Friday, 1 September 2017

On Adverse Possession and Consequent Change of Ownership

Introduction

Adverse possession is a peculiar kind of possession of land where a person not having legal title to the land enters and occupies the land for long period with no continuing permission of the legal owner and the true owner subsequently loses his ownership rights after a legally permissible period of his inaction in recovering the possession from the possessor. The owner might have initially permitted the possessor in entering the land on the basis of a lease or licence.

It is the Section 5 of the Specific Relief Act that provides for recovery of specific property on the basis of the title one holds. Who owns a better title of the property has the power to possess it over the other. The Section 6 of the act makes it possible for a title holder to file a suit for recovery of possession of the property, but dispossession of any property by illegal means is unlawful as it is an offence under Section 145 of Criminal Procedure Code.

In law, possession itself is a prima facie proof of ownership or right on property. Possession gives a rebuttable presumption of ownership, unless the contrary is established.  Since the true owner cannot evict a possessor of property after a long period of non-possession, an actual possessor who sets up a claim for the property exclusively on the basis of his possession for long becomes a legally valid title holder of the property against the interest of the true owner. It is called adverse possession.

Adverse possession explained

Indian law allows the adverse possessor (called the disseisor), who holds no ownership of an immovable property, to get its ownership/title after a prescribed statutory period of limitation. By efflux of time the owner’s legal right to recover the property comes to an end and the possessor becomes eligible for ownership of the title if the possession shows certain characteristics.

The claim of ownership/title based on adverse possession by a possessor stems from uninterrupted, uncontested, hostile and exclusive possession of the property for a prescribed limitation period. In such case, the prescription of period of limitation for recovering possession goes against the rights and interests of true owner. Normally owner’s non-use of land is not a limiting factor but his negligence in taking action when someone else unlawfully asserts his right on it is unacceptable in law. The right of the possessor stems solely from this negligence.

However law does not recognize adverse possession by force or stealth. When a cause of action exists for the owner and no action is taken to recover the possession, the period of limitation comes to an end and the right of the owner to title will get extinguished. Then the possessor gets the prescriptive title by transfer of ownership on the basis of adverse possession. The possessing rights therein get transformed to ownership to the possessory owner.

The Rationale of adverse possession

The rationale for adverse possession rests broadly on the considerations that title to land should not remain unclaimed for so long. The society will benefit from someone making use of the land which the owner leaves idle. Such an occupant needs to be recognized as owner to protect the interest of society.  In other words, law does not support those who sleep over their property rights for long. The title holder who neglects his rights over the land needs no protection after a long passage of time. In such case, the true owner of a property loses his ownership rights owing to inaction on his part to remove a trespasser from the property within the statutory period of limitation. After the lapse of the limitation period for eviction, the true owner ceases to have any right to initiate legal proceedings to repossess his property. Consequently the trespasser acquires title to that property by adverse or hostile possession.

The adverse possession, in one sense, is based on the presumption that the owner has acquiescence to the hostile acts and claims of the person in possession and has abandoned the property to the adverse possessor. In P.T. Munichikkanna Reddy & Ors vs Revamma And Ors  2007, the Supreme Court held, “adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property”.

The period of limitation

The statutory period of limitation for initiating action for repossession of immovable property or any interest therein, stipulated in Section 65 of the Limitation Act, 1963, is 12 years in the case of private property, and 30 years in the case of Government/state/public property. The period starts running from the date since the date the trespasser posses the property in an adverse manner. If the land belongs to the government, it is treated as precarious possession but not adverse. However, the limitation period ceases to operate when there is litigation ongoing between the claimant and the owner over the same property, or if the owner is of unsound mind or a “minor” or a person serving in the armed services.

In order to acquire title over a property by adverse possession, the possession should be open, peaceful, exclusive, uninterrupted, unobstructed and unbroken for more than the statutory period of limitation. The claimant must occupy the property by knowing fully that he does not have any legal right to posses or occupy that property. The trespasser must have intention to acquire title to the property by adverse possession against the true owner.

The adverse possession must be actual possession. It must be evinced by exercising activities such as construction of house, erection of shed or some structure, fencing the property, grazing cattle in the land, farming and harvesting of crop in the land, planting and cutting trees etc. for the entire period of limitation. The claimant must be in sole physical possession of the property against the legal claim, right and title of the true owner or any other claimant. Development of the land, construction of house and erecting boundary walls are examples of “exclusive possession” and the possession must not be a pseudo or token one. After expiry of the limitation period, no cause of action can evict the possessor and he acquires the right, title and interest of the original owner by prescription. He thereby becomes entitled to own the property in the way he likes.

Plea for abolishing adverse possession

The courts in several cases wrestled with the concept of adverse possession with qualifiers like actual, continuous, open, hostile and exclusive. The Supreme Court of India, in two decisions, namely, Hemaji Waghaji v Bhikhabhai Khengarbhai, and State of Haryana v. Mukesh Kumar 2009, sought the need for a fresh look at the law of adverse possession. The court says there is a strong demand for abolition of adverse possession as the law of adverse possession remains irrational, illogical and extremely harsh for the true owner and no certainty is there in the law of adverse possession.  

The law is considered a windfall for dishonest person who had illegally taken possession of the property. It benefits somebody who in a clandestine manner takes possession of the property of the owner in violation of law. The law approves the illegal activities of a fraudulent trespasser who had wrongfully taken possession of the property from the true owner. The law places a premium on dishonesty by legitimizing possession of a trespasser and compelling the owner to lose his right of possession due to his inaction in taking back the possession within the prescribed period.  The court adds that some of the claims based on adverse possession deserve recognition but every claim does not. The law of adverse possession is archaic and “needs a serious relook” in the larger interest of the people.

Court further criticizes the doctrine

In the latest case of State of Haryana v Mukesh Kumar, there is a hard-hitting criticism of the doctrine of adverse possession. The court says, adverse possession allows a trespasser - a person guilty of a tort or a crime in the eye of the law - to gain legal title to land which he has illegally possessed for 12 years. It adds that in logical and moral terms it is baffling to see how an action of illegality for twelve years turns into legal title. This outmoded law asks the judiciary to place its stamp of approval on the doctrine of adverse possession which the ordinary Indian citizen would find reprehensible. The doctrine has troubled a great many legal minds. Therefore there is a need for change. The court says the doctrine is an absurdity and a black mark upon the legitimacy of the justice system.

A fair balance needed

However a total abolition of adverse possession would set off diverse kinds of practical problems to common man who in a bona fide manner possesses property with no title document. Many people in rural areas remain in possession since long by virtue of inheritance, purchase or otherwise without any valid title deed. The shoddy manner in which registration of titles is done and the land record is being maintained has made it difficult to people engaging in land deals to know the true owner of land and the history of its ownership.

Nevertheless there is no justification whatsoever in allowing those who grab the land overnight by force with no bona fides getting title by adverse possession.  The owner of property who may not be physically available to disrupt hostile possession is now penalized. Therefore, there is a need to strike a fair balance between competing considerations in the law of adverse possession.

Additional Reading: Important Case Laws

·         Annasaheb v B.B.Patil  : AIR 1995 SC 895
·         Karnataka Board of Wakf v Govt. of India : (2004)10 SCC 779
·         T. Anjanappa & others v Somalingappa & another : (2006)7 SCC 570
·         P.T. Munichikkanna Reddy & Ors v Revamma And Ors : 2007 (6) SCC 59
·         Hemaji Waghaji Jat v Bhikhabhai Khengarbhai Harijan & Others : (2009) 16 SCC 517 
·         Chatti Konati Rao and other’s v Palle Venkata Subba Rao : (2010) 14 SCC 316
·         State of Haryana v Mukesh Kumar and Others : (2011) 10 SCC 404.



Tuesday, 22 August 2017

Cruelty: A flourishing ground for Divorce

Cruelty is an adequate ground for dissolving a marriage solemnized under a valid law, on a petition filed by either of the party in marriage. But what constitutes cruelty is not spelt out in law. This creates some confusion among the stakeholders of divorce petition and they bring in anything and everything under the sun as an instance of cruelty to get a quick divorce which the law has never envisaged at all. The legislature has consciously left this job of determining what all things come under cruelty, to the concerned court to be determined on assessing all the facts and circumstances of each case. This is primarily meant to avoid auto-limitation and restrictive operation in deciding divorce cases and thereby enable the court to keep its ambit wide open.

Grounds for divorce in Muslim law

The Dissolution of Muslim Marriage Act 1939 is probably the only Indian law that enlists six situations where an act of husband may amount to cruelty in the perspective of the wife. The situations - available only to the wife to invoke - are:

·         the husband assaults her habitually and makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment
·         the husband associates with women of ill-repute or leads an infamous life
·         the husband attempts to force her to lead an immoral life
·         the husband disposes of her property or prevents her from exercising her legal rights over it
·         the husband obstructs her in the observance of her religious profession or practice, and
·         the husband has more than one wives and does not treat her equitably.

Though the law sets apart the reasons exclusively for women they can be used as guiding indications in deciding cases filed by men where similar situation exists.

Cruelty not defined in other laws

The Hindu Marriage Act 1955 originally did not include “cruelty” as a ground for divorce, but for judicial separation alone. However due to the changing mores of the society it has been made a ground for divorce in its amendment in 1976. However in a catena of decisions the courts have enlisted many instances of cruelty which would serve as a guiding force in similar cases. A birds-eye-view of them will make one arrive at a broad understanding of what all things constitute cruelty in the judicial eye. The basic principle upheld in almost all such decisions is that cruelty is nothing but willful infliction of bodily or mental pain. But in a finer classification cruelty can be further elaborated as physical, mental, moral, social and even emotional in nature. The courts through those decisions make out in unequivocal terms that any act of whatsoever nature that makes it impossible for both the spouses to live together without intense hatred and rancor, is nothing but cruelty.

In physical cruelty there shall be visible direct evidence. But in mental or other kinds of cruelty there would be no direct evidence but only intangible or indirect evidence which would be inferred from the instances both parties bring in. However consistent infliction of mental torture may very well come within the contours of cruelty. 

Some instances of cruelty

Let us see some of the instances of behavior which the court declared as cruelty.

In general, cruelty includes willful and unjustifiable conduct - both physical and mental - that may cause danger to life, limb and health. Trivial quarrels, petty quibbles and trifling differences between spouses that would happen in every married life cannot be construed as cruelty or unacceptable behavior. The acts of cruelty complained of should be something more than ordinary ‘wear and tear’ of married life. But continuous ill-treatment, absence of sexual relation or denial of sex for long to the spouse, conscious neglect, total indifference, purposeful humiliation etc may come within the purview of cruelty. It is not correct to consider an isolated instance of misbehavior as cruelty but the facts and circumstances should be taken into consideration in a cumulative manner.

Therefore any isolated incident of cruelty, other than grave and weighty misconduct, against a spouse can’t be a ground for divorce. Any abnormal behaviour unacceptable to the other party and the society at large will constitute cruelty. In order to constitute cruelty there must be harsh or painful conduct of certain amount and for a relatively prolonged period. What is cruelty in one case may not be cruelty in another.

Mere filing of a complaint against the other party to marriage is not cruelty if the complaint is based on concrete facts and justifiable reasons. On the other hand, if the allegations in the complaint are false, or on flimsy ground the leveling of such accusations against the other spouse can be termed as cruelty. Any of the spouses cohabiting with another individual is cruelty. But a wife making baseless allegations about her husband having illicit relationship with other woman unsupported by concrete facts is declared as mental cruelty.  Assaulting the wife in a state of intoxication and creating intolerable nuisance at her workplace would amount to cruelty. Separation of a spouse voluntarily from the company of the other is termed cruelty. Contracting a second marriage during the subsistence of the first one by a spouse will amount to cruelty.  One of the spouses not telling the other about affliction of sexually transmitted disease while continuing sexual relations with the other spouse is cruelty. The wife refusing to maintain sexual relations with the husband amounts to cruelty. Unjustified refusal of intercourse to the other party to the marriage constitutes cruelty but there is considerable difficulty in convincing the court that the refusal is unjustifiable.

Any conduct of a spouse which inflicts mental pain and suffering upon the other and thereby makes it impossible for him/her to live with the other, comes within the ambit of cruelty. An act that a spouse cannot endure in a normal circumstances and standards is deemed to be cruelty. There is no hard and fast dividing line between the conduct which is considered cruel and which is not. It is not easy for anyone to measure it by any absolute and objective standard.

In dealing with cruelty the entire matrimonial relationship between both as a whole must be taken into account. It is a question of fact. The question that whether an act complained of constitutes cruelty is to be determined from the peculiar facts and circumstances of the marital relationship between the spouses. The spouse seeking divorce on the ground of cruelty must prove that the other spouse had persistently treated the one with cruelty.

Some landmark Judgments

Let us see some of the classic judgments which try to delineate cruelty in different perspectives. 

One old high profile case still being referred to in almost every judgment on cruelty - particularly mental cruelty - is V Bhagat v D Bhagat (1994 SCC 337).

Another one is Naveen Kohli v Neelu Kohli (AIR 2004 All 1), the judgment of which describes the impact of physical cruelty after analyzing the facts of the case in other countries too.

 Samar Ghosh v Jaya Ghosh (2007 4 SCC 511) is yet another high profile case, the judgment of which provides a detailed account of what constitutes mental cruelty based on authentic documents and judicial pronouncements from India and other countries even though no uniform standard could be fixed to serve as guidance in such a extensive issue.  

In K Srinivas Rao v D A Deepa ( Civil Appeal No 1794 of 2013 ) the Supreme Court held that mental cruelty can be done without even staying under one roof. The order highlights the need for negotiated settlement in regard to issues of cruelty so as to prevent the marriage from reaching a state of irrevocable breakdown.

The judgment in Suman Sing V Sanjau Singh (2017 4 SCC 85) reiterated that a few isolated incidents of long past, which had been found to be condoned due to compromising behavior of the parties subsequently, cannot be considered cruelty, as per the norms laid down in earlier binding cases.

Conclusion

When there is cruelty, the matrimonial relation will deteriorate into one which makes marital life of the pairs full of agony, distress and mental pain. Therefore the safe course for both parties for a better living is to get a legal divorce. If the marital relation deteriorates into a level which no reasonable person would tolerate, it deserves nothing but ending up in divorce.

However, as Lord Denning says, "If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament.

This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperiled." We, as a people, do not want to derail the institution of marriage by exuberantly defining cruelty as wider as possible.
Tolerance is the foundation of happy marriage. Strategic adjustments and mutual respect of one another are necessary social requirements of a sound marital relation. Whenever such qualities disappear from the spouses due to substantive reasons or flimsy ego clashes, they queue up before the family court citing the other person’s cruelty as a reason for fighting each other and pass though some ignominious proceedings to end up their marriage – an institution indispensable not only for upbringing the children in a healthy social beings but also for maintaining the healthy fabric of the society they live in.  


Even if both the spouses think there is sufficient reason for divorce the right way for them is to negotiate the issues and settle the differences in a civilised manner. Contesting the case with facts and circumstances resembling some fairy tales and unimaginable lies, as is being practiced in our family courts, is to be discouraged. 

NB: The article was initially published on the Lawyers Club India site at http://www.lawyersclubindia.com/articles/Cruelty-A-flourishing-ground-for-Divorce-8383.asp

Friday, 18 August 2017

Law Relating to Succession & Other Certificates

Legal Heirship Certificate, Succession Certificate and Letters of Administration have close relation. They serve a common purpose – they are being used for devolution of some rights on the property of a person died intestate, to their legal descendants.  These certificates, because of their names rather than their contents, create some confusion in the minds of not only ordinary people but some learned lawyers also. The purpose of this write up is to bring in some clarity in regard to the basic nature of those certificates governing inheritance and succession.

The bank accounts, property, personal assets and investments that a person leaves behind when he dies are altogether called ‘estate’. When there is a contest in the nature of devolution of the ‘estate’ to the descendants, it is necessary to obtain legal authority from the court. Normally, Will is the legal instrument by which a person makes a plan for disposition of his property after his death. When the deceased person leaves no Will or his Will cannot be executed due to some reasons, there comes the role of such a certificate for disposing of his ‘estate’.

The legal term ‘inheritance’ refers to the right to succeed to the ‘estate’ as legal descendants whereas the term ‘succession’ refers to the process by which the legal heirs acquire the property of the deceased. ‘Heir’ on the other hand is a descendant who inherits a share of the ‘estate’.

Legal Heirship Certificate

Legal Heirship Certificate is issued by the revenue officers of the executive government - in Kerala it is Tahsildar - based on the enquiry made by his junior official - Village Officer.  Prescribed application form is there to apply for the certificate.

The certificate establishes the relationship of the heirs to the deceased. It is being used for claims relating to pension, gratuity and such other service benefits when the deceased had already not selected a nominee. It is not a conclusive proof for determining the legitimate heirs to any disputed estate. When there is a dispute, the only course left for settling the matter is to file a suit in the civil court and get its decision.

Succession Certificate

A Succession Certificate on the other hand is granted exclusively in respect of “debts and securities” such as Provident Fund, Bank Deposit, Insurance, shares etc to which the deceased was entitled to, as per section 370 read with Section 214 of the Indian Succession Act. The certificate nevertheless declares who the successors of the property are and the ratio in which they would get their shares, unlike many people think. The certificate is issued by the District Court or High Court – both have concurrent jurisdiction to hear and decide a petition. The certificate is issued on miscellaneous proceedings under section 141 of the CPC. The court follows summary trial in proceedings. The contesting parties cannot raise complex contentions in regard to the title of the property. When there are rival contentions, the contentions have to be settled by a suit in the civil court.

Anyone who has prima facie a beneficial interest can apply for the certificate. A petition for certificate should contain the relationship of petitioner with the deceased. The time, date, place of death details should also be mentioned in it and the death certificate and any other documents as the court may require should be attached. The petition should specify each debt and security in detail. The details of all heirs have to be included in the petition. The petition should be a signed and verified one by the plaintiff. It should set forth the following facts:

  •         The time of the death of the deceased
  •         Ordinary residence of the deceased at the time of his death
  •         The family /other near relatives of the deceased and their residence
  •         The absence of any impediment under any law to the grant of the certificate
  •         The debt and securities in respect of which the certificate is applied for


A newspaper notice specifying a time frame - usually one and a half month - within which anyone can file objections also, needs to be issued. It roughly takes around 6 – 8 months to receive a Succession Certificate.

That the question that whether a debt due to the deceased is really due or not is not a matter, which can be decided in an application for the certificate. The right of the applicant to the certificate and the question of the existence or non- existence of the debts/securities in respect of the application are the things the court ascertains. If a Will of the deceased is found to have been in existence during the proceedings the court can dismiss the application for certificate. If the court is satisfied with the facts in the application it will issue a succession certificate specifying the debts and securities. 

The court can ask the applicant of the certificate to furnish security in the form set forth in Schedule VIII of the Indian Succession Act 1925. The certificate empowers the grantee a title to recover the debt due to the deceased and authority to sue for debt recovery. The debtor can pay the debt amount to the certificate holder to get a full discharge. The certificate grants the applicant only the ‘right to collect the debt’ but not the ‘right to the debt’.  A certificate already issued can be revoked when the proceedings were found defective or due to other reasons. Appeal can be filed about an order on the certificate in the high court but no second appeal is provided for. The certificate, in addition, clothes the parties who are paying the debt to the legatees with due protection. The certificate makes its holder equivalent to a trustee. The District court declares only the holder’s ‘right to the certificate’ but not the ‘right to the estate’. 

Probate of the Will and Letters of Administration

The Probate of the Will and Letters of Administration are issued under the Indian Succession Act 1925.  In Kerala, the Indian Succession Rules 1968 issued by the Kerala High Court provides for both. A Probate is not required now in Kerala but in some other parts of the country a Probate is still required.

The above rules set forth the forms and procedures applicable in Kerala for obtaining contentious or non-contentious proceedings to be followed for obtaining probate and letters of administration. Either a legal heir or a creditor can apply for grant of probate or letters of administration. If the application is a contested one it will turn into a civil suit to be proceeded as per the Civil Procedure Code. The application for probate and letters of administration should set forth all the property and credit which the deceased possessed or entitled to, at the time of his death or were likely to come to his hands.

Probate and Letters of Administration are legal instruments to distribute the estate of the deceased to the legitimate descendants. They authorize the administrator to close bank accounts, cash in investments and sell or transfer property. However, which one of these two instruments is appropriate in each case depends on whether an individual is died with or without a Will, and who is applying for it.

Probate means a certificate that declares the genuinely of the Will. It is issued by the civil court. In Kerala state, now a Probate is not required even though the rules explained here refer to that of the State. But in some other parts of the country a Probate of the Will is still required.

A Probate is issued only to the Executor named in the Will or the legatee. When making a Will, one should appoint its Executor. This should be someone the author of the Will reposed trust, and who has the capability of managing a potentially complex process of executing the Will that may take up to one year to complete. The Executor has the legal power to execute the Will after the author’s death, and can transfer the assets to the beneficiaries named in the Will.  Some financial institutions prefer the Executor to obtain a Probate from the appropriate Court before releasing the funds. The Probate is legal confirmation from the Court that the Will is valid. Once the Probate is issued, it means that the Will has been officially registered and the Executor named in the Will is the one with the authority to deal with the estate.

The Letters of Administration is an authority issued by a competent court to a right person to administer the distribution of the estate belonged to the deceased in the right proportion to the rightful claimant.  It is issued when the Will of the deceased has no executors, no action is taken by the executor or the death of the executor occurred before administering the will. When it is necessary to have the letters of administration a Succession Certificate cannot be issued in lieu of it. 

The Letters of Administration is similar to Probate, but is issued to the next of kin of the deceased. If the deceased has not made a Will and thereby not appointed a specific person as the Executor of his estate, his family would have to apply to the court for Letters of Administration to confirm their entitlement to manage the estate. If the family members cannot agree which of them would be the best person to deal with the estate and there is dispute, it is necessary for the involvement of the competent civil court to settle it in a civil suit. The Schedule VII of Indian Succession Act, 1925, contains the form for grant of letters of administration. The Rules mentioned above carry the prescribed application form. An application can be filed after 14 days of death. If no beneficiary applies for the certificate, the court can grant it to the creditor of the deceased.

Letters of Administration might also be issued where there is a valid Will, but the Executor named in the Will is not applying for a Probate. This could be because the person does not want to act as the executor, or is no longer capable of doing so, or perhaps he might have already died.  In such a case, it is common for one of the main beneficiaries in the Will to apply for letters of administration instead. To avoid such a situation, one can include a substitute executor in the Will, who can step in when the main executor is incapable of managing the estate. The court normally levies around 3% of value of asset as fee. When the certificate is issued the grantee has the authority to distribute assets as per the concerned succession law. The grantee will also get the title to recover the debt due by deceased and any payment of debt made to grantee will be a legally valid discharge of debt.

Conclusion

Intestate succession is a quite confusing issue in Kerala. The reason is that there have been different sets of laws for three erstwhile areas – Travancore, Cochin and Malabar areas – subsumed into the state and different sets of laws for different religious sects – Hindu, Christian and Muslim - in the state with so many acts and amendments, some of which become obsolete but some others still remain in force. The Hindus are governed by Hindu Succession Act 1956, the Christians by Indian Succession Act 1925 and the Muslims by religious laws such as Hanafi (Sunni) and Shia systems of inheritance based on Quoran.


The certificates regarding debts, liabilities and securities of the deceased get special importance in inheritance and succession to the descendents because the estate of the deceased that needs to be devolved is arrived at only after discharging  his debts, liabilities and other expenses including funeral expenses. 

NB : The article originally appeared on Lawyers Club India site at http://www.lawyersclubindia.com/articles/Law-Relating-to-Succession-Other-Certificates-8368.asp

Thursday, 3 August 2017

Restraining the Arrest of the Accused in 498A Cases

Enough laws exist in India to protect women from domestic, matrimonial and sexual violence. They, according to women activists, are good only in paper. On one hand the women continue to suffer under violence with no much hope for the victims to have easy access to justice despite having those laws on our statute book. On the other, some of these provisions are largely being misused by educated and powerful sections of disgruntled women as a sharp weapon, rather than a shield, to harass their innocent husbands and their relatives. Even bed-ridden relatives and those living abroad were put under arrest and detention in a quite number of cases. The Section 498A of Indian Penal Code (IPC) is one such provision, now under limelight for unleashing what is called legal terrorism.

The Section 498A, when inserted into the Code on 25 December 1983, had a laudable purpose to serve – to prevent the husband of a woman or his relatives subjecting the women to cruelty on the matter of dowry. Cruelty under this provision means far more than mere harassment, but it includes every kind of willful conduct causing grave mental / physical injury to her health / life, or putting her to harassment for unlawful demand for money / property or driving her to commit suicide. The provision is intended to check outrageous demands by greedy husbands and their relatives driving women to any kind of cruelty.

Somehow the provision, which has not been serving much useful purpose as per the version of activists, is now in the headlines because of its sheer misuse by a section of over-smart women. They raise exaggerated account of allegations of cruelty with no much substantive evidence, as an easy short cut to bring them to forced settlement of some other family disputes. Therefore considering the continuing harassment of innocent husbands and their family members over the years, the Supreme Court (SC) in Rajesh Sharma V State of Allahabad case delivered on 29th July 2017 comes out openly against the misuse of the provision and harassment of such innocent ones based on false complaints. The court issued a slew of provisional directions to deal with the misuse.

The court directed that immediate arrest of the person accused of charge under the section 498A should not be made in a blind manner. It proposes to set up Family Welfare Committees (FWCs) by the District Legal Services Authority (DLSA) consisting of 3 members. The Committee has to look into every complaint under this section and submit a report to the magistrate/ police as the case may be, to aid them in taking a decision on whether to arrest the accused or not. The court incorporated the above said non-governmental committee into the scene as a means to preventing the gross misuse of the provision. Arrest will have to be made only after considering the report by the police or magistrate. If any foul play by husband/relatives is clearly visible in the report, the police will have to arrest the accused without any delay.

The probe into the complaint under this provision is to be done only by a specifically designated investigating officer of the area. The apex court, in addition, proposes for speedy disposal of bail plea in such cases with one days notice to the public prosecutor / complainant and directs the court below to carefully weigh the facts of the case while disposing it. The SC decries the practice of impounding of passports or issuing Red Corner Notice to those living abroad and bringing all family members to the court in complaints under the section, except in cases involving tangible physical injuries.

Earlier in Sushil Kumar Sharma v. Union of India case in 2005, the SC observed that complaints under section 498A were being filed on personal vendetta and a new legal terrorism can be unleashed by misusing the provision. The court also suggested that the legislature should explore how the frivolous complainants can be dealt with. The court in its verdict warned that if cry of "wolf" is made too often as a prank, assistance and protection may not be available when the actual "wolf" appears.

Similarly in 2013 in Lalita Kumari case, the SC directed that a preliminary enquiry must be conducted so as to ascertain whether the First Information Statement reached at the police station reveals a cognizable case in matrimonial or family disputes, before filing an FIR.  This must be done within a period not exceeding seven days.

Again on 2nd July 2014 in Arnesh Kumar V State of Bihar & another case, the SC had issued a checklist for the police to consult before making any arrest under Section 498A. The court, in addition, asked the law ministry to consider amending the law. The verdict instructed all the State Governments not to make immediate arrest when a case under section 498A comes up and arrests must be made only when there is overt and covert action of violence amounting to ‘cruelty’ as defined under the section.

In the present Rajesh Sharma case, the Court acknowledges the judicial recognition of the misuse of the 498A cases in a slew of verdicts issued earlier and highlights the need to prevent such misuse. The court provides some statistics too in support of its reasoning. It states that in 2012 nearly two lakh people were arrested on account of 498A and a quarter of them were women. The percentage of charge sheet filing for 2012 was 93.6 whereas the conviction was at a low rate of 14.4 percent.

The order reaffirms that arrests were made as part of frivolous complaints and reminds that arrest and judicial remand are not the answers to matrimonial disputes. Since the judiciary has the duty to punish the guilty and protect the innocents, arrest of the innocent husband and his family members cannot be justified if the case is a false one.

Even though the Section 498A gets attracted only when the wife is subjected to grave injury or a situation dangerous to her life, the police and courts do pay little attention to this fact. Many of the complaints filed under their section have been done on the spur of a moment without paying much attention to the later consequences. An uncalled for arrest and an insensitive investigation may perpetually spoil any chance for settlement of the family dispute and may end up in destruction of the matrimonial relation.

In the verdict, the court says it is not the duty of the court to legislate but the court does just the opposite. It sets up the FWC, which in normal case be not well equipped to validate the scope of the word ‘cruelty’ under the section 498A, as an intermediate layer between the victim and criminal justice system, to make a report to validate the ingredients of the complaint.  The court however suggests that the women’s cell of the police should have a well balanced and well equipped team of officers with the abilities of persuasion, patience and forbearance.

The new verdict has brought nothing substantial compared to the earlier ones it refers to. The key difference it offers is in the procedural part. The role of women’s Cell is replaced with FWCs in recommending arrest after due consideration of the facts obtained from the parties of the complaint to be called upon to give details. The possibility of husband harass a women with cruelty and narrates before the committee a vivid believable story resembling a fairly tale that the women filed a false complaint misusing the law still exists. There is possibility for the other way round also. The FWC consisting of para-legal volunteer, retired persons or activists need not be better placed in sifting the truth from the two narratives. No doubt, no husband will suo moto accept a dowry harassment charge however true it is.

It seems it would be far better if we could do something to sensitise and train the police and judiciary on how to deal with false cases rather than incorporating new committees with possibly ill-equipped non-governmental members in the delicate issue of putting the accused under arrest. Setting up of the FWC cannot be fair substitute for faultless women friendly police investigation which should be evolved in due course by perpetually sensitizing and training the officers. If we cannot make qualitative changes in the police functioning and scrap its unethical and unlawful actions, we are unfit for a regime of rule of law. Improving our policing is the sine qua non for preventing malafide arrests and reducing crimes in our society.

The problem of Section 498A is that it can neither prevent nor reduce anti dowry harassments substantially. But it unnecessarily brings in many innocent people to the scenario of criminal prosecution. The right solution in this issue is to make the legal provision well balanced by including punishment for those who file false cases along with stern action on the wrong doers. The provision will serve its right purpose only when it must be able both to protect women from unjustifiable harassment and to keep the innocent relatives away from undue prosecution - which is more painful than the punishment itself, in Indian scenario.

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NB : This article was originally published by Lawyers Club of India website at
http://www.lawyersclubindia.com/articles/Restraining-the-Arrest-of-the-Accused-in-498A-Cases-8334.asp 

Saturday, 24 June 2017

No Disrespect in Addressing Chief Justice of India as ‘Mr Chief Justice’

Addressing a judge in the court as "my lord", "your lordship" or "your honour" has been a matter of divided opinion many a time, not only in the Bar or Bench, but also in the Supreme Court (SC) too. However, the issue remains as such for long as it is, with absolutely no change.  

During the hearing of a Public Interest Litigation (PIL) Petition filed in 2013 by a 75 year old advocate Shiv Sagar Tiwari stating that addressing the judge as "my lord or your lordship" in courts was a relic of colonial era and a sign of slavery and pleading that the practice should be banned, the SC bench consisting of Justices H L Dattu and S A Bobde has made it clear that they do not insist on such an exclusive mode of addressing and what is required is nothing but a respectable way of addressing the Judge.

The court clarified it in unequivocal terms that one can address a judge ‘Sir’, ‘your honour’, ‘your lordship’ or ‘my lord’ as the Bar prefers to, as they are some of the appropriate terms that express due respect.  The court however declined to ban the use of those terms and issue a direction to the courts not to address the judges in such a traditional manner as pleaded for. The Bench thereon placed the contentious issue before the Bar itself stating that it is for the Bar to choose the appropriate term such as ‘Sir’, ‘Your Lordship’ or ‘Your Honour’ to address the judge.

In the year 2006, the Bar Council of India passed a resolution that nobody would address the court in India as 'my lord' and 'your lordship'. In fact the resolution was an exercise in excess of BCI’s power. The resolution did not evoke any response and the advocates continued to address judges as in the past partly out of entrenched habit and partly out of fear of falling in disfavour with the judges. In 2006, Justice Chandru of Madras High Court asked lawyers to not address him 'my lord', quoting the 2006 Bar Council resolution.

However on 12th March 1973, a full court of the Supreme Court, after considering remarks from almost all the Chief Justices of the High Court on the mode of addressing the court, held that the Chief Justice of the SC may be addressed by the Bar as ‘Mr Justice’ or ‘Mr Chief Justice’ as the case may be and the form of addressing the Court would be ‘this Honourable Court’. ( Please see 2014 KLT Journal 50 : it carries a copy of the letter dated 19th April 1973 of the then Chief Justice of India addressed to the then Chief Justices of Kerala High Court on this issue) It was also agreed that where in the course of arguments it becomes difficult to address a judge as ‘Mr Justice’, the presiding judge may be address just as ‘Sir’.  The court then decided to introduce the new mode of address from 1st May 1973 in consultation with the Bar Associations. Similar decisions were taken in relation to the Subordinate Courts too. However the advocates continue to address the judges in the same way they have been addressing them since the beginning of the court system in India.

The Bench is ready to change but the Bar is not. The Bar has to set a new standard for legal interaction between the Bench and the Bar. The ball is now in the Bar’s court. It is the duty of the Bar to take the matter forward if it wants to end this inherited colonial practice and start a new mode of addressing which goes well with our democratic tradition in our court rooms.