any Indian Evidence Act provision.

Section 44- Fraud or collusion in obtaining judgment, or incompetency of court, may be proved.

Section 44 of the Indian Evidence Act states that a prior ruling that has been established to have been the result of fraud, collusion (illegal or covert cooperation), or incompetence of the court is not subject to res judicata.

A lawsuit or other legal action involves a minimum of two parties.

Any party may present any relevant judgment, order, or decree under sections 40, 41, or 42.

The act only stipulates that a judgment’s value may be rendered ineffective in the event that any of the following three conditions are met:

Incompetency of the court
If there is fraud
If there is collusion

Asharfi Lal Vs. Smt. Koili (Dead) by L.Rs. (1995)

The dispute surrounding land reform and the abolition of Zamindari is connected to this case because Raja Ram was Smt. Koili’s brother and Smt. Nanki’s husband. Thus, the appellant, Asharfi Lal, claimed to be the sole heir to Raja Ram and to be entitled to the latter’s agricultural land; however, Smt. Koili refuted Asharfi Lal’s claim to be Raja Ram’s son. Prior to the evidence of record being presented in the consolidation proceedings, the Deputy Director determined that Ashrafi Lal was the sole heir and the son of Raja Ram, overturning the earlier ruling in favor of Smt. Lal.

Conclusion

A decision should only be made based on the facts and arguments made in court. The legal doctrines that should apply in this case must also be determined by the court. It’s also criticized, though, that there’s always space for development. The judges rendered a decision holding that a system created and put into place in one nation need not be applicable in another. After all, none of the systems is perfect. Everyone gains knowledge from their experiences and errors, as Justice Sikri famously observed.

Sun Pharmaceuticals Industries V. Dwd Pharmaceuticals Ltd., (22nd November 2022)

This case emphasizes the clean hands doctrine vis-à-vis trademark law. The plaintiffs claimed that they adopted and coined the trademark “Forzest” in 2003. Subsequently, the defendant had filed an application for the mark “Folzest,” and both parties were operating in the same class of goods and services. The plaintiffs emphasised that since the suit pertained to pharmaceutical goods, the threshold of confusion was low. This resulted in the deceptive similarity test becoming stringent and public interest becoming paramount.

In response to the plaintiff’s contention that their trademark had been infringed, the Defendant asserted that certain material facts were concealed by the plaintiff from the court. The Defendant was a leading manufacturer in the industry, a registered proprietor of the mark “Zest” and had a family of trademarks registered with “Zest” forming a part of them.

The Court held that the Plaintiff must come with clean hands while approaching the Court, putting forth all facts without any concealment. However, it is interesting to note that even though the Court deemed that there was no candid disclosure by the Plaintiff, the case was not dismissed at the threshold. This was primarily due to the fact that it pertained to pharmaceutical goods.

Pharmaceutical goods require the larger public interest to be taken into account and not just the rights of the private litigants. In such cases, even a remote possibility that there would be a likelihood of deception can led to disastrous consequences. Therefor despite not approaching the Court with clean hands, the Plaintiff was entitled to an ad-interim relief on the basis that they were the prior users and the two marks were deceptively similar.

Lok Sabha passes Advocates (Amendment) Bill, 2023

The Advocates (Amendment) Bill, 2023, which amends the Advocates Act of 1961 and repeals the Legal Practitioners Act of 1879, was approved by the Lok Sabha on Monday.

Union Minister of State (independent charge) for Law and Justice Arjun Ram Meghwal introduced the bill in the Rajya Sabha on August 1; the upper house then passed it on August 3. The Central Government’s effort to repeal “all obsolete laws or pre-independence Acts” that have outlived their usefulness includes the Bill.

It proposes to repeal the Legal Practitioners Act of 1879 and regulate the legal profession solely through the Advocates Act of 1961, keeping a clause addressing touts in courts.

“With the exception of the issue pertaining to ‘touts,’ all the aspects addressed in the Legal Practitioners Act, 1879 are already covered under the Advocates Act, 1961,” reads the bill’s statement of purpose and reasons. All of the sections 1, 3, and 36 of the Legal Practitioners Act, 1879 have been repealed, in accordance with clause (a) of sub-section (5) of section 50 of the Advocates Act, 1961.

Month: December 2023

Textualism

Dharmesh Jivanlal Gurjar v. State of Gujarat

Hitachi Astemo Fie Pvt. Ltd. v. Nirajkumar Prabhakarrao Kadu Case.

Evidence: – Role and Kinds

Role of Evidence

Applicability of the Act to Judicial and Arbitral Proceedings

Different Kinds of Evidence

kind of evidence under the act as follows:

Conclusion

The Hindu Succession Act, 1956