1. The enactment of Real Estate (Regulation and Development) Act, 2016 brought a sea change in the manner the real estate sector was being regulated. It brought along with it a hope in the eyes of the allottees to fulfil their dreams to get their abode for which they were waiting for long. Though it remains a fact that the manner in which the act has been implemented, it is disputable as to whether the Act has been able to achieve the object and to what extent it has been able to rectify the mischief for curing which it was enacted. One of the aspects which has remained subject matter of discussion, debate and dispute especially amongst the builders as to whether they are exempted from the clutches of requirement of registration under the Act and whether their projects were ongoing on the date when the Act came into force. Since the Act does not provide definition of “ongoing project” therefore, there remains confusion as to whether such projects for which licences were granted but no further implementation has been made are also covered and this prevailing confusion has often been a subject matter of dispute because in recent past it has been seen that the authorities has burdened the builders with penalties and costs for late registration of the project after the commencement of the Act. The instant article aims to clarify the air of confusion around the interpretation and scope of the term “ongoing project”. The terms “ongoing project” is being discussed with reference to the Haryana real Estate (Regulation and Development) Rules, 2017.

2. In order to appreciate as to how this concept of “ongoing project” evolved, it is necessary to first dive into the legislative history and the object of the Act of 2016. A perusal of the statement of objects and reasons of the act shows that the act has been enacted to establish the real estate regulatory authority for regulation and promotion of the real estate sector and to ensure sale of plot apartment or building as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector. The idea of the legislation revolves around effective consumer protection, uniformity and standardization of business practices and transactions in the real estate sector in order to ensure greater accountability towards consumers to overcome frauds and delays and also the higher transaction costs. At the same time, it also intended to balance the interests of consumers and promoters by imposing certain duties and responsibilities on both.

3. There could not have been an effective way than to introduce the concept of “registration of real estate project” for imparting transparency in the real estate sector and ensuring its effective regulation. Accordingly, under chapter II of the Act of 2016 registration of real estate projects was made mandatory and to make the statute apply with rigours, sub section (1) of Section 3 provided that without registering the real estate project with a real estate regulatory authority established under the act, no promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner a plot, apartment or building, as the case may be in any real estate project. While making registration of “real estate project” mandatory under sub section (1) of section 3, the legislature by virtue of proviso to section 3(1) mandated that such projects which are “ongoing” on date of commencement of the Act and more specifically the projects to which the completion certificate has not been issued, shall have to make an application to the authority for registration of the project within 3 months from the date of commencement of the Act of 2016. Section 3 of the Act has been reproduced herein under for ready reference: –

`….3. Prior registration of real estate project with Real Estate Regulatory Authority –

(1) No promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority established under this Act.

Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act.

Provided further that if the Authority thinks necessary, in the interest of allottees, for projects which are developed beyond the planning area but with the requisite permission of the local authority, it may, by order, direct the promoter of such project to register with the Authority, and the provisions of this Act or the rules and regulations made thereunder, shall apply to such projects form that stage of registration.

(2) Notwithstanding anything contained in sub-section (1), no registration of the real estate project shall be required –

(a) where the area of land proposed to be developed does not exceed five hundred square meters or the number of apartments proposed to be developed does not exceed eight inclusive of an phases;

Provided that if the appropriate Government considers it necessary, it may, reduce the threshold below five hundred square meters or eight apartments, as the case may be inclusive of all phases, for exemption from registration under this Act.

(b) where the promoter has received completion certificate for a real estate project prior to commencement of this Act.

(c) for the purpose of renovation or repair or re-development which does not involve marketing, advertising selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project.

4. From perusal of the aforesaid provision and the statement of object and reasons of the Act, it manifests that the legislative intent is to make an Act applicable not only to the projects which were yet to commence after the Act became operational but also to bring under its fold “ongoing” projects and to protect from its inception the inter se rights of the stage holders, including allottees/home buyers, promoters and real estate agents while imposing certain duties and responsibilities on each of them. Therefore, it becomes equally important to give such a meaning to the “ongoing” project, which would take forward the legislative intent.

5. It is worthwhile to refer to the legal principles settled by the Apex Court for interpreting the definition clause so as to understand the true import of the term. The most popular way of interpreting any clause or for that matter a definition clause is held to be the “contextual interpretation”. Interpretation must depend upon the text and the context. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. If the statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than the statute is looked at without glasses provided by the context. The requirement is to look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire act. No part of a statute or word of a statute can be construed in isolation. (as observed in State of Maharashtra v. Reliance Industries Ltd., (2017) 10 SCC 713).

6. For understanding scheme of the Act of 2016 in order to ascertain the scope and meaning of “ongoing projects”, it is relevant to refer to the definitions of “completion certificate”, “development”, “real estate project”, “sanctioned plan” and section 4 of the Act of 2016 read with Rule 3 and 4 of Rules of 2017. This would further help us to understand as to the “regulatory function” of the authority which the legislature had sought to achieve with enactment of Act of 2016. At first reference is made to the definition of real estate project as provided in section 2 (zn) of Act of 2016, same is as follows:-

(zn) “real estate project” means the development of a building or a building consisting of apartments, or converting an existing building or a part thereof into apartments, or the development of land into plots or apartments, as the case may be, for the purpose of selling all or some of the said apartments, or plots or building, as the case may be, and includes the common areas, the development works, all improvements and structures thereon, and all easement, rights and appurtenances belonging thereto.

7. A real estate project is defined to mean “development” of building or building consisting of apartments or conversion of existing buildings into apartments or development of land into plots for the purpose of selling including common areas, development works, easement rights etc. The word “development” as used in the aforesaid definition is defined in section 2(s) to mean, `carrying out the development of immovable property, engineering or other operations in, on, over or under the land or the making of any material change in any immovable property or land and includes re-development.’ As a sequel of above, the word “development” used in relation to “real estate project” connotes that “real estate project” involves the process of making “material change in any immovable property/land” in the form of apartments, plots or buildings etc., for the purpose of selling. Thus, the concept of development i.e., making change in land/immovable property is very much ingrained as far as phrase “real estate project” as used in the Act of 2016 is concerned. It would thus, be no gainsaying that definition of real estate project itself takes care of “ongoing projects” i.e., including within its ambit the projects which are at any stage of “development” and “not yet completed” and no completion certificate has yet been issued.

8. To further understand the relevance of the definition of “real estate project“, reference is made to the sub section (2) of section 3 which grants exemption to certain real estate project from the requirement of registration which includes such projects wherein the promoter has received a “completion certificate” prior to the commencement of the Act. The “completion certificate” is defined in section 2(q) of the Act of 2016 to mean, “completion certificate, or such other certificate, by whatever name called, issued by the competent authority certifying that the real estate project has been developed according to the sanctioned plan, layout plan and specification as approved by the competent authority under the local laws.” Thus, any project which is short of completion certificate i.e., not yet developed in accordance with the sanctioned plan and is in the “development” stage can be called as “ongoing” within the scope of Act of 2016.

9. The words “sanctioned plan” as also used in definition of “completion certificate” is defined in the Act in section 2(zq), as per which “sanctioned plan means the site plan, building plan, service plan, parking and circulation plan, landscape plan, layout plan, zoning plan and such other plan and includes structural designs, if applicable, permissions such as environment permission and such other permissions, which are approved by the competent authority prior to start of a real estate project“. The legislature has specifically used the words “prior to start of a real estate project” while defining the meaning of “sanctioned plan“. The words “prior to start” assumes all the more significance because as seen from the definition of “real estate project” it connotes “development” i.e., process of making material change in the immovable property or land for converting into apartments, buildings, plots etc., and the stage of sanctioned plan which includes site plan, building plan, service plan, circulation plan etc., all precedes the “real estate project“. The legislature by providing that stage of getting approvals is “prior to start of real estate project” has excluded it from the concept of “development” as ingrained in section 2(s) and 2(zn) which defines “real estate project“. Therefore, in the considered opinion of undersigned, a project cannot be called “real estate project” unless and until it has been conceptualized, for which building plans, zoning plans, layout plans etc. are the basics. This stage necessarily precedes the development of a “real estate project” i.e., development of land into buildings/apartments/flats/plots etc.

10. Further reference is made to section 4 of the Act which provides for the “application for registration of real estate projects“. As per section 4(1) of Act of 2016 every promoter is bound to make an application to the Authority for registration of “real estate project“. The power to prescribe the manner and form along with fees, is bestowed on the State Government, however, at same time sub section (2) of section 4 makes it mandatory for the promoter to enclose certain documents which includes, an authenticated copy of the approvals and commencement certificate from the competent authority obtained in accordance with the laws as may be applicable for the real estate project, sanctioned plan, layout plan and specifications of the proposed project or the phase thereof, and the whole project as sanctioned by the competent authority, plan of development works, number of apartments. Section 4 in its entirety is reproduced herein below for the ready reference:-

4. Application for registration of real estate projects –

(1) Every promoter shall make an application to the Authority for registration of the real estate project in such form, manner, within such time and accompanied by such fee as may be (prescribed)

(2) The prompter shall enclose the following documents along with the application referred to in sub-section (1), namely –

(a) a brief details of his enterprise including its name, registered address, type of enterprise (proprietorship), societies, partnership, companies, competent authority), and the particulars of registration, and the names and photographs of the promoter;

(b) a brief detail of the projects launched by him, in the past give years, whether already completed or being developed, as the case may be, including the current status of the said projects, any delay in its completion, details of cases pending, details of type of land and payments pending;

(c) an authenticated copy of the approvals and commencement certificate from the competent authority obtained in accordance with the laws as may be applicable for the real estate project mentioned in the application, and where the project is proposed to be developed in phases, an authenticated copy of the approvals and commencement certificate from the competent authority for each of such phases;

(d) the sanctioned plan, layout plan and specifications of the proposed project or the phase thereof, and the whole project as sanctioned by the competent authority;

(e) the plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof including firefighting facilities, drinking water facilities, emergency evacuation services, use of renewable energy.

(f) the location details of the project, with clear demarcation of land dedicated for the project along with its boundaries including the latitude and longitude of the end points of the project;

(g) proforma of the allotment letter, agreement for sale, and the conveyance deed proposed to be signed with the allottees;

(h) the number, type and the carpet area of apartments for sale in the project along with the area of the exclusive balcony or verandah areas and the exclusive open terrace areas appurtenant with the apartment, if any;

(i) the number and area of garage for sale in the project;

(j) the names and addresses of his real estate agents, if any, for the proposed project;

(k) the names and addresses of the contractions, architect, structural engineer, if any and other persons concerned with the development of the proposed project;

(l) a declaration, supported by an affidavit, which shall be signed by the promoter or any person authorized by the promoter, stating –

(A) that he has a legal title to the land now which the development is proposed along with legally valid documents with authentication of such title, if such land is owned by another person;

(B) that the land is free from all encumbrances, or as the case may be details of the encumbrances on such land including any rights, title, interest or name of any party in or over such land along with details;

(C) the time period within which he undertakes to complete the project or phase thereof, as the case may be;

(D) that seventy per cent of the amounts realized for the real estate project form the allottees, from time to time, shall be deposited in a separate account to be maintained in a scheduled bank to cover the cost of of construction and the land cost and shall be used only for that purpose.

Provided that the promoter shall withdrawn the amounts from the separate account, to cover the cost of the project, in proportion to the percentage of completion of the project.

Provided further that the amounts from the separate account shall be withdrawn by the promoter after it is certified by an engineer, an architect and a chartered accountant in practice that the withdrawal is in proportion to the percentage of completion of the project.

Provided also that the promoter shall get his accounts audited within six months after the end of every financial year by a chartered accountant in practice, and shall produce a statement of accounts duly certified and signed by such chartered accountant and it shall be verified during the audit that the amounts collected for a particular project have been utilized for that project and the withdrawal has been in compliance with the proportion to the percentage of completion of the project.

(E) that he shall take all the pending approvals on time, from the competent authorities.

(F) that he has furnished such other documents, as may be prescribed by the rules or regulations made under this Act; and

(m) such other information and documents as may be prescribed.

(3) The authority shall operationalise a web based online system for submitting applications for registration of project within a period of one year form the date of its establishment.

11. Once, Section 4 of Act of 2016 stipulates that the relevant documents which shall mandatorily be enclosed with the application for registration includes sanctioned plan, layout plan, number of apartments etc., therefore, in no sense can the stage of getting approvals/sanctioning of building plans/layout plans etc, be included within the ambit of definition of “development” used in context of “real estate project”. These aspects precede the initiation of real estate project because it connotes the conceptualization of the idea of project, i.e., how the project would be planned, how many towers are to be constructed, how many plots are to be carved out, how many flats are planned, how the development works are to be executed, what size of plots/flats are to be planned. Unless and until the basic preparation in the aforesaid manner is done, no project can be developed. If the intention of legislature would have been to mandate the registration even before the plans are sanctioned and necessary approvals as enumerated in section 4 are taken, the Act would have been couched in such manner but, perusal of relevant provisions, as discussed above, goes on to show that the act presupposes that the promoter will take all necessary permissions first, will get the plans sanctioned and then would apply for registration. Rightly so, because if these details are not available, what would the authority regulate? A project which is not even existing on the paper. This could never be the intention of legislature. As the saying goes, “necessity is mother of invention”, accordingly, the need to have a regulatory authority for real estate sector was felt, despite there were state enactments giving different authorities power to ensure compliance of sanctions/permissions granted by them to developer/promoter. Due to scattered power amongst numerous departments, effective regulation was almost negligible which resulted into the miseries of allottees as developers flouted the conditions often and ultimately, we saw a downfall in real estate sector. Thus, to promote the blooming industry, it was necessary to have a watchdog, ensuring that real estate sector promoted, regulated by protecting interest of consumers. Therefore, the Act of 2016 provided for establishment of an authority performing twin functions i.e., of regulation of real estate sector and of adjudication of disputes.

12. For regulation and promotion of real estate sector, “registration of real estate project” with the authority has been given utmost importance, so much so that section 3 of Act of 2016, as also discussed above, created a bar on the promoter to advertise, market, book, sell or offer for sale or invite persons to purchase in any manner any plot, apartment of building, in a real estate project or part of it, without getting the project registered with the authority. With this, the Act ensured not only the protection of interest of allottees, but also ensured “effective regulation” of real estate sector by intending to root out the possibility of exploitation of allottees and ensuring that the promoter is not flouting the permissions and the promises made to the allottees.

13. A very pertinent question arises at this stage is how “registration” is one of the mechanisms to ensure “regulation of real estate sector”. The answer lies in section 4 of the Act of 2016 as per which the promoter is to furnish details of each and every aspect of the project i.e., detail of promoter, earlier project launched and their status, copies of approvals, sanctioned plan, layout plan, specification of project, plan of development works, location details of project, proforma of allotment letter, number, type and carpet area of apartment, name and address of real estate agents and declaration as regards the title of land, time period within which the project would be completed, details of bank account. It is only after these details are available with the authority, can the regulation function be performed, because in their absence, the authority would not be in a position to even ascertain as to whether the promoter is compliant with all the approvals, how many prospective allottees would be there, how many units are being proposed for sale, how many have already been sold and accordingly, in absence of this information even the allottees would not be aware about the promoter as it is necessary for the authority to publish all such details on the website. Without these details, the authority can neither perform its functions for promotion of real estate sector as envisaged in section 32 of Act of 2016 nor can it perform the functions as envisaged under section 34 of Act of 2016. Therefore, even though from reading of sub section (1) of section 3 it appears that requirement of registration is only before advertising, selling, marketing etc., but section 4 makes it evident that the registration of real estate project before development starts i.e., “at the stage of proposed development”, which is only possible when the promoter has reached a stage where it is ready to undertake development and when this is read with word “ongoing”, it further becomes clear that legislature intended to include the projects where the promoter is developing or is in a position to develop real estate project as provided in section 4 within ambit of “ongoing” as on 01.05.2017.

14. A further tinge of the necessity of documents to be enclosed along with application for registration is provided in section 7 of Act of 2016 which postulates about revocation of registration by the authority. One of the grounds provided for revocation of registration is that “the promoter violates any of the terms and conditions of the approval given by the competent authority“. This supports the interpretation that no regulation is possible without the documents and information enclosed, as provided in section 4 of the 2016 Act. Thus, authority as envisaged by the legislature in scheme of the Act, is to carry out a herculean task of regulation of entire real estate sector, and not to act merely as a registrar office of only maintaining the records of registration. This is possible only if the project is registered after the authority is satisfied that promoter has necessary permissions/approvals to carry out the development of real estate project. The act of registration cannot be mechanical rather it is necessary for ensuring transparency in real estate sector and is one of the major steps towards achieving goal aimed by the Act because by granting registration, the authority has to overlook that promoter is compliant with the permissions granted to it by the competent authority for developing the project. In case, it is non-compliant, authority is empowered to revoke registration which would rightly impact the developer/promoter as he would not in a position to sell any part of the project in view of bar under section 3 of Act of 2016. To further give teeth to section 3, legislature added section 59 for punishing any act which is contravention to section 3 of Act of 2016. The act envisages a complete and full proof mechanism, therefore, at first instance it is imperative for the authority to ensure that it has entire details of the project which is possible only and only if the promoter is able to fulfil all necessary conditions provided in section 4 which are self explanatory about the aspect that “real estate project” has been conceptualised and promoter has made sufficient alteration in his position by taking various approvals to start developing a real estate project. If that is so, a project which is far from being “developed” and is still the stage of “conceptualisation” cannot be termed as “ongoing” because the act intends to regulate “development” of project and not the “conceptualisation”.

15. As far as scheme of the Act of 2016 is concerned, it is clear that grant of all necessary permissions/approvals etc. precede the start of real estate project as these permissions are important to put a promoter in a position to start “developing” the project. Accordingly, a promoter who was not having all necessary permissions so as to enable him to develop a real estate project as on 01.05.2017, cannot be included within the scope of “ongoing” for the purpose of registration within three months from the date of commencement of the Act. It is being made clear that assessment is being made only for the purpose of assessing whether a project would be ongoing on 01.05.2017, because in any eventuality any “real estate project” is required to be registered at the stage of “proposed development” as envisaged in section 4 and also discussed herein above.

16. In view of the discussion made herein above, if we now read the definition of “ongoing projects” as provided in Rule 2 (o) of Haryana Real Estate (Regulation and Development) Rules, it would become clear that taking mere licence before 01.05.2017 is not the sole criterion for a project to be termed as “ongoing” project, it has to be in a stage where promoter is in a position to develop the project i.e. has taken all permissions required prior to start of real estate project or has started developing it already. The grant of licence before 01.05.2017 is though the initial point but “development works not yet completed” is determining the stage as envisaged within the definition of “real estate project” in section 2 (zn) which involves “development” and takes care of the mandate of section 4 of Act which requires registration for the “proposed development” as well, but at the same time excludes the stage of getting permissions/sanctioned plan etc., which as per section 2 (zq) are required “prior to start of real estate project”. Therefore, an “ongoing project” is one wherein as on 01.05.2017, the promoter was in a position to start the development of real estate project after taking all permissions/approvals/sanctioned plans along with the projects which are already in development stage.A “real estate project” connotes “development” and it would be possible only when it is conceptualised and the promoter is in a position to put that concept/idea to life.

17. Therefore, the legal position as discussed above can be summarised in the manner as follows:-

(i) “real estate project” connotes “development” as defined in section 2(s) i.e., conversion of the immovable property/land into apartments/flats/plots etc. for purpose of selling it does not include within its ambit a mere “conceptualisation” but a stage at which the promoter has conceptualised and taken necessary approvals for developing the project. Therefore, concept of `ongoing’ stems out from the definition of real estate project connoting development as against mere conceptualization.

(ii) The requirement of registration kicks in, the moment when the promoter is ready to start developing a real estate project because section 4 also refers to a project which is “proposed to be developed”. When definition of “real estate project” is read along with the word “proposed” as used in section 4, it definitely implies that “proposed real estate project” which has come ahead of the stage of conceptualization is covered within the ambit of registration. This garners support from definition of “sanctioned plan” provided in section 2(s) which itself states that the approvals are required “prior to start of real estate project” and from the requirements given in section 4(2) which the promoter is required to fulfil in order to get the project registered. Therefore, as a logical corollary, all such projects wherein a promoter had obtained all relevant permissions and was in a position to initiate development along with such project which were already at development stage and have not been granted a completion certificate, are included within the ambit of “ongoing” project as used in section 3 proviso.

(iii) Definition of “ongoing project” as given in rule 2 (o) of Rules of 2017 necesitates twin requirement i.e., licence was taken before 01.05.2017 and development works are yet to be completed. The words “development works are yet to be completed” are cautiously used to include within its ambit such projects wherein either the promoter was in a position to start developing real estate project or has already started the development, but such development is not complete. Thus, it takes care of scheme of act as discussed in point (ii) above i.e., a project would be categorised as “ongoing” on the date of commencement of the Act of 2016 when a promoter is ready to start a real estate project as is contemplated from the scheme of Act of 2016 or has already started development and has not received a completion certificate.

Therefore, the ultimate test to decide whether a project would be ongoing as on 01.05.2017 is to answer a simple question whether a promoter was in a position on 01.05.2017 to start developing a project and to fulfil the requirements of registration given in section 4 of Act of 2016 read with rule 3 and 4 of Rules 2017 or is already in the stage of development but has not received completion certificate. If yes, it would be “ongoing” as on 01.05.2017.

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During the past few weeks, in the wake of Corona virus’s second wave hitting its peak, we have been having some really interesting observations from the higher judiciary. On April 24, 2021 a Division Bench of the Delhi High Court observed that it will “hang any person” who tries to obstruct oxygen supplies to hospitals in Delhi. Similarly on May 4, a Division Bench of the said court told the state counsel that, “you can put your head in sand like an ostrich, we will not” and issued contempt notice against the Union Government, for failing to supply 700 M.T. of oxygen to Delhi, every day. A bench of the Madras High Court said on April 27, 2021 that the election Commission is singularly responsible for the second wave of covid and should probably be tried on murder charges for their failure to ensure adherence to COVID-19 protocols, during the election. The observations which Supreme court later was constrained to say, “were harsh and inappropriate”. The Supreme Court further emphasized that “there is need for judges of superior courts to exercise restraint…..”. However the judicial quote that probably takes the cake is the one, in which the Delhi High court on June 1, 2021, while directing the Government to prioritize younger people over older ones, when it came to administering Amphotericin-B, a drug used to treat Mucormycosis, observed that the young are the “future of the country” and need to be saved, while the elderly have , “lived their life” and that the Government should learn from the foreign countries in this regard. It must also be borne in mind that not all such observations get reported in papers. Any practicing lawyer who has put in years, will have much more to narrate, usually the quotes that get to be cited the most, are the ones laced with rare humour.

However, the question is what makes the higher judiciary, at times, make such sweeping or even intemperate remarks, when the role assigned to higher judiciary in the Constitution makes it almost necessary that the observations that come from a judge holding a court, should always be tempered with moderation, restraint, discipline and even wisdom. Is it the extraordinary hard work that the judges need to put in, in order to keep up with ever increasing piles of case files or is it because the higher courts have come to firmly believe that they are the ultimate arbiters in the country and therefore every order or decision or policy of the state must get their stamp of approval, for things to move forward, at all?

It has long been settled and accepted, even by judicial verdicts of the apex court, that the courts are not ordinarily to interfere in the policy matters of the state. In Census Commissioner & others v. R. Krishnamurthi (2015) 2 SCC 796, where a High Court had issued directions to Census department to conduct caste-wise census to achieve social justice, the Supreme Court held, “it is not within the domain of the court to Legislate…. The courts have the jurisdiction to declare the law as unconstitutional …… . But the courts are not to plunge into policy making by adding something to policy by way of issuing a writ of mandamus. There, the judicial restraint is called for, remembering what we have stated in the beginning…” . What the Judgement states in the beginning are the various quotes (all worth reading), aimed at reminding that “…refrain and restraint are the essential virtues in the arena of adjudication because they guard as sentinel….”. One such quote mentioned is from “centuries back” of Francis Bacon, who said thus;

“Judges ought to be more learned than witty, more reverend than plausible and more advised than confident. Above all things integrity is their portion and proper virtue. …Let the judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions but yet lions under the throne”.

Again in Union of India v. Indian Radiological & Imaging Association, it was simply held that, “The wisdom of the legislature in adopting the policy cannot be substituted by the court in the exercise of the power of judicial review”.” Judicial review cannot extend to reappreciating the efficacy of a legislative policy adopted in a law which has been enacted by the competent legislature”.

Many more such verdicts, dripping in wisdom, can be mentioned here but these two are enough to illustrate the point. The question however that begs for an answer here is, why do very often courts in India forget or neglect such pearls of wisdom laid out by their own revered seniors? Why nowhere else in the world, given the global scale of the pandemic, apart from India, have the courts, distrusting the state, taken upon themselves to arrange for oxygen, medicines and the vaccine and also to direct which section of patients be attempted so be saved and which should be allowed to let go for having “lived their life”. These kinds of directions without any doubt, are beyond the jurisdiction of the courts. These are clearly the arenas which must be left for the Government to govern, preferably with the help of the experts. An assumption that all in the Government are either fools or are corrupt or simply incompetent cannot always be a valid starting point of all judicial actions. The courts must never disregard that the preamble of the Constitution of India unequivocally makes the `people of India’ the very source of all the power that flows from the various provisions of the Constitution. It is thus, us, the people of India, who are the ultimate source of power in India. It is these very people who go to polls every five years to elect their representatives in the Parliament and the state legislatures, who in turn must alone, as the chosen representatives of people, enact the laws and frame the policy for the people of India. Only these representatives, empowered by almost a sacred process of elections, are answerable and accountable to people of India and therefore alone have the power to enact laws and to frame the policy governing “we the people of India”, deserving therefore some respect, of the courts as well. The people of India in turn have the right and the power to change their representatives, in the next elections, if and when they do not approve of the policies or the laws framed by their elected representatives. The observation of the CJI on June 30, that “the mere right to change the ruler once every few years, by itself need not be a guarantee against tyranny of the elected” has to be taken to mean that tyranny of the elected, whenever it takes place, is also to be curbed by application of laws of crime and procedure, etc., but it cannot be taken to mean that higher judiciary can be allowed to have a free run, even when it came to formulating policy and the laws by the legislature, for it is this, which is the prime purpose for which the elections are held and elected representatives are elected at all. Moreover, as some of the observations mentioned above show, this debate also raises a question, how the tyranny of the unelected and in powerful office, for a long haul, is to be dealt with?

We all know how the number of pending cases, awaiting their turn to be heard and decided are piling up, by the day, in all courts in the country, will it, therefore, be not a more useful and purposive use of the court’s time to hear and decide pending cases of ordinary folks, then to foray in the arena not meant for adjudication by the courts and thereby respect the division of labour, clearly demarcated by the Constitution of India?

]]> https://lawfinderblog.com/in-defense-of-the-legislature/feed/ 0 https://lawfinderblog.com/mesne-profit-compensation-on-account-of-unauthorized-holding/?utm_source=rss&utm_medium=rss&utm_campaign=mesne-profit-compensation-on-account-of-unauthorized-holding https://lawfinderblog.com/mesne-profit-compensation-on-account-of-unauthorized-holding/#comments Tue, 26 Sep 2023 06:26:18 +0000 https://lawfinderblog.com/?p=4356 The underlying principle based on which the `Code of Civil Proc...]]>

The underlying principle based on which the `Code of Civil Procedure, 1908′ functions is `ubi jus ibi remedium‘ that signifies that where there is a right, there is a remedy. The concept of mesne profits has been developed from this principle because it is the law of nature to provide the right to compensation where there has been an infringement or breach of a legal right. The concept of mesne profits has its origin in the medieval period. Under the feudal system, the King owned all land. The King would let out a part of these lands to his barons on the condition that they will provide him with soldiers whenever he wanted to raise an army.

Mesne Profit are described in Section 2(12) of the Code of Civil Procedure, 1908, as those profits that the person in wrongful possession of the property actually received or could have obtained with reasonable diligence, along with interest on those profits; however, profits attributable to improvements made by the person in wrongful possession is not included. The procedure presenting the rights of the parties involved in a suit concerning mesne profits, a civil court will rely on Rule 12 of Order 20 of Code of Civil Procedure, 1908. When a decree has to be passed for recovery of possession of immovable property and for mesne profits then the procedure as laid down in Order 20 Rule 12 CPC would have to be followed.

The Civil Procedure Code, 1908, does not specify any standards by which the mesne profits should be evaluated. The law just stipulates that any profits gained from renovations or upgrades of the property are disregarded however the interest on such profits is included. Mesne profits must be in net profits as well, under the equity rule. Mesne Profit is a type of damage; hence the government cannot set a set standard on how to measure them.

The amount of mesne profits will thus be decided by the court at its discretion based on the various factors like Nature and Condition of the property; Location of the property; Value of the property. However, as we are unable to specify a specific range for mesne profit, the courts must adhere to a few guidelines when determining the amount to be granted. The profit taken the account is made by the person in wrongful possession, restoration of status before the dispossession of the Decree-holder. The uses to which the decree-holder could have put the property in if he was the possessor. A lessee, tenant, or licensee who occupies the property for a length of time longer than that for which authorization was granted, or whose occupancy is terminated by termination, revocation, or order of the court, is considered to be in unlawful possession and is responsible for paying mesne profits. It is settled principle of law that in case of mesne profits the burden of proof rests on the claimant i.e. the plaintiff. Before claiming mesne profit, the plaintiff has to establish before the Hon’ble Court that he was lawful owner of the property and he was deprived of it by the unlawful possession of the defendant. The plaintiff having proved the aforementioned facts becomes entitled to mesne profit.

The tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree.

The basis of determination of the amount of mesne profit, depends on the facts and circumstances of each case considering place where the property is situated i.e. village or city or metropolitan city, location, nature of premises i.e. commercial or residential area and the rate of rent precedent on which premises can be let out are the guiding factor in the facts of individual case.

There could be no straight jacket formula while fixing the amount of mesne profits in such cases and the Courts would have to be guided by the facts and circumstances of each case and upon various judgments to fix the mesne profits. There should be a balance between the competing claims between mesne profit at market rate and reasonable compensation for landlord. The basic burden lies upon the landlord to prove and support his case of reasonable compensation/mesne profits. He must put on record material documents/compensation along with the affidavit to support his case of enhanced. The material if placed by the landlord/Licensor/Owner, the Court needs to consider the said material by giving full opportunity to the tenant/Licensee/Occupant/trespasser/obstructionists. The Rent Control Legislation, governing the particular premises/Location/residential or non-residential area of the premises, the age/nature and the construction of building/premises, the facilities in the premises and outside the premises, advantages and disadvantages, the market value and the rental value of the premises based on architecture/expert/valuation reports/opinion, other instances of the rent/license fees of similarly situated premises and the date of termination of the tenancy/license are to be considered while determining the mesne profit. The compensation was awarded as condition precedent should not be oppressive and unreasonable which in a given case, if tenant failed to pay, has no option but to suffer the execution of a decree, as observed by the Apex Court in Niyas Ahmed (supra). The user and the use of the premises are also material. The market value changes with time. The stamp duty is also changes accordingly. The rent/license fee/compensation so fixed at the interim period, based upon the market value may in a given case needs to be changed or re-fixed if case is made out. It may go up or go down if market value changes drastically. One cannot overlook that at the time of basic agreement, both the parties mutually agreed to the particular rent/Leave license fee irrespective of valuation of the property. Now, when the Court fixes the compensation/license fee, after termination of the tenancy, there is no question of any agreed rent or compensation. The Court after giving opportunities to both the parties, needs to decide the interim and urgent issue of grant of provisional fair and reasonable compensation/occupation charges, based upon authenticated material produced on the record, pending the Appeal, summarily. There is no question of detail trial, but it is an essential condition precedent to grant stay of the eviction decree/order on the footing of Order 41 Rule 5 of Civil Procedure Code. The final decision of the appeal should be uninfluenced by such tentative figure/order. Such provisional payment should be condition precedent but it is always adjustable. The amount so fixed in such proceedings is tentative figure. Such interim order/payment is always subject to the final result of the appeal. The cases of trespasser, unauthorized occupant, obstructionist need to be dealt with again on different footing than that of a regular tenant/protected tenant/licensee as they are not governed by the Rent Control Legislation. Such unauthorized or illegal occupants, based upon the material produced on record, after giving opportunity to them may be directed to pay such occupation charges/compensation, pending the appeal, at the current market rate/rent which may be determined by the Court, taking note of interest of both the parties.

The landlord is entitled to reasonable compensation from the date of the eviction order i.e. the date when the tenant’s possession became illegal. This however could not be extended to a case where, for instance the landlord moves an application after inordinate period of delay. Resultantly, the period for which the amount would be payable must be restricted to 3 years.

Under Section 2(12) of the Civil Procedure Code, 1908, which contains the definition of mesne profit, interest is an integral part of mesne profits and has to be in the computation of mesne profits itself. This proceeds on the theory that the person in wrongful possession appropriating income from the property himself gets the benefit of the interest on such income.

If the tenant having suffered a decree or order for eviction may continue his fight before the superior forum but, on the termination of the proceedings and the decree or order of eviction first passed having been maintained, the tenancy would stand terminated with effect from the date of the decree passed by the lower forum. In the case of premises governed by rent control legislation, the decree of eviction on being affirmed, would be determinative of the date of termination of tenancy and the decree of affirmation passed by the superior forum at any subsequent stage or date, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy.

In calculation of mesne profits, once the rent paid on similar premises on same area was taken as the basis and the definition of mesne profits in Section 2(12) CPC provides that mesne profits include the interest thereon. The market rate as per the current potential of the suit property should be considered while deciding on the amount of mesne profits to be granted to the property owner.

To summarize, mesne profits of property are defined as those profits that the person in wrongful possession of the property actually received along with interest on those profits and the actual profit gained by the possessor or reasonably might have received with the use of the said property. Additionally, rather than considering what the plaintiff has lost as a result of being deprived of possession, the court calculates the mesne profits based on what the defendant has acquired or reasonably could have gained with ordinary effort by unlawfully having the property. Mesne profits are a form of damages caused to the actual owner and the right to sue for mesne profit is a right to sue for damages. This right is a right in personam which cannot be transferred and cannot be attached or sold in execution of a decree against the person entitled to the decree under Section 60 of the Code of Civil Procedure. The period of limitation for a suit for the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant is three years and the time of limitation begins to run when the profits are received.

Judgements relied upon:

1. M/s. Martin & Harris Private Limited & Anr. v.Rajendra Mehta & Ors., 2022(8) SCC 527.

2. Anderson Wright & co. v. Amarnath Roy, 2005 (2) RCR (C) 831.

3. N. Dasjee v. Tirupathi Devasthanam, AIR 1965 SC 1213.

4. M/s. Atma Ram Properties (P) Ltd v. M/S. Federal Motors Pvt. Ltd., 2005 (1) RCR (C) 212.

5. State of Maharashtra & Anr. v. M/s. Super Max International Pvt. Ltd., 2009 (2) RCR (R) 246.

6. Achal Mishra v. Rama Shankara Singh and Others, 2006 (1) R.C.R (Rent) 532.

7. Congress Committee (I) Rural and Another v. A. Brahmgyan Singh, 2022 (2) RCR (R) 212.

8. Angoori Devi and others v. Smt. Satya Bhama, 2016(5) R.C.R (Civil) 1043.

9. M/s Yogpathy and others v. M/s Fabmark Exports, 2022 (1) RCR (R) 49.

]]> https://lawfinderblog.com/mesne-profit-compensation-on-account-of-unauthorized-holding/feed/ 1 https://lawfinderblog.com/the-supreme-and-the-supremer/?utm_source=rss&utm_medium=rss&utm_campaign=the-supreme-and-the-supremer https://lawfinderblog.com/the-supreme-and-the-supremer/#comments Tue, 26 Sep 2023 04:50:24 +0000 https://lawfinderblog.com/?p=4350 Of late the Parliament, the Executive and the Judiciary, seem perp...]]>

Of late the Parliament, the Executive and the Judiciary, seem perpetually locked in the battle of supremacy and the article 124 of the Constitution of India, in particular, has long been a battleground of tussle between the Union Government and `the Union Judiciary’ for seeking that primacy in the matters of appointment of judges to the Supreme Court and the various High Courts. Prior to the verdict handed down in the case of S.C. Advocates-on-Record Association v. Union of India (1993) 4 SCC 441, the judges were appointed to the Supreme Court by the President of India, “by warrant under his hand and seal after Consultation with such of judges of the Supreme Court and of the High Court …. as the President may deem necessary…”. This expression with regard to `consultation’ however was radically altered by the Supreme Court in the above referred to case in 1993, when the word “consultation” was interpreted by the 9-judge bench, to mean “Concurrence” or “Conformity”, with the opinion of the Chief Justice of India. It was further laid down that in case of a Supreme Court the proposal is to be initiated by the CJI and in the case of a High Court by the Chief Justice of that High Court and in the event of Conflict of Opinion, the view of the Chief Justice of India, is to prevail.

It is not that the system in place prior to 1993, in which the executive had the primacy, as per the express provision of the Constitution, was found rotten or broken down by the Supreme Court. In fact, to the contrary some very eminent judges such as Justice C. A. Vaidyialingam, Justice V.R. Krishna Iyer, Justice R.S. Sarkaria, Justice V.D. Tulzapurkar, Justice O. Chinappa Reddy, and Justice Kuldeep Singh, amongst the many more outstanding judges, had adorned the chair, under the original system in place prior to 1993.

Recently, the Supreme Court has held in Rajesh Sharma v. State of U.P. (2018) 10 SCC 472, that, “Function of this court is not to legislate but only to interpret the law“. In Kotak Mahindra Bank v. A. Bala Krishnan (2022) 9 SCC 364, while relying upon some earlier rulings on the point, a 3-judge bench of the Supreme Court has held that, “it is not permissible for the court to add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation.” The Supreme Court, however, does not seem to listen to its own self, as is apparent from the judgement in the case of appointment of Chief Election Commission that is Anoop Baranwal v. Union of India, wherein even after noticing that, ” while making a law is ordinarily a power with the legislative branch and being a power it cannot be compelled by a court….”, yet being “concerned with the devastating effect of continuing to leave appointments in the sole hand of the executive….”, the Supreme Court found, “that the time was ripe for the court to lay down norms”. The “norms” laid down provide for appointment of the Chief Election Commission on the same pattern as the Director of the CBI that is by the President on the advice of a committee consisting of the Prime Minister, the Leader of Opposition, and the Chief Justice of India. Nothing illegal however was found in the appointment the new Election Commissioner, despite summoning the file of his appointment from the union Government.

The Question is; is there any limit on the powers of the Supreme Court or does the Supreme Court being `Supreme’ has no limit on its powers. It needs to be clarified that the expression “Supreme Court” must be interpreted to mean supreme of all courts as distinguished from supreme of all authorities. The preamble of the Constitution of India makes it very clear that the people of this country are the ultimate source of all power, whose `solemn resolve’ has fathered this constitution and therefore are undeniably `SUPERME.’ It is none else but the people of India whose collective resolve has created this constitution. The question that next arises is, which institution best reflects the collective will of the people of India. It surely cannot be the Supreme Court and has to be the Parliament, whose members are directly chosen by the people themselves and therefore the weakening of this institution will necessarily amount to weakening of our democracy. The question that next begs for an answer is, can the Supreme court take over the functions of the parliament? If our democracy is to fit the most accepted definition of `democracy’ which is, `a rule of the people, by the people…’, then the answer has to be in the negative. The role of the courts, thus, has to be, to only interpret the law, framed by the Parliament and to apply the same in a given set of facts and the circumstances. In doing so it is important not to wonder off too far away from the actual text of the legislation and to reach at a conclusion that is not borne out from the plain and honest reading of the text of the legislation, even if the court is able to write a judgement that spreads over hundreds of pages, for reading in the text of the statute what clearly is not provided for or not intended to be provided for, has to mean taking away from the exclusive reserve of the people of India and thereby diluting their power and consequently the democracy.

Let us now examine the practical application of the new interpretation given to the language of Article 324(2). It is easy to see that in a committee consisting of the Prime Minister, the Leader of Opposition, (who is a leader of the party rejected by the people) and the Chief Justice, the P.M. and the Leader of Opposition will almost never agree upon a same person, giving the actual power, to choose the Election Commissioner, to the CJI. A position not only not envisaged in the constitution but also is one that clearly and decisively takes the power to appoint the EC from out of the hands of the representatives of people of India and thereby from out of the hands of people of India and almost places it in the hands of an authority not elected by the people, which certainly is not a situation that strengthens democracy.

]]> https://lawfinderblog.com/the-supreme-and-the-supremer/feed/ 1 https://lawfinderblog.com/high-court-and-district-family-courts-giving-burial-to-sacraments-sanskara-of-marriage-institution-in-hindus/?utm_source=rss&utm_medium=rss&utm_campaign=high-court-and-district-family-courts-giving-burial-to-sacraments-sanskara-of-marriage-institution-in-hindus https://lawfinderblog.com/high-court-and-district-family-courts-giving-burial-to-sacraments-sanskara-of-marriage-institution-in-hindus/#comments Sat, 23 Sep 2023 10:12:16 +0000 https://lawfinderblog.com/?p=4344

Marriage, according to the Hindu law, is a holy union for the performance of religious duties. It is not a contract. Mere fact, therefore, that a marriage was brought about during the minority of either party thereto, does not render the marriage invalid. A Hindu marriage is considered a sacrament, as the acceptance of the bride is a necessary and indispensable part of the ceremony. It was held by Bombay High Court in (1908) 32 that marriage amongst the Hindus was a sanskara or sacrament. It is the last of the ten sacraments enjoined by the Hindu religion for purifying the body from inherited taint. Same view was taken by Madras High Court in Gopalkrishnam v. Venkatnarasa (1914) 37.

The words “sacrament” or “sanskara” has various context driven meanings that broadly refer to “the putting together, accomplishing well, making perfect, a form of solemn recognition and getting ready”. Further sanskara or sacrament refers to learned behaviour repeated over a long period of time. It leaves impact in producing qualitative society. Religious purificatory rites and ceremonies are essential for sanctifying the body, mind, and intellect of an individual so that he may become a full-fledged member of the community or society. Personal sacraments are traditionally observed at every stage in a Hindu’s life, from the moment of conception to the scattering of funeral ashes. As per the Law Lexicon, according to Hindu law, marriage is a samskara and hence marriage of every coparcener is a family necessity.

Marriage and sonship constitute some of the unique chapters in the literaleges of ancient Hindu law. As early as the times of Rig-Veda marriage had assumed the sacred character of a sacrament and sanction of religion had heightened its character and importance. Marriage is the last of the ten sacraments, enjoined by Hindu religion for regeneration of men and obligatory in case of every Hindu who did not desire to adopt the life of a hermit or a Sanyasi.

However, with the passage of time a stage was reached when codification, in the matters of marriage and succession, had become indispensable. Far-reaching and fundamental changes had become inevitable for they alone could furnish fair and equable solutions to some of the most controversial questions in these areas. In the field of Hindu marriages, The Hindu Marriage Act, 1955 (Act for short) was passed by the parliament which came into force w.e.f. 18th May, 1955.

With the coming into force of the Act, various grounds were laid on the basis of which a petition for divorce could be presented by either the husband or the wife. The said grounds are, (i) that after the solemnization of the marriage, the other party had voluntarily sexual intercourse with any person other than his or her spouse; (ii) had treated the petitioner with cruelty; (iii) had deserted the petitioner for a continuous period of not less than two years; (iv) had ceased to be a Hindu by conversion to another religion; (v) had been incurably to be of unsound mind, or had been suffering from continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner could not reasonably be expected to live with respondent; (vi) had been suffering from venereal disease in a communicable form; (vii) had renounced the world by entering any religious order; (viii) had not been heard of as being alive for a period of seven year or more by those persons who would naturally have heard of it, had that party been alive.

In addition to the above said grounds, some grounds for obtaining a divorce decree have also been conferred exclusively upon a wife with which we are not concerned in the present write up.

It is well settled that no decree of divorce under the Act can be rendered in favour of a party unless any of the specific grounds laid down in Section 13 of the Act is pleaded and proved. Even in cases where the opposite party does not come forward to contest the claim then also the courts seized of the matter have to assess the evidence on merits and then to render the judgment.

Of late, on account of social changes there are broken marriages to such an extent that reunion of the parties is virtually not possible. In legal terminology such a situation is termed as “irretrievable break down of marriage”. However, under the scheme of the Act, no decree of divorce can be passed on this ground by observing that marriage between the parties had irretrievably broken down. The Apex Court, however, resorts to this course by exercising its extraordinary powers under Article 142 of the Constitution of India whereunder it is laid down that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause. This extraordinary power under this Article is meant to supplement the existing legal framework- to do complete justice between the parties- and not to supplant it. It is not restricted by statutory enactments but should be sparingly used and cannot be used where the issue can be settled only through substantive provisions of a statute. Any limited interpretation of the expression “cause or matter” would stultify the constitutional powers of the Apex Court. The Apex Court has rightly observed in some cases that it was advisable to leave this power undefined and uncatalogued so that there was elasticity enough to be mould any situation in any case.

In Sandhya Rani v. Kalyanram Narayaran (1994) Supp 2 SCC 588, the Supreme Court took the view that the parties were residing separately for the last more than 3 years and it had no doubt that marriage between them had irretrievably broken down. For this reason a decree of divorce was granted. Again same view was reiterated in Chanderkala Menon v. Vipin Menon 1993(2) SCC 6, where the parties were residing separately for the last many years and there was no chance of their reunion. In Kansal Devi v. Vinod Kumar Mittal (1996) 8 SCC 90, the parties were residing separately for last more than 10 years and the Hon’ble court reached the conclusion that marriage between them had irretrievably broken down. This very view was taken also in Naveen Kohli v. Neelu Kohli 2006(4) SCC 558 in which, besides the irretrievable break down of marriage, there were other issue of mental and physical cruelty.

However, in some cases, of late, the High Courts have also started granting decrees of divorce on the ground that marriage between the parties had since broken down irretrievably. For instance in a case reported as Parminder Kaur v. Gurpreet Singh 2022(4) RCR (Civil) 939, a Division Bench of the High Court of Punjab & Haryana granted a decree of divorce by observing that the parties were residing separately for 17 years and that the relationship between them had broken down beyond repairs. Again a Division Bench of the Hon’ble High Court of Punjab & Haryana granted a decree of divorce in a case reported a Ratandeep Singh Ahuja v. Harpreet Kaur 2022(4) RCR (Civil) 996 by observing that there were irreconcilable differences between the parties which had rendered the marriage, as of today, a mere legal fiction. Of course, there were some other grounds of cruelty etc also in the case. In Maheep Singh v. Loveleen Kaur 2023(1) RCR (Civil) 15, again a similar view was taken by observing that the parties were residing separately for the last about 10 years. Again same approach was adopted in Karanjit Singh v. Devender Kaur 2023(1) RCR (Civil) 1. It is note-worthy that in the said judgment the Hon’ble High Court observed also that power to grant a decree of divorce on the ground that the marriage had irretrievably broken down, of course, was of the Apex Court via Article 142 of the Constitution of India.

In this manner it is discernable that the High Courts have also started granting decree of divorce on the ground that marriage between the parties had gone beyond repairs or had irretrievably broken down.

This writer has also noted that in some of the Family Courts in districts also marriages are being dissolved on this very ground. In this manner, power of the Apex Court is being used in a mild manner at present in district courts and as also at the level of the High Courts, which may turn into a regular practice in times to come. I do not know whether it is due to lack of studies or the courts at the lower level are clogged with a large number of cases which they are not able to decide. Today at district levels, on account of heavy rush of work or on account of lack of work culture on the part of the advocates and the judges, adjournment is the rule and actual work on the case file is an exception. Its result is that no contested case under Section 13 of the Act can be decided in less than 5-10 years. If after completing this period the courts start granting decrees of divorce by observing that the parties were residing separately for the last many years and there were no chances of their reunion, then the concept of sanskara, which is the bedrock of a Hindu marriage, will be given a silent burial. It is also note-worthy that simply because 7-10 years had passed since separation of the spouses should not be a ground of divorce, specially when one of the spouses is clearly on the wrong side. It is also laid down under Section 23 of the Act that no party should be permitted to take advantage of his or her own wrong.

In M. Venkateshwaherlu v. M. Pushpalatha, 2023(1) RCR (Civil) 509, while granting a decree of divorce on the ground that marriage had since irretrievably broken down, the Apex Court observed categorically that the said power was being exercised by it under Article 142 of the Constitution of India and further that no other courts were entitled to invoke the said power.

It is, therefore, hoped that the High Courts and the District Family Courts should not resort to passing of decrees of divorce only on the ground that the marriage between the parties had since irretrievably broken down. They should not eat into the teak wood of the concept of sanskara like termites. It is for the parliament to amend the Act further if required.

]]> https://lawfinderblog.com/high-court-and-district-family-courts-giving-burial-to-sacraments-sanskara-of-marriage-institution-in-hindus/feed/ 2 https://lawfinderblog.com/scope-and-extent-of-review-jurisdiction-of-the-court/?utm_source=rss&utm_medium=rss&utm_campaign=scope-and-extent-of-review-jurisdiction-of-the-court https://lawfinderblog.com/scope-and-extent-of-review-jurisdiction-of-the-court/#respond Wed, 20 Sep 2023 07:09:47 +0000 https://lawfinderblog.com/?p=4337 The dictionary meaning of the word review is “the act of looking...]]>

The dictionary meaning of the word review is “the act of looking, offer something again with a view to correction or improvement”. As explained by the Apex Court in S. Nagraj and others v. State of Karnataka and another 1993 Supp (4) SCC 595, review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. The purpose of review is rectification of an order which stems from the fundamental principle that the justice is above all and it is exercised only to correct the error which has occurred by some accident without any blame.

2. The power of a Civil Court to review its judgment/decision is traceable in Section 114 CPC and the grounds on which review can be sought are enumerated in Order 47, Rule 1 CPC, which imposes definitive limits to the exercise of power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merits because it would be the province of a Court of appeal. Order 47 Rule 1 CPC is reproduced as under:-

“REVIEW : 1. Application For Review Of Judgment.

(1) Any person considering himself aggrieved –

(a) by a decree or order from which an appeal is allowed, but from which, no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him may apply for a review of judgment to the court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review or judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation : The fact that the decision on question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.

3. The first principle for exercising power of review is that it cannot be exercised as an inherent power. It must either be conferred by the law either specifically or by necessary implication. As held in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, the power of review is very much endowed upon High Court under Article 226 of the Constitution of India, being a court of plenary jurisdiction, in order to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Such power of review is to be exercised within the definitive limits, for which the grounds provided under Order 47 Rule 1 CPC provides sufficient guidance. The object and ambit of power of review has been explained by the Supreme court in Shri Ram Sahu (dead) through LRs and others v. Vinod Kumar Rawat and others 2020(12) Scale 415, in following terms:-

`…9. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of section 114 CPC, it appears that the said substantive power of review under section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47, Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47, Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review….’

4. The parameters provided in Order 47 Rule 1 CPC are three-fold, i.e., discovery and new and important evidence or matter, which after exercising due diligence was not in the knowledge of the person seeking review; mistake or error apparent on the face of record and any other ground which analogous to the aforesaid two grounds. In order to appreciate the workability, scope and extent of these grounds, it is imperative for us to delineate the principles as settled by the courts from time to time.

I. Discovery of new and important matter or evidence

5. When review is sought on the ground that some new evidence or matter has been discovered, the onus is on the party seeking review to show that such matter or evidence is relevant and it should be of such character that if same had been produced, it might have altered the judgment. Mere discovery of new evidence or new matter alone is not sufficient to seek review, it must necessarily of such importance having potential to change the view taken by the court at the first instance. The further controlling circumstance for seeking review on this ground is that the party seeking review has to show that such additional matter or evidence was not within its knowledge and even after due diligence same could not have been produced before the court earlier. The court before entertaining review on the ground of discovery of new matter or evidence is required to record its satisfaction about the three aspects, which can also be called as “triple test” i.e., (i) new matter/evidence discovered is of such nature which could change the judgment (ii) such new matter/evidence was not within the knowledge of the party seeking review (iii) same could not be produced before court even after due diligence. When any of the conditions of the test, as laid down above is not fulfilled, “discovery of new matter/evidence” ipso facto would not be sufficient ground for the court to interfere with the finality of the judgment.

6. This was the view expressed by the Hon’ble Supreme Court of India in the case of “The State of West Bengal and others v. Kamal Sengupta and others 2008 (8) SCC 612“, wherein the apex court had laid down the conditions required for seeking review of the judgment on the ground of “discovery of new matter or evidence”. The relevant para of the judgment reads as under:-

`…..14. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justiciae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier….’

II. Mistake or Error apparent on the face of record

7. A mere error whether factual or legal is not sufficient to invoke review jurisdiction because as has also been observed the Apex Court in Asharfi Devi (D) Thr LRs v. State of U.P. and others 2019(5) SCC 86, in order to attract the provisions of Order 47, Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case. As the phrase suggests, an error or mistake to be a ground to seek review must be such, which may strike one on a mere looking at the record and would not require a long-drawn process of reasoning to reach the conclusion that there has been a mistake or error. A mistake which is discovered after a process of reasoning would not qualify to be “an error apparent”. The following observations explaining the meaning of “error apparent on the face of record” in “Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 are worth noting: –

“An error which has to be established by a longdrawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from selfevident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.”

8. Only a “patent error” and not a “mere wrong decision” can be said to be an error apparent on the face of record. In Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 Supreme Court 233, the court held that error apparent must be something more than a mere error and must be one which is manifest on the face of the record. Similar observations were made by the Apex Court in the case of Parison Devi v. Sumitri Devi (1997) 8 SCC 715 holding that an error which has to be detected by reasoning can hardly be called as an error apparent on the face of record. It was observed as under:-

“9. Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not selfevident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be ‘reheard and corrected’. A review petition, it must be remembered has a limited purpose and cannot be allowed to be ‘an appeal in disguise’.”

9. Thus, a mistake or error which the party pleads for seeking review must be one which is self-evident, if a matter is required to be first reheard and then corrected, it would be an appeal under the guise of review. The courts have time and again emphasized on the narrow difference which exists between an appeal and a review. The courts exercising review jurisdiction have been time and again cautioned to not to walk on the path of reassessment of the judgment while hearing review application. While doing so, the courts have evolved “multiple facets” explaining scope and extent of “mistake or error apparent on the face of record” as a ground for seeking review.

10. Merely because a document which was forming part of the record was not considered at the time of deciding the case cannot be categorized as a mistake or error apparent on the face of record as was held by the Hon’ble Supreme Court of India in the Aribam Tuleshwar Sharmma v. Aribam Pishak Sharma and others (1974) 4 SCC 389. Such ground is the province of a court of appeal as under appellate jurisdiction, the court may correct all manner of errors committed by the subordinate court, but the review court can only review a mistake/error which is apparent on the face of record. An erroneous decision on merits cannot be a ground of review. The observations of the court reads as under:-

`….The Judicial Commissioner gave two reasons for reviewing his predecessor’s order. The first was that his predecessor had overlooked two important documents Exs. A-1 and A-3 which showed that the respondents were in possession of the sites even in the year 1948-49 and that the grants must have been made even by then. The second was that there was a patent illegality in permitting the appellant to question, in a single writ petition, settlement made in favour of different respondents. We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitutes a ground for review. It is true as observed by this Court in Shivdeo Singh v. State of Punjab [AIR 1963 SC 1909] there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.

In the present case both the grounds on which the review was allowed were hardly grounds for review. That the two documents which were part of the record were not considered by the Court at the time of issue of a writ under Article 226 cannot be a ground for review especially when the two documents were not even relied upon by the parties in the affidavits filed before the Court in the proceedings under Article 226. Again that several instead of one writ petition should have been filed is a mere question of procedure which certainly would not justify a review. We are, therefore, of the view that the Judicial Commissioner acted without jurisdiction in allowing the review. The order of the Judicial Commissioner dated December 7, 1967 is accordingly set aside and the order dated May 25, 1965, is restored. The appeal is allowed but without costs…’

11. After quoting the passage from Aribam Tuleshwar Sharma (Supra) with approval, the apex court once again reiterated in Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170, that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 CPC. The ratio laid down in the case of Parsion Devi (supra), Meera Bhanja (supra) and Aribam Tuleshwar Sharma (supra) was reiterated by the Hon’ble Supreme Court in Sasi (D) Through Lrs. v. Aravindakshan Nair and others AIR 2017 SC 1432, and following observations were made: –

`…6. The grounds enumerated therein are specific. The principles for interference in exercise of review jurisdiction are well settled. The Court passing the order is entitled to review the order, if any of the grounds specified in the aforesaid provision are satisfied.

7. In Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 Supreme Court 1372 the Court while dealing with the scope of review had opined:

“What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an `error apparent on the face of the record’). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an `error apparent on the face of the record’, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by `error apparent’. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.”

8. In Parsion Devi v. Sumitri Devi, 1997(4) RCR (Civil) 458 : (1997) 8 SCC 715, the Court after referring to Thungabhadra Industries Ltd. (supra), Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389, held thus:-

“Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise””

12. It is further settled that the power of review is to be exercised for “correction of mistake” and not for “substitution of view”. In Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596, the apex court observed that a review cannot be claimed for fresh hearing of the matter or for correction of an erroneous view taken on earlier point of time. The error of law or fact of which correction is being sought must “stare in the face” without needing an elaborate argument for establishing same. The observations of the court reads as under:-

“….30. The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression ‘any other sufficient reason’ used in Order 47, Rule 1 means a reason sufficiently analogous to those specified in the Rule…”

13. In the case of Lily Thomas v. Union of India (2000) 6 SCC 224, apex court observed and held that the power of review can be exercised for correction of a mistake but not to substitute a view. Only because there was a possibility of two views and the court had chosen to adopt one, can never be ground for review. A review cannot be an appeal in disguise. The observations of the court in this regard are as under: –

`….56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment. …’

14. The re-appreciation of evidence for finding the mistake or error in the judgment is beyond the scope and purview of the review jurisdiction. If in any case the court is required to reappreciate the evidence in order to find out the error/mistake in the judgment, it would amount to re-hearing of case which is domain of an appellate court. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. The Hon’ble Supreme Court in the case of Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. & Ors., (2005)6 SCC 651, clarifying this aspect, held as under:-

“10. …….In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.”

15. The order of the High court reviewing its judgment was held to be bad by the Apex court in Rajender Kumar v. Rambhai AIR 2003 SC 2095 on the ground that the High Court entered upon the exercise of reappreciation of evidence without first satisfying itself that order suffers from such an error which could lead to failure of justice. Unless and until, such an error exists, order cannot be reviewed. The relevant observations of the court are as follows:-

`…5. On a perusal of the order under challenge it is clear that the High Court without considering the question whether the judgment/order sought to be reviewed suffered from any error, entered upon the exercise of reappreciating the evidence and on such reappreciation of evidence redetermined the compensation by reducing the amount to the extent noted earlier.

6. The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.

7. Coming to the merits of the case, suffice it to say that on perusal of the order, which has been reviewed by the order under challenge did not suffer from any serious illegality, which called for correction by exercise of review jurisdiction.

16. The Hon’ble Supreme Court in the case of Inderchand Jain (D) through L.Rs v. Motilal (D) through L.Rs (2009) 14 SCC 663, reiterated the aforesaid view and held that re-appreciation of evidence is beyond the review jurisdiction.

17. A repetition of old and concluded argument, which was not accepted by the court at first instance, is not enough to repone the concluded adjudications. If once an argument does not get imprimatur of the court and the case was decided, the party cannot seek a rehearing of the original matter. The Apex Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501 by referring to a review petition seeking review on same relief and grounds as pleaded in original petition, observed that such “second innings” is impressible under guise of review and held as under :

“11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.

12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of “second innings” which is impermissible and unwarranted and cannot be granted.“

18. Even a failure to argue a point at the time of hearing of the matter by the court, is also not a ground for seeking review as it would be a case where the existing material was overlooked by counsel and not a case of excusable misfortune or mistake. This was so observed by a Division Bench of the Orissa High Court in the case of Union of India v. Sudhir Kumar Ray and Ors, AIR 1975 Ori. 64, holding as follows:-

“Failure to argue a point is not an envisagable ground for review under Order 47 Rule 1 CPC, according to which in only three cases mere review is permitted. Those cases are where new material has been overlooked by excusable misfortune, mistake or there is an error apparent on the face of record and where there is ‘any other sufficient reason’. The present case is not covered by the first two classes of cases. No new material has been overlooked by excusable misfortune or mistake; it is a case of an existing material being overlooked by the counsel and not a case of excusable misfortune nor a mistake. There is also no error apparent on the face of record.”

19. A perusal of the aforesaid precedents leaves no doubt that the Courts have repeatedly held that the jurisdiction and scope of review is not that of an appeal. It is a reluctant resort only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. The path on which the review court has to walk upon is indeed very narrow and guarded by the definitive limits. It has to make sure that while deciding review, it shall not transgress the limits and enter province of an appellate court. A petition seeking review cannot be entertained at drop of hat. “Any” or “every” mistake is not sufficient for invoking review jurisdiction. Mistake has to be such which is apparent and manifest on the face of record and if not corrected, would result into miscarriage of justice. There is no definitive test laid down to assess as to which mistake will be an error apparent on the face of record. From perusal of the judicial precedents as discussed above, it transpires that a mistake to be apparent shall be “self-evident” and “stare in the face” of it. If a mistake has to be discovered after examining the record and requires an argument to establish it, such mistake or error would be not be “apparent on the face of record” and would cease to qualify as a ground for seeking review. What is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it is thus, left to be determined judicially on the facts of each case.

20. The observations of Apex court in Delhi Administration v. Gurdip Singh Uban and others AIR 2000 SC 3737 are worth noting here wherein an argument was raised before the court that in every case where there is “injustice”, the Court should not feel shackled by rules of procedure nor constrained by the limited scope of a review application. The argument was rejected by the court after making reference to essay authored by Justice Cardozo, which in fact summarizes the boundaries within which a court has to act while balancing the rights of parties within the four corners of law and to not sway away under the influence of plea of “justice” and “injustice”. The observations of the court are as follows:-

23. The words “justice” and “injustice”, in our view, are sometimes loosely used and have different meanings to different persons particularly to those arrayed on opposite sides. “One man’s justice is another’s injustice” [Ralph Waldo Emerson : Essays (1803-82), First Series, 1841, “Circles”]. Justice Cardozo said:”The web is tangled and obscure, shot through with a multitude of shades and colours, the skeins irregular and broken. Many hues that seem to be simple, are found, when analysed, to be a complex and uncertain blend. Justice itself, which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at different times. Attempts to objectify its standards or even to describe them, have never wholly succeeded.” (Selected Writings of Cardozo, pp. 223-24, Falcon Publications, 1947.)

24. While the man who succeeds may think justice is on his side, the man who loses is prone to think that injustice has been done to him. Most litigants who have not won, presume that injustice has been unreasonably inflicted upon them. Their approach is subjective and personalised. Therefore, this appeal by Shri Shanti Bhushan for “justice” can take us nowhere. The State and DDA which are on the other side are impersonal bodies and if they are exercising statutory powers for public good and acquiring land for public purposes, the Court has to balance the rights of parties and this has to be done within the four corners of the law. We are not lay courts meting out justice according to our whims and fancies but are governed by law as well as by binding precedent.

III. Any other sufficient reason

21. The third ground enumerated under Order 47 Rule 1 CPC for seeking review is “any other sufficient reason”. There is no definition provided for the term “any other sufficient reason”. It is a general ground provided along with special grounds i.e., “discovery of new matter or evidence” and “mistake or error apparent of the face of record”. For interpreting the general words, doctrine of ejusdem generis also known as Lord Tenterden’s Rule, comes to the rescue. As per the said doctrine, when a list of specific words are being followed by the general words, the general words are interpreted in a way so as to restrict them to include the items or things which will be of same type as those of the specific words. The underlying principle behind the doctrine is that the color and context of the general words are to be derived from their context. Likewise, the expression “any other sufficient reason” when interpreted in view of aforesaid principle would mean such “sufficient reason” which is analogous to those specified immediately to it in the provision Order 47 Rule 1 CPC. In Chhajju Ram v. Neki and Ors, AIR 1922 PC 112, it was held by the Privy Council that analogy must be discovered between two grounds specified therein namely; (i) discovery of new and important matter or evidence; and (ii) error apparent on the face of record, before entertaining the review on any other sufficient ground.

22. In Moran Mar Basselios Chatholicos v. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526, the Hon’ble Supreme Court of India, has interpreted words “any other sufficient reason” in the manner as follows:-

`…..It has been held by the Judicial Committee that the words “any other sufficient reason” must mean ” a reason sufficient on grounds, at least analogous to those specified in the rule”. See — Chhajju Ram v. Neki’, AIR 1922 Privy Council 112. This conclusion was reiterated by the Judicial Committee in —‘Bisheshwar Pratap Sahi v. Parath Nath’, AIR 1934 Privy Council 213 and was adopted by our Federal Court in — ‘Heri Shankar v. Anath Nath’, AIR 1949 Privy Council 106 at pp. 110, 111. Learned counsel appearing in support of this appeal recognises the aforesaid limitations and submits that his case comes within the ground of “”mistake or error apparent on the face of the record” or some ground analogous thereto..’

23. The same view was reiterated in Debi Prasad and Ors. v. Khelawan and Ors., AIR 1957 All. 67; and Mohammad Hasan Khan v. Ahmad Hafis Ahmad Ali Khan and Anr., AIR 1957 Nag. 97 and thereafter in Lily Thomas (supra) wherein the court observed as under:-

`….58. Otherwise also no ground as envisaged under Order 40 of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case, (1995) 3 SCC 635 It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words “any other sufficient reason appearing in Order 47 Rule 1 CPC” must mean “a reason sufficient on grounds at least analogous to those specified in the rule” as was held in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa, AIR 1954 SC 440 this Court held that such error is an error which is a patent error and not a mere wrong decision…’

24. The principles as regards the scope and extent of review jurisdiction of the court, as also discussed above, have been summarized by the Hon’ble Supreme Court in Kamlesh Verma v. Mayawati and others 2013 (8) SCC 320 and were reiterated by the Hon’ble Punjab and Haryana High Court as well, in the case of Columbia Holdings Pvt Ltd and others v. State of Haryana and others RA-CW-357 of 2015. The principles set out in various judicial precedents can be summarized as follows:-

A. Exercise of review jurisdiction is called for only in cases where one of the following grounds exists:

(i) When there is discovery of new and important matter or evidence, subject to the fulfillment of the following conditions:-

a. new matter/evidence discovered is of such nature which could change the judgment

b. such new matter/evidence was not within the knowledge of the party seeking review

c. same could not be produced before court even after due diligence

(ii) When mistake or error apparent on the face of the record.

(iii) When there exists “any other sufficient reason”, which is interpreted as analogous to the aforesaid two grounds.

B. The review jurisdiction is not exercisable on following grounds:-

(i) Only a “patent error” and not a “mere wrong decision” can be said to be an error apparent on the face of record.

(ii) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(iii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(iv) If a matter is required to be first reheard and then corrected, it would be an appeal under the guise of review

(v) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(vi) The power of review is to be exercised for “correction of mistake” and not for “substitution of view”. Substitution of view would be the province of an appellate court.

(vii) Merely because a document which was forming part of the record was not considered at the time of deciding the case cannot be categorized as a mistake or error apparent on the face of record.

(viii) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.

(ix) The mere possibility of two views on the subject cannot be a ground for review.

(x) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(xi) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.

(xii) Failure to argue a point at the time of hearing of the matter by the court, is also not a ground for seeking review as it would be a case where the existing material was overlooked by counsel and not a case of excusable misfortune or mistake.

25. A perusal of the aforesaid judgments and principles reveals that the scope of review jurisdiction is narrow. As was rightly summed up by Justice Krishna Iyer in Northern India caterers (India) Ltd. v. Lt. Governor of Delhi 1980 (2) SCC 167, “A plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon“. Therefore, unless and until there is patent error in the judgment delivered which is visible on the face of it, the review jurisdiction cannot be exercised.

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1. Despite 75 years of the independence and continuous implementation of the reservation policy for Scheduled Castes over all these years in our country, still there is so much of confusion and misunderstanding amongst beneficiaries as well as authorities about the whole concept of reservation leading to continuous instances of depriving the genuine beneficiaries and allowing ineligible persons eat the share of bona fide entitled Scheduled Caste persons in a State. Some of the issues being consistently faced are does a migrant acquire the right of Scheduled Caste in the State of migration if his caste is/is not in the list of Scheduled Castes of the State of migration; does acquiring resident status of a State by virtue of residing in that State for 15 years makes a migrant eligible for privileges meant for people of Scheduled Castes in the State of migration, more so if his caste is found in the list of Scheduled Castes of that State; do children of such migrants whose birth takes place in the State of migration and whose caste with same nomenclature is included in the list of Scheduled Castes of the State of migration acquire status of Scheduled Caste person of that State?; does marriage changes caste of a woman, does a woman marrying a man of Scheduled Caste acquires the rights of being a Scheduled Caste of the State of origin of her husband; and whether a Scheduled Caste person carries with him the privileges after conversion to any other religion?

2. Through this article an attempt is being made to clear the cloud of doubts and misconceptions with regard the true spirit and concept of reservation for Scheduled Castes by taking the readers through the journey of evolution and interpretation of provisions by our Constitutional Courts.

A. Migration and Status of Scheduled Caste

3. The Constitution of India is suprema lex. The Preamble of the Constitution of India envisages ‘Sovereign Socialist Secular Democratic Republic’. Whereas in terms of Article 14 of the Constitution of India all persons similarly situated are entitled to enforcement of their fundamental right of equality before the law and equal protection of the laws. Articles 15 and 16 though aim at equality amongst citizens but also provide for certain exceptions. It envisages enabling provisions so as to enable the State to make any special provision for the advancement of any socially and educationally backward classes of citizens as provided in clause (4) of Article 15 of the Constitution of India and for making any provision for the reservation of appointments or posts in favour of any backward class of citizens or for the Scheduled Caste and Scheduled Tribes which, in the opinion of the State, is not adequately represented in the services of the State as provided for in clause (4) of Article 16 thereof. The term ‘backward class of citizens’ contained in clause (4) of Article 16 includes Scheduled Castes and Scheduled Tribes for all intent and purport.

4. The term ‘Scheduled Castes’ has been defined in clause (24) of Article 266 of the Constitution, as per which “Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of the Constitution. Article 341 of the Constitution of India, lays down the procedure and manner by which the castes are specified as “Scheduled Castes”. It reads as under:-

“341. Scheduled Castes:- (1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or group within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or groups, within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.“

5. In exercise of power conferred under Article 341 (1) of the Constitution of India, the President of India made Constitution (Scheduled Castes) Order, 1950 (as amended from time to time) thereby specifying the castes as “Scheduled Castes”. Paragraph (2) and (3) of the order provides as under:

“2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in Parts I to XXV of the Schedule to this order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those Parts of the Schedule.

3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of a Scheduled Caste.”

6. Indisputably, having regard to clause (2) of Article 341 of the Constitution tinkering with the said list is impermissible, save and except by a law made by the Parliament. The reading of the aforesaid paragraphs of the Constitution Order reveals that “resident” status of a person with respect to a locality is the focal point for determining whether his caste is `Scheduled’ or not. This aspect has been time and again clarified by the various notifications issued by Government of India. The instructions dated 22.03.1977 are relevant to shed light on the aspect of residence with respect to the status of a caste. The communication reads as under:-

“Thus the residence of a particular person in a particular locality assumes a special significance. This residence has not to be understood in the liberal or ordinary sense of the word. On the other hand it connotes the permanent residence of a person on the date of the notification of the Presidential Order scheduling his caste/tribe in relation to that locality.“

It further elaborated as

“Thus a person who is temporarily away from his permanent place of abode at the time of the notification of the Presidential Order applicable in his case, say, for example, to earn a living or seek education, etc., can also be regarded as a Scheduled Caste or a Scheduled Tribe, as the case may be, if his caste/tribe has been specified in that Order in relation to his State/UT. But he cannot be treated as such in relation to the place of his temporary residence notwithstanding the fact that the name of his caste/tribe has been scheduled in respect of that area in any Presidential Order.”

In respect of persons who are born after the date of Presidential Notification, it provides as under:-

“In the case of persons born after the date of notification of the relevant Presidential Order, the place of residence for the purpose of acquiring Scheduled Caste or Scheduled Tribes status, is the place of permanent abode of their parents at the time of the notification of the Presidential Order under which they claim to belong to such a Caste/Tribe.”

7. In course of time persons belonging to Scheduled Castes/Scheduled Tribes who had migrated from one State to another in search of employment or for education purposes and the like, experienced great difficulty in obtaining Caste/Tribe Certificates from the State from which they had migrated. To remove this difficulty, earlier instructions contained in the letters of 22.03.1977 and 29.06.1982 were modified by the Government of India by the subsequent letter dated 18.11.1982. By this clarificatory order forwarded to Chief Secretaries of all States/Union Territories, the only facility extended was that the prescribed authority of the State/Union Territory to which a person had migrated was permitted to issue the certificate to the migrant on production of the genuine certificate issued to his father/mother by the prescribed authority of the State of the father’s/mother’s origin provided that the prescribed authority could always enquire into the matter through the State of origin if he entertained any doubt. The certificate to be so issued would be in relation to the State/Union Territory from which the person concerned had migrated and not in relation to the State/Union Territory to which he had migrated. This clearly meant that the migrant would not be entitled to derive benefits in the State to which he had migrated on the strength of such a certificate.

8. The proposal regarding reduction in the period of cut-off point of date for migration was spurned by the Government of India vide a subsequent letter dated 15.10.1987 addressed to Secretary, Social Welfare, Maharashtra Government. It was Stated that the proposal could have been taken care of only if the lists of Scheduled Castes and Scheduled Tribes were made on all-India basis which, it was said, was not feasible in view of the provisions of Articles 341 and 342 of the Constitution. It is thus clear that a Scheduled Caste/ Scheduled Tribe person who migrates from the State of his origin to another State in search of employment or for educational purposes or the like, cannot be treated as a person belonging to the Scheduled Caste/ Scheduled Tribe of the State to which he migrates and hence, he cannot claim benefit as such in the latter State.

9. The controversy, as regards the status of a person belonging to a Scheduled Caste/Tribe on his/ her migration to the State other than State of origin, has come up for consideration before the honorable Courts frequently. The Constitution Bench of Apex Court in and Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors., (1990) 3 SCC 130 and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another v. Union of India and Anr., (1994) 5 SCC 244, have interpreted the scheme of Constitution to settle the controversy.

10. In Marri Chandra Shekhar Rao (supra), the Constitution Bench held that the expression “in relation to that State” would become nugatory if in all States the special privileges or the rights granted to Scheduled Castes or Scheduled Tribes are carried forward. It will also be inconsistent with the whole purpose of the scheme of reservation. For example, in Andhra Pradesh, a Scheduled Caste or a Scheduled Tribe may require protection because a boy or a child who grows in that area is inhibited or is at disadvantage. In Maharashtra that caste or that tribe may not be so inhibited but other castes or tribes might be. If a boy or a child goes to that atmosphere of Maharashtra as a young boy or a child and goes in a completely different atmosphere of Maharashtra where this inhibition or this disadvantage is not there, then he cannot be said to have that reservation which will denude the children or the people of Maharashtra belonging to any segment of that State who may still require that protection. It has to be borne in mind that the protection is necessary for the disadvantaged castes or tribes of Maharashtra as well as disadvantaged castes or tribes of Andhra Pradesh. Thus, balancing must be done as between those who need protection and those who need no protection, i.e., who belong to advantaged castes or tribes and who do not. Treating the determination under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Article 341 read with Article 15(4) of the Constitution. The Apex Court also noted the fate of such migrants where the migration was involuntary and answered that question in para 21 of its Judgment as under :-

“21. Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribes in the States of origin when, because of transfer or movement of their father or guardian’s business or service, they move to other States as a matter of voluntary transfer, will they be entitled to some sort of protective treatment so that may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to other is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the scheduled castes or scheduled tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has so migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to scheduled castes and scheduled tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. this is a matter which the State legislatures or the Parliament may appropriately take into consideration.“

11. The Constitution Bench while rejecting the contention of the petitioners that on migration the caste or tribe of the person concerned does not change and if such person is denied the concessions, benefits and privileges available to Scheduled Castes and Scheduled Tribes in the State to which he migrates, such a denial would be in violation of Article 14 of the Constitution, in that, the right to equality and equal treatment would be denied, observed that the same cannot be sustained. In the case of Action Committee (supra) the question posed by the Constitution Bench was as under:-

“Where a person belonging to a caste or tribe specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled tribe in relation to State A migrates to State B where a caste or tribe with the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste in relation to that State B, will that person be entitled to claim the privileges and benefits admissible to persons belonging to the Scheduled Castes and/or Schedule tribes in State B?”

The Apex Court while referring to the judgment in Marri Chandra (supra) made following observations:

“It must also be realised that before specifying the castes or tribes under either of the two Articles the President is, in the case of a State, obliged to consult governor of that State. Therefore, when a class is specified by the President, after consulting the governor of State A, it is difficult to understand how that specification made ‘in relation to that State’ can be treated as specification in relation to any other State whose governor the President has not consulted. True it is that this specification is not only in relation to a given State whose governor has been consulted but is ‘for the purposes of this Constitution’ meaning thereby the various provisions of the Constitution which deal with Scheduled Castes/Scheduled Tribes. The Constitution Bench has, after referring to the debates in the Constituent Assembly relating to these Articles, observed that while it is true that a person does not cease to belong to his caste/tribe by migration he has a better and more socially free and liberal atmosphere and if sufficiently long time is spent in socially advanced areas, the inhibitions and handicaps suffered by belonging to a specially disadvantageous community do not truncate his growth and the natural talents of an individual gets full scope to blossom and flourish. Realising that these are problems of social adjustment it was observed that they must be so balanced in the mosaic of the country’s integrity that no section or community should cause detriment or discontentment to the other community. Therefore, said the Constitution Bench, the Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled to in order to become equals with others but those who go to other areas should ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas.”

12. The Full Bench of the Bombay High Court in the case of Shweta Santalal Lal v. State of Maharashtra, (2010) 32 R.C.R. (Civil) 288, while considering the question that ” Whether a person who was not ordinarily resident as on the date of the relevant Presidential Notification in the area that now constitutes the State of Maharashtra will be entitled to the benefit of reservation in the State”, observed that what was relevant is not the date of migration, but the date of inclusion of caste or tribe in the Schedule. The person must be ordinarily resident on the date of the Presidential Notification in the geographical area from which such person claims the benefit. If a person migrates to a geographical area forming part of another State after the date of Presidential Notification, such a person will be treated as a migrant. After placing reliance on the law laid down by the Apex Court, the question framed was answered in the following terms:-

“In case of a migrant belonging to a Scheduled Caste, not ordinarily resident as on 10.3.1950 in the area that now constitutes the State of Maharashtra and in a case of S.T., considering Rule 5, on 6.9.1950, would not be entitled to benefits of reservation as S.C./S.T. in the State of Maharashtra. They and their progeny will continue to get the benefits of reservation in the State of origin.”

13. This judgment made the position of the children of migrants born in the State of migration abundantly clear. Thus, what stands now as per law laid down is that not just the first generation migrants but their children and further generations born after effective date of notification are not entitled to get any benefits meant for Scheduled Caste/Tribes from the State of migration even if their caste by same name is recognized as Scheduled Caste or Scheduled Tribe in the State of migration and/or in their State of origin. Furthermore, the State of origin is not defined by the birth or domicile (resident) of a State. This has been clarified by the Government of India through communication of 22.03.1977 thereby clarifying that it is the permanent abode at time of the relevant notification which is to be seen even for the children born after the date of notification. And the prescribed Revenue authorities of that place of permanent abode at the time of relevant notification alone can issue the caste certificate. The said communication has passed the judicial scrutiny in the case of Action Committee (supra).

14. Recently, the Hon’ble Supreme Court of India in Ranjana Kumari v. State of Uttarakhand & Ors., (2019) 15 SCC 664, observed that two Constitution Bench judgments of this Court in Marri Chandra and Action Committee have taken the view that merely because in the migrant State the same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State and, issuance of a caste certificate by the State to a migrant cannot dilute the rigours of the these Constitution Bench Judgments.

15. Therefore, as far as status of migrant is concerned, law is categoric and clear that a person take benefit related to caste only in the State of origin and not in the Sate to which it has migrated for any reason.

16. Another question that arises here is whether the law laid by both the Constitution Benches applies only to matters pertaining to reservation benefits sought for educational and service purposes, or does it extend to all the matters related with the Scheduled Caste/Tribe. This has been answered by the Supreme Court in the latest judgment in Bhadar Ram v. Jassa Ram, (2022) 4 SCC 259, stating that the decision in the case of Action Committee (supra) shall be applicable with full force even to a dispute with respect to sale /sale of property as the reasonings given in the case of Action Committee (supra) are on interpretation and on a plain reading of Clause I of Articles 341 and 342 of the Constitution of India. And there is no reason to restrict the applicability of the decision only with respect to employment, education or the like and not to make applicable the same with respect to purchase and sale of the property as in present case of sale and purchase of the land belonging to a Scheduled Caste person in the State of Rajasthan and when the said land was allotted to the original land owner as Scheduled Caste landless person.

17. Thus, the law as laid down by Hon’ble Supreme Court is that a person and his progeny can claim benefits of reservation only from the State of origin, that is, the State where they had their permanent abode on the date of relevant notification and under no circumstance it can be extended to migrants of that caste who came to State after the relevant notification, even if they have lived in State of migration for very long period, their children or grandchildren are born and brought up in that State, even if they have got their education and are employed or have established business in that State or even if whatsoever amount of land and property they may have acquired in that State. It is certainly not permissible under law to dilute this provision and allow any person to get benefits meant for Scheduled caste from the State of migration on the ground that he/she was born in that State or have become resident of that State by virtue of staying in that State for 15 years or more.

B. Does Marriage acts as a Gateway to Scheduled Caste Benefits

18. The ancient Hindu tradition of wife adopting the `surname’ of the husband after marriage, often leads to misconception that the `caste’ of the wife changes to that of her husband after marriage. But here it must be understood that the caste is attained by birth (exceptional cases being of inter-caste marriages, adoption etc) and cannot change upon marriage. The issue is no longer res-integra, for it stands settled by Hon’ble Supreme Court of India in its various decisions. At first reference is made to the judgment of the Apex Court in Mrs. Valsamma Paul v Cochin University, (1996) 2 SCT 248, wherein following question was framed for consideration:

“Whether a candidate, by marriage, adoption or obtaining a false certificate of social status would be entitled to identification as such member of the class for appointment to a post reserved under Article 16(4) or for an admission in an educational institution under Article 15(4)?”

19. The Apex Court while answering the question in negative, observed that the object of reservation is to remove handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected and was sought to bring them in the mainstream of the nation’s life by providing them opportunities and facilities. Therefore, a candidate who had the advantageous start in life being born in Forward Caste and had march of advantageous life but is transplanted in Backward Caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) or 16(4), as the case may be. Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution.

20. The aforesaid principle has recently been reiterated by the Apex Court in Sunita Singh v. State of Uttar Pradesh and others, (2018) 2 SCC 493, wherein a complaint was lodged against the appellant to the effect that she was born in “Agarwal” family (general caste category) and after her marriage with a person of Scheduled caste, she obtained the caste certificate in question. After making preliminary verification, the jurisdictional officer directed to conduct an enquiry in respect of the caste certificate of the appellant. The Tehsildar vide his order dated 22/27.6.2013 cancelled the caste certificate of the appellant and asked the appellant to return the caste certificate issued earlier to the appellant. The Court observed that there cannot be any dispute to the fact that the caste is determined by birth and the caste cannot be changed by marriage with a person of Scheduled caste. Undoubtedly, the appellant was born in “Agarwal” family, which falls in general category and not in Scheduled caste. Merely because her husband is belonging to a Scheduled caste category, the appellant should not have been issued a caste certificate showing her caste as Scheduled caste.

21. Significantly, not only in the case of appointment but also in the cases of election, the Apex Court has consistently followed the aforesaid principles. In Sobha Hymavathi Devi v. Setti Gangadhara Swamy (2005) 2 SCC 244, while upholding the conclusion arrived at by the High Court, Hon’ble Supreme Court held that marriage by a non-tribe in a Scheduled tribe will not confer a status of such Scheduled tribe upon him/her so as to claim benefits of reservation under Articles 15(4) or 16(4) or 330 and 332 for such tribes for election or service. The said reservation would benefit only those who belong to a Scheduled caste or Scheduled tribe and not those who claim to acquire the status by marriage. Although it recognized that in a given case acceptance of such a marriage by the community may be held to subserve the purpose but in no uncertain terms held that reservation of a seat for a Scheduled Tribe in the House of the People or under Article 332 in the Legislative Assembly are constitutional reservations.

22. Likewise, in Sandhya Thakur v. Vimla Devi Kushwah, 2005 (2) SCC 731, the appellant was born a Maharashtrian Brahmin. She married to one Naresh Kumar Thakur who was a Namdev by caste. She filed her nomination for election for the post of Corporator for a Ward reserved for backward communities and got elected. The Apex Court while reiterating the law laid down in Sobha Hymavathi Devi (supra), observed “In the light of the decision in Valsamma Paul v. Cochin University and Others (supra) and our decision rendered today in Sobha Hymavathi Devi v. Setti Gangadhara Swamy, which were heard along with this appeal, it must be held that the appellant, who by birth did not belong to a backward class or community, would not be entitled to contest a seat reserved for a backward class or community, merely on the basis of her marriage to a male of that community…”

23. On a later occasion in Meera Kanwaria v. Sunita & Ors. (2006) 1 SCC 344, wherein the respondent contested an election for the Municipal Councilor from a seat reserved for a Scheduled caste woman and was declared elected. This was challenged by way of election petition on ground that the first respondent herein was born in an upper caste family, she could not have been considered to be belonging to Scheduled caste by reason of her marriage only. Hon’ble Supreme Court observed that it is one thing to say that a lady belonging to a forward caste has been accepted by the community to which her husband belongs; but it is another thing to say that her marriage has been accepted only by her husband’s family.

24. Recently, in the case of Ranjana kumari (supra), a three Judges Bench of Hon’ble Supreme Court had an occasion to consider the issue that if the caste of a migrant by way of marriage to person of Scheduled caste is found in the list of Scheduled castes of the State of migration as well, will the migrant be entitled to the status of Scheduled caste in the State of migration. In this case, the appellant belonged to Valmiki caste (Scheduled caste of the State of Punjab), who married a person belonging to Valmiki caste of Uttarakhand and migrated to that State. It was found that in the State of Uttarakhand also, under the Presidential order `Valmiki’ was recognized as notified Scheduled caste and accordingly, the State of Uttarakhand issued a caste certificate to the appellant. However, later it denied the benefits available to the Scheduled Caste belonging to State of Uttarakhand to the appellant. Thereafter the appellant approached the High Court. The High Court rejected the claim and said decision came to be challenged before the Apex Court. The said appeal was also dismissed with observations that in view of the two Constitution Bench judgments in Marri Chandra Shekar Rao (supra) and Action Committee (supra), merely because in the migrant State same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State.

25. Therefore, it is evident from the above judgments that the law as it stands today, it is very clear and categorical that a person who does not belongs to a Scheduled Tribe or a Scheduled Caste category by birth, simply by virtue of marrying a person belonging thereto cannot gain the status of that particular caste or tribe. Thus, let alone a General category candidate who marries a person belonging to a Scheduled Caste or a Scheduled Tribe, even a person belonging to Scheduled Caste or Scheduled Tribe of one State cannot get the benefit of Scheduled Caste or Scheduled Tribe in another State. These provisions are to benefit the real underprivileged of the State and not to be extended to those who come to the class by way of marriage or migration. However, SC/ST woman by birth would be eligible to take benefits of belonging to “Scheduled caste” category in the State of origin.

C. Claims Made by Off-Springs of Inter-Caste Marriages and Adopted Children

26. Another issue which is coming up for consideration before the courts is the claims made for social status certificates by off-springs of inter-caste marriage couples wherein the mother belongs to reserved backward class, may be Scheduled caste or Scheduled tribe or Other Backward class (OBC) recognized under the Constitutional scheme. While answering this question, each case has to be dealt with individually on the basis of its own facts. But the underlying principle remains same as discussed earlier – the claimant must have had suffered deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Courts had been liberal enough in the post-Constitutional, independent India where there is such great consciousness and so much effort is being made for the empowerment of women and when instances of inter-caste marriage are ever on the increase in such cases by not to rigidly follow the age-old tradition that the child gets its caste from the father.

27. In changing times when the society is acknowledging the family raised by single biological and adoptive mothers, there is a need to have a pragmatic approach while dealing with such cases. The reference here is made to the recent judgment delivered by the Bombay High court in Dr. Sonal Pratapsingh Vahanwala v. Deputy District Collector, (2022) 2 ALL MR 729, wherein the petitioner approached the High Court after she being single adoptive mother was denied caste certificate for her adopted son whose biological parents were unknown. While reflecting upon the provisions of section 12 of the Hindu Adoptions and Maintenance Act, 1956, Court observed that a conjoint reading of section 12 and section 9 sub-section 4 of this Act provides that the adopted child becomes a child of his or her adoptive father, mother for all purposes with effect from the date of the adoption and hence such a child would take the caste of the adoptive parents. While allowing the petition Court observed that the child being adopted from orphanage if not allowed to take caste of his mother would remain without identity throughout his life which would frustrate the very purpose of adoption, a situation not envisaged by law. Moreover, being raised by the single mother belonging to a Scheduled caste the fact that he has suffered the deprivations and humilities which his mother has faced being a member of Scheduled caste community could not be denied.

28. The law as laid down in Rameshbhai Dabhai Naika v. State of Gujrat, (2012) 3 SCC 400, by the Supreme Court is that while the presumption that the child has the caste of father is strong in inter-caste marriages and more so in marriages where the father belongs to a forward caste, but nonetheless by no means such presumption is conclusive or irrebuttable and it is open for the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled caste/tribe. And also to prove that he/she did not have any advantageous start in life being born to a forward caste father. But on the contrary, suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated a member of the community to which her mother belonged not only by that community but by people outside the community as well.

29. At the same time the Courts have cautioned that any concerned authority issuing such certificates in a routine manner would be committing the dereliction of Constitutional duty. In Anjan Kumar v. Union of India (2006) 3 SCC 257 while deciding the question as to whether the offshoot of the tribal woman married to non-tribal husband could claim status of Scheduled Tribe and on the basis of which the Scheduled Tribe certificate could be given, it observed that the Scheduled Caste and Scheduled Tribe Certificate is not a bounty to be distributed. To sustain the claim, one must show that he/she suffered disabilities – socially, economically and educationally cumulatively. The concerned authority, before whom such claim is made, is duty bound to satisfy itself that the applicant suffered disabilities socially, economically and educationally before such certificate is issued.

30. A similar controversy erupted in the case of Rumy Chowdhury v. Department Of Revenue, (2020) 5 AD(Delhi) 402, before Delhi High Court wherein the appellant was serving as a Wing Commander in the Indian Air Force and belonged to a Scheduled Caste community in Assam. After dissolution of her marriage, the appellant miserably failed before the Executive Magistrate to rebut the presumption drawn against her that her two children have the caste of their father, who belongs to a forward caste. Apart from contending that the ex-husband of the appellant has re-married and has nominated his children from the second marriage for all the benefits and that he has not provided any alimony to the appellant, no evidence had been brought on record to demonstrate the deprivations, humilities, handicaps, faced by the appellant or her children in their life. Such positive evidence was woefully lacking. The children were born when the marriage was subsisting and therefore, they were not entitled to the community certificate of the caste to which the appellant belongs. After the divorce, the children continued to keep the surname of the father, which showed that they have projected themselves to the society as belonging to a forward community. In the absence of any positive or cogent evidence demonstrating that the community of the mother had accepted the children and they have grown-up in the company of their relatives from the maternal side and had attended family holidays, ceremonies, rituals, gatherings, etc., thereby assimilating into the community, simply on the strength of the appellant having raised the children on her own, they cannot be entitled to a certificate of the caste to which their mother belongs. Court went a step ahead in observing that as the appellant was serving at a senior post in the Indian Air Force, her children have had the advantage of a safe, secure and sheltered environment, excellent schooling and other related opportunities. There was no occasion for them to have suffered any destitution, deprivation or denial, as would have been suffered by a member of the Schedule Caste from which their mother hails, to be eligible for a caste certificate. On the contrary, issuance of a caste certificate to the appellant’s children would result in depriving a genuine Schedule caste person of an opportunity to claim entitlement to the limited number of Schedule caste seats reserved in higher education and in service, thereby causing a setback to the equality goal enshrined in the Constitution.

31. The observations made by the Court goes on to show that the ultimate test in such case would be, whether the children were subject to deprivation, humility, denial or destitution on account of being a member of Scheduled caste/ tribe. In absence of such evidence, no benefit could be given based upon caste of the mother. It would be no gainsaying that these observations shall act as a guiding light so as to bring a balance in the approach of the legislatures that how long the blanket reservation to all who belong to the Scheduled castes be given viz-a-viz should it be denied to those who have been able to break the shackles of discrimination over the generations by availing the benefits meant for their community and should pave way for the more deprived to let them have better platform to get out of the social and economic disabilities they are facing since times immemorial owing to their caste.

D. Conditions for Acceptance for Scheduled Caste Benefits in Cases of Conversion and Reconversion

32. After having discussed the effect of migration and marriage upon the entitlement of person to caste related benefits, another aspect which is worth discussion is “effect of conversion upon the caste of a person”. Recently, the Apex Court has also seized of this issue and the Centre Government has appointed a Commission headed by former Chief Justice K.G Balakrishnan to examine the matter of according Scheduled caste status to new persons who claim to have historically belonged to the Scheduled Castes, but have converted to a religion other than those mentioned in the Presidential Orders under Article 341 of the Indian Constitution. Even though matter is under consideration, but it is important to the have a re-look on the judicial pronouncements in this regard by the courts.

33. As early as in 1952, while dealing with the issue of conversion in G. Michael v. S. Venkateswaran, 1952 (1) MLJ 239, the Hon’ble Court observed that a member of one of the castes or sub-castes when converts to Islam ceases to be a member of any caste. He becomes just a Mussalman and his place in Muslim society is not determined by the caste to which he belonged before his conversion. This decision of the Madras High Court was approvingly cited recently in K.P. Manu v. Scrutiny Committee, (2015) 4 SCC 1.

34. In C.M. Arumugam v. S. Rajgopal and Others, (1976) 1 SCC 863, three judges Bench of Supreme Court observed that the Paragraphs 2 and 3 of the Constitution (Scheduled Castes) Order, 1950 also support the view that even after conversion, a person may continue to belong to a caste which has been specified in the Schedule to that Order as a Scheduled Caste. Paragraph 2 provides that the castes specified in the Schedule to the Order shall be deemed to be Scheduled Castes but Paragraph 3 declares that, notwithstanding anything contained in Paragraph 2, that is, notwithstanding that a person belongs to a caste specified as a Scheduled Caste, he shall not be deemed to be a member of the Scheduled Caste, if he professes a religion different from Hindu or Sikh religion. Paragraphs 2 and 3 read together thus clearly recognise that there may be castes specified as Scheduled Castes which comprise persons belonging to a religion different from Hindu or Sikh religion and if that be so, it must follow a fortiori, that in such cases, conversion of a person from Hinduism cannot have the effect of putting him out of the caste, though by reason of Paragraph 3 he would be deemed not to be a member of a Scheduled Caste.

35. The Constitution Bench in The Principal, Guntur Medical College, Guntur v. Y. Mohan Rao, (1976) 3 SCC 411, has clearly laid down that if a person born to Christian parents, who, belonging to Scheduled Caste had converted themselves to Christianity, the said person on reconversion to his religion and on acceptance by his community with a further rider that he would practise the customs and traditions of the caste, would be treated as a member of the said Scheduled Caste and if the said caste is one of the castes falling within the Constitution (Scheduled Castes) Order, 1950, then he will be treated as a Scheduled Caste. The larger Bench in S. Anbalagan v. B. Devarajan, (1984) 2 SCC 112, dealt in detail with the legal position in regard to caste status on conversion or reconversion to Hinduism. It observed that the precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste makes it necessary, no expiatory rites need be performed and, ordinarily, he regains his caste unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion. The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deep rooted in the Indian people that its mark does not seem to disappear on conversion to a different religion. If it disappears, it disappears only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion. In this case the parents and sisters of the first respondent had become Christians and that the first respondent himself had been baptised when he was seven months old, but as per the evidence in the case the first respondent had long since reverted to Hinduism and to the Adi Dravida caste. There was not a scrap of acceptable evidence to show that he ever professed Christianity. On the other hand, evidence in the case showed that from his childhood, he was always practising Hinduism and was treated by everyone concerned as an Adi Dravida. Hence, the Court held him as a member of Scheduled caste and upheld his election in Lok Sabha against seat reserved for Scheduled caste candidate.

36. In three-Judge Bench decision in Kailash Sonkar v. Maya Devi, (1984)2 SCC 91 the Court posed the issue thus:

“The knotty and difficult, puzzling and intricate issue with which we are faced is, to put it shortly, “what happens if a member of a scheduled caste or tribe leaves his present fold (Hinduism) and embraces Christianity or Islam or any other religion” does this amount to a complete loss of the original caste to which he belonged for ever and, if so, if he or his children choose to abjure the new religion and get reconverted to the old religion after performing the necessary rites and ceremonies, could the original caste revive? The serious question posed here arose and has formed the subject-matter of a large catena of decisions starting from the year 1861, traversing a period of about a century and a half, and culminating in a decision of this Court in the case of C.M. Arumugam v. S. Rajagopal.”

The Court, after referring to several decisions including the decision in C.M. Arumugam (supra), has held thus:

“31. In our opinion, the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste. In order to judge this factor, it is not necessary that there should be a direct or conclusive proof of the expression of the views of the community of the erstwhile caste and it would be sufficient compliance of this condition if no exception or protest is lodged by the community members, in which case the caste would revive on the reconversion of the person to his old religion.

32. Another aspect which one must not forget is that when a child is born neither has he any religion nor is he capable of choosing one until he reaches the age of discretion and acquires proper understanding of the situation. Hence, the mere fact that the parents of a child, who were Christians, would in ordinary course get the usual baptism certificate and perform other ceremonies without the child knowing what is being done but after the child has grown up and becomes fully mature and able to decide his future, he ought not to be bound by what his parents may have done. Therefore, in such cases, it is the intention of the convertee which would determine the revival of the caste. If by his clear and conclusive conduct the person reconverts to his old faith and abjures the new religion in unequivocal terms, his caste automatically revives.”

Thus, it was held that the caste to which a Hindu belongs is essentially determined by birth. Upon conversion original caste remains under eclipse and as soon as the person is reconverted to the original religion, the eclipse disappears and the caste automatically revives.

37. Clarifying this issue, the Hon’ble Supreme Court of India in the case of K.P. Manu v. Chairman, Scrutiny Committee for Verification of Community Certificate, (2015) 4 SCC 1, has laid down three tests to be passed by the person for claiming the benefit of “Scheduled caste” on reconversion. These are (i) there must be absolutely clear cut proof that he belongs to the caste that has been recognised by the Constitution (Scheduled Castes) Order, 1950; (ii) there has been reconversion to the original religion to which the parents and earlier generations had belonged; and (iii) there has to be evidence establishing the acceptance by the community. In order to get recognition, all three aspects need to be substantiated, otherwise recognition would not be possible.

38. Therefore, as far as law regarding “reconversion” is concerned, it is settled, however, there is still less clarity as regards the status of persons, who convert to a religion other than those mentioned in the 1950 Order from the Scheduled Caste community and their entitlement to the benefit of reservation as Scheduled Caste. The said question is pending consideration before the Larger Bench as stands referred in Centre, Public Interest Litigation & Another v. Union of India. (Writ Petition (Civil) No.180 of 2004 vide order dated 21.01.2011) and as stated above the Commission constituted by the Central Government is also considering this aspect.

39. The aforesaid discussion goes on to show that the intent and object of the Constitution is very clear i.e., to uplift the persons who have faced dejection, destitution and humiliation on account of belonging to a particular caste. To ensure the same, restrictions have been imposed so that the persons who have had benefit of belonging to a forward class or practice a religion which does not recognize caste system do not hijack the benefits to the prejudice of actually deserving beneficiaries.

]]> https://lawfinderblog.com/scheduled-caste-reservation-untying-the-knots/feed/ 0 https://lawfinderblog.com/foreign-court-decree-of-divorce-its-competency-validity-in-india-with-analysis-of-concept-of-matrimonial-property/?utm_source=rss&utm_medium=rss&utm_campaign=foreign-court-decree-of-divorce-its-competency-validity-in-india-with-analysis-of-concept-of-matrimonial-property https://lawfinderblog.com/foreign-court-decree-of-divorce-its-competency-validity-in-india-with-analysis-of-concept-of-matrimonial-property/#comments Thu, 17 Nov 2022 12:15:17 +0000 https://lawfinderblog.com/?p=4314

Marriages are settled in heaven, and they are performed on earth. Happy couples are all alike, every unhappy couple is unhappy in its own way. That unhappiness often finds its painful way into a courtroom.

Whether and where a marriage can be dissolved is a matter in the domain of the earthly law governing the spouses, but the matrimonial laws are not common everywhere in the world and they differ from country to country. The problem arises when the parties have their domicile in one country and one of them obtains matrimonial relief in a foreign country. The moot question posed is whether the foreign court can pass a valid decree of Divorce, when the matrimonial chord between the parties is governed by the provisions of Hindu Marriage Act,1955 & ancillary to this is whether the decree passed by a foreign court can be recognized by the Court in India, as being conclusive.

It is further pointed out that many foreign decrees in matrimonial cases is becoming the order of the day and therefore, a time has come to ensure certainty in the recognition of the foreign judgments in these matters. In the absence of any legislation, the Supreme Court of India has taken initiative and ventured to lay down the minimum rules of guidance for securing the certainty in the matters of recognition of foreign judgments as according to it beginning has to be made as best as one can.

To fully understand the issues, it is necessary to go through various provisions of enactments, the interpretation of various enactments by the Supreme Court of India and other High Courts of States.

It would be apt to reproduce the relevant provisions of Code of civil procedure, Indian Evidence Act, Hindu Marriage Act,1955, Hindu Adoption and maintenance Act,1956 and governing the issues involved: –

Code of Civil Procedure

Section 13. When foreign judgment not conclusive. – A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except- (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of [India] in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in [India].

Section 14. Presumption as to foreign judgments. – The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

Indian Evidence Act:

Section 41. Relevancy of certain judgments in probate, etc., jurisdiction.-A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof- that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, [order or decree] declares it to have accrued to that person; [order or decree] declares it to have accrued to that person;” that any legal character which it takes away from any such person ceased at the time from which such judgment, 1[order or decree] declared that it had ceased or should cease; [order or decree] declared that it had ceased or should cease;” and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, 1[order or decree] declares that it had been or should be his property. [order or decree] declares that it had been or should be his property.

Hindu Marriage Act, 1955

Section 1. Short title and extent. – (1) This Act may be called the Hindu Marriage Act, 1955. (2) It extends to the whole of India except the State of Jammu and Kashmir and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

3. Definitions. -In this Act, unless the context otherwise requires, –

(b) “district court” means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act.

Section 10. Judicial separation.-1 [(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Section 11. Void marriages. -Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

Section 12. Voidable marriages.-(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:- [(a) that the marriage has not been consummated owing to the impotence of the respondent; or] (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 4 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent]; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied- (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 6 [the said ground].

13. Divorce.-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- 1 [(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] (ii) has ceased to be a Hindu by conversion to another religion; or [(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.-In this clause,- (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or] * * * * * (v) has * * * been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; *** * * * * * * [Explanation.-In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] [(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,- (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 1 [bestiality; or] [(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation. -This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]

13A. Alternate relief in divorce proceedings.-In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

13B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

14. No petition for divorce to be presented within one year of marriage.-(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, [unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage: Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the 1 [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after 2 [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed. (2) In disposing of any application under this section for leave to present a petition for divorce before the [expiration of one year] from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the [said one year].

Section 19. Court to which petition shall be presented.-Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction:- (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or [(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or] (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

Section 24. Maintenance pendente lite and expenses of proceedings.-Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable. 2 [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]

Section 25. Permanent alimony and maintenance.-(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall *** pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify, or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].

Section 27. Disposal of property. -In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

Hindu Adoptions and Maintenance Act, 1956

Section 18. Maintenance of wife – (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance –

(a) If he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her;

(b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) If he is suffering from a virulent form of leprosy;

(d) If he has any other wife living ; (e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying her living separately;

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Concept of Domicile

Before adverting to the issue, it is necessary to discuss the concept of domicile adopted by the courts in interpreting the word residence occurring in section 19 of Hindu Marriage Act,1955.

The plain dictionary meaning of the term ‘domicile’ is one’s legally recognized place of residence. Domicile has been described in Halsbury’s Laws of England, 4th edition, Volume 8, Paragraph 42 1) as the legal relationship between individual and a territory with a distinctive legal system which invokes that system as his personal law. Such residence must be coupled with the intention to make it a permanent home. A mere sojourn or temporary residence does not constitute domicile. Domicile is the condition in virtue whereof is ascribed to an individual the character of a citizen of some country on the basis of which the personal rights of the party that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy must depend. The object of ascertaining domicile is to determine which municipal law is applicable for regulating the rights and obligations of the parties. Thus, domicile signifies connection with a single system of territorial law. There are some general rules regarding domicile, and they are that-(i) nobody is without domicile, (ii) a person cannot have two domiciles, (iii) there is a presumption in favour of continuance of an existing domicile. There are two main classes of domicile; the domicile of origin which is communicated by operation of law to each person by birth i.e., domicile of his father or mother and domicile of choice which every person of full age is free to acquire in substitution for that which he at present possesses. The domicile of origin is received by operation of law at birth and for acquisition of a domicile of choice, one of the necessary conditions is the intention to remain there permanently. The domicile of origin is retained and cannot be divested until the acquisition of the domicile of choice. By merely leaving his country, even permanently, one will not, in the eye of law, lose one’s (his) domicile until he acquires a new one. So far married woman is concerned, the domicile of her husband is communicated to her immediately on marriage and it is necessarily and inevitably retained by her for the duration of her marriage. This means that she is incapable of acquiring a domicile of her choice during the subsistence of her marriage and that her domicile follows that of her husband’s domicile. It is thus a domicile of dependence or a matrimonial domicile. Thus, domicile is a test for determining personal law. (Louis De Readt v. Union of India, 1991(3) S.C.C. 554. To confer jurisdiction on the ground of plaintiff’s residence and entitle the decree to extraterritorial recognition, the residence must be actual and genuine and accompanied by an intent to make the State his home. A mere sojourn or temporary residence as distinguished from legal domicile is not sufficient in Central Bank of India, v. Ram Narain, [1955] 1 SCR 697, wherein it was pointed out that if a person leaves the country of his origin with undoubted intention of never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country. Thus, the proposition that the domicile of origin is retained until the acquisition of a domicile of choice is well established and does not admit of any exception.

“Domiciles are of three kinds, viz. domicile of origin, the domicile by operation of law and the domicile of choice. In the present case, we are concerned only with the domicile of origin and domicile of choice. Domicile of origin is not necessarily the place of birth. The birth of a child at a place during temporary absence of the parents from their domicile will not make the place of birth as the domicile of the child. In domicile of choice, one is abandoned, and another domicile is acquired but for that, the acquisition of another domicile is not sufficient. Domicile of origin prevails until not only another domicile is acquired but it must manifest intention of abandoning the domicile of origin. When we consider Section 1(2) of the Act, it is evident that the Act extends to the Hindus of whole of India except the State of Jammu and Kashmir and also applies to Hindus domiciled in India who are outside the said territory. In short, the Act, in our opinion, will apply to Hindus domiciled in India even if they reside outside India. If the requirement of domicile in India is omitted altogether, the Act shall have no nexus with India which shall render the Act vulnerable on the ground that extra-territorial operation has no nexus with India. In our opinion, this extra-territorial operation of law is saved not because of nexus with Hindus but Hindus domiciled in India. Sondur Gopal v. Sondur Rajini, 2013(7) SCC 426, Mandeep Kaur v. Dharam Lingam, (Punjab and Haryana) (DB), 2017(2) PLR 376.

Irretrievable breakdown of Marriage

It would also be necessary to consider, as to whether Irretrievable breakdown of Marriage can be considered as a valid ground for divorce for considering would satisfy the requirement of section 13 of Code of Civil Procedure, when such ground for grant of decree of divorce is alien and not provided under Hindu Marriage Act,1955. The reason is obvious because the divorce is mainly granted by the foreign courts because of Irretrievable or simply breakdown of Marriage. The answer is no, in view of pronouncement by Supreme Court of India. Irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under section 13 and granting divorce on this ground alone would amount to adding a clause therein by a judicial verdict which would amount to legislation by Court. V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC 337 Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379, Neelam Kumar v. Dayarani AIR 2011 Supreme Court 193.

Concept of Matrimonial Property

There is no concept of matrimonial property under the provisions of Indian laws. A woman can claim maintenance under Hindu Marriage Act,1955, Hindu Adoption and maintenance Act,1956, The Protection of Women from Domestic Violence Act 2005, as also under Section 125 of Code of Criminal procedure. However, the maintenance awarded under different enactments cannot be claimed consecutively, she would be entitled to the highest amount under any of the enactments. She can claim permanent alimony/maintenance at the time of passing any decree or at any time subsequent thereto under Hindu Marriage Act,1955. She can claim right to reside in the matrimonial home in which she resides under the Protection of Women from Domestic Violence Act 2005.The property in the name of each of spouse is their personal property. None of the spouse can claim the division or ownership of property owned and possessed by either of spouse. Even if one spouse purchases the property in the name of other spouse, still, it is the ownership, which is the deciding factor, as, whosoever is the title holder of property retains the same, because of the Prohibition of Benami Property Transactions Act, 1988. Section 4 of the Act,1988 explicitly prohibits the right to recover a property held benami, however there is exception to section 4 of the Act,1988 by virtue of Section 27 of Hindu Marriage Act,1950 provides for that in any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. A Division Bench of Punjab & Haryana High Court in Bhai Sher Jang Singh v. Smt. Virender Kaur, 1978 Hindu LR 703: observed as follows :-

“Section 27 of the Hindu Marriage Act empowers a Court while deciding a matrimonial dispute to also pass a decree in respect of property which money jointly belong to both the husband and the wife. This section at best provides a civil remedy to an aggrieved wife and does not in any way take away her right to file a criminal complaint if the property belonging to her is criminally misappropriated by her husband. Further The Punjab & Haryana High Court, Chandigarh in the case of Surinder Kaur v. Madan Gopal Singh, AIR 1980 Pb & Hry 334 explained the true import of Section 27 of the Act,1950 as:-

It would seem that the object of studding this section in the fabric of the Hindu Marriage Act,1950 is intended to pass consequential orders in relation to certain properties between the parties while dealing with any proceedings under the Act and to make provision of that nature In the decree to be passed in those proceedings. Obviously, an application for the purpose must be made before the proceedings terminate and the order can be made at the time of the passing of the decree. The sequence in which the said section appears in the statute is after the provision for the passage of decree in Section 23 of the Act and then to provide remedially as well in the terms of granting permanent alimony and maintenance under Section 25, deciding the custody of the children under Section 26, and to dis se of property jointly belonging to both the husband and the wife under Section 27, so as to ameliorate the lot of the spouse or spouses left bruised by a broken or a shattered marriage. It would also seem that Section 27 goes not envisage deciding any question as to the title of the prop involved therein or extending to all the properties of the spouses. It is couched in such a language so as to narrow its ambit within a small aphere. Analytically, the section pours out the following principles :-

(i) It must be a matrimonial proceeding pending under the Act before the Court and an application for disposal of property must be made before the decision of the Proceeding.

(ii) it is not incumbent on the Court to make provision in the decree with regard to disposal of property and it is left to its judicial discretion.

(iii) the provision so made it any, must be just and proper as the Court deems having regard to the adjustment of the equities between the parties and all surrounding material circumstances:

(iv) the order would envelope only that property which was presented at or about the time of the marriage, which means not only presented at the marriage but also at a time either prior to or after the marriage. That must be in close proximity of the time of the marriage and not to those made outside the extending limit of that time.

(v) the property so presented may either be to the wife or the husband or both; and

(vi) at the time the Court is required to exercise its discretion, the property may belong jointly to both the husband and the wife.

Now it is well understood that the word “belong” necessarily does not reflect title to the property in the sense of ownership. It only denotes connection with property and is a term connecting a person with his possessions. It appears to me that the property thus presented to the spouses within the afore-explained time limit, may fall jointly to belong to bath the husband and the wife, irrespective of the title in those properties to be vesting in one or the other or both. To give an earthly example, a saree presented by the husband or anyone else to the wife, may or may not involve transfer of title to the saree to the wife, but will belong to her exclusively and not jointly to both the husband and the wife, as the very nature of the garment so suggests Similarly, a suit presented to the husband in the same fashion would be exclusively belonging to the husband. Properties and articles presented from any source and to any one of them which by the very nature of the present, or by intention of the donor or by tacit agreement of spouses, has come to be jointly in use by both the husband and the wife, can well be said to belong jointly to both of them. An earthly example of such incident can be that of a set of dining table and chairs for joint user in the matrimonial home irrespective of the fact as to which spouse received it as a present within that allocated time. The said dining table and chairs would obviously be joint belong of both the husband and the wife and capable of being subjected to orders under Section 27 of the Act.

If any parity is permissible, it can be drawn with the principle underlying Section 25 of the Act. Each spouse’s earning capacity and other property, despite title thereto, is taken into account while equitably apportioning the income of both the spouses in such s manner so as to keep the less provided one adequately maintained at the cost of the other having regard to their post-marital-social status. In the same way Section 27 of the Act provides-for sharing of that property which the spouses received individually or collectively as presents, at or about the time of the marriage and which had come to be, as a way of life, in their joint use in their day to day living and thus `belongings’ for the purpose. If matrimony is disrupted, such jointly belonging articles would require the attention of the Court to be apportioned between the spouses as a measure of remedial relief.

In India, when Hindu marriage is by and large arranged by others than the spouses themselves, its breakage causes ripples in members of the society. It is one of the reasons why most of the judgments rendered by matrimonial Courts which fall squirrel within Section 41 of the Indian Evidence Act, are judgments in rem affecting the world at large. If a contested issue of disposal of property were to engage the attention of the matrimonial Court predominating other proceedings regarding which decree is sought, then the decision cannot be rendered with promptitude. The disposal of property as envisaged under Section 27 can only become part of the decree subject to other conditions fulfilling, if, it is capable of being settled without consuming much time so as not to entail delay in the passage of the decree. But if the Court finds itself confronted with regular contest from the tenor of pleadings the divergence of views and the anticipated quantity of evidence, it would well be within its right to refuse passing orders regarding disposal of property as a part of the decree. The disposal of property matter cannot outweigh the main proceedings before the Court regarding which it is required to pass a decree in the first place, the Court has to discern as to whether the presents received by either of the spouses from whatever source were in fact received end within the time earmarked in the section. Then in the second place the Court has to see as to which of the present or presents belong jointly to the spouses.

The Supreme Court of India in Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam decided on September 4, 1997, while dealing section 27 of The Hindu Marriage Act,1950 held as: “On a plain reading of the section. it becomes obvious the Matrimonial Court trying any proceedings under the Hindu Marriage Act, 1955, has the jurisdiction to make such provision in the decree as it deems just and proper with respect to nay property presented “at or bout the time of marriage” which may belong jointly to both the husband and wife. This section provides an alternate remedy to the wife so that she can recover the property, which is covered by the Section, by including it in the decree in the matrimonial proceedings, without having to take resources to the filling of a separate Civil Suit and avoid further litigation”.

Further Punjab & Haryana High court, Chandigarh in Deepak v. Rajni, Civil Revision No.7127 of 2018, decided on December 13, 2018 held as: Firstly, Section 27 of the Act is only an enabling provision where by the Court in any proceedings under the Act may make any provision in the decree with regard to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. It does not specifically oust the jurisdiction of the Civil Court in that regard. Hence, it can be considered as an additional remedy available to the aggrieved. Secondly, Section 27 has been held to be applicable only to the property contemplated therein i.e., any property presented, at or about the time of marriage, which jointly belongs to both the husband and the wife. Istridhan being the absolute and exclusive ownership of the wife, it has been held that no order under Section 27 of the Act can be passed in regard thereto.

Interpretation of Section 13 of Code of Civil Procedure.

R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, (AIR 1963 Supreme Court 1), the Supreme Court pointed out that Section 13 of Code of Civil Procedure incorporates a branch of the principle of res judicata. However, the Supreme Court also clarified that though both rules are founded upon the principle of sanctity of judgments competently rendered, the rule of conclusiveness of a foreign judgment as enacted in Section 13 CPC is somewhat different in its operation from the rule of res judicata incorporated in Section 11 CPC. But the rule of conclusiveness of a foreign judgment applies only to matters directly adjudicated upon and hence, what is conclusive is the judgment. While the competence of a Court, for the application of the rule of res judicata, is determined strictly by the Municipal Law, the competence of the foreign court is determined by the dual test of competence by the laws of the State, in which the court functions as well as in an international sense. To apply the rule of res judicata, the adjudication should have been in a former suit. But, for the application of rule of conclusiveness, it is not necessary that the judgment must have been delivered by the foreign court, before the institution of the suit in which the plea is set up. Again, what is conclusive in respect of a foreign judgment is only the final adjudication and not the reasons. More importantly, the Supreme Court held in R. Viswanathan that in adjudging the competence of the foreign court, it would not be open to the Indian court to ignore the course of practice in that court, even if it be not strictly warranted by the procedural law of that State. Whether the procedure of the foreign court, which does not offend natural justice is valid or not, is for the foreign court to decide and not by the court in which the foreign judgment is pleaded as conclusive.

Smt. Satya v. Teja Singh, (SC), 1975(1) SCC 120, In determining whether a divorce decree will be recognized in another jurisdiction as a matter of comity, public policy and good morals may be considered. No country is bound by comity to give effect in its courts to divorce laws of another country which are repugnant to its own laws and public policy. Thus, where a “mail-order divorce” granted by a Mexican court was not based on jurisdictional finding of domicile, the decree was held to have no extraterritorial effect in New Jersey, State v. Najjar, 2 NJ 208. American courts generally abhor the collusive Mexican mail-order divorces and refuse to recognize them, Langner v. Langner, 39 NYS 2d 918. Mail-order divorces are obtained by correspondence by a spouse not domiciled in Mexico. Latey in his well-known book on divorce says that “The facilities afforded by the Mexican courts to grant divorces to all and sundry whatsoever their nationality or domicile have become even more notorious than those in Reno, Nevada”. (“The Law and Practice in Divorce and Matrimonial Causes”, 15th Ed. (1973) p. 461.) Recognition is denied to such decrees as a matter of public policy. Foreign decrees of divorce including decrees of sister States have been either accorded recognition or have been treated as invalid, depending on the circumstances of each particular case. But if a decree of divorce is to be accorded full faith and credit in the courts of another jurisdiction it is necessary that the court granting the decree has jurisdiction over the proceedings. A decree of divorce is thus treated as a conclusive adjudication of all matters in controversy except the jurisdictional facts on which it is founded. Domicile is such a jurisdictional fact. A foreign divorce decree is therefore subject to collateral attack for lack of jurisdiction even where the decree contains the findings or recitals of jurisdictional facts. Section 13(A)) of the Code of Civil Procedure, 1908 makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon except “where it has not been pronounced by a court of competent jurisdiction.

Surinder Kaur Sandhu v. Harbax Singh Sandhu, AIR 1984 Supreme Court 1224, The modern theory of Conflict of Laws recognizes and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. The jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstances as to when the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offspring of marriage.

Y. Narasimha Rao v. Y. Venkata Lakshmi, (SC), 1993(1) SCC 451, Under Section 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “Code”), a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if (a) it has not been pronounced by a court of competent jurisdiction; (b) it has not been given on the merits of the case; (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice; (e) it is obtained by fraud; (f) it sustains a claim founded on a breach of any law in force in India. The Supreme Court declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of Civil Procedure Code has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under :-

We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life. Thus, the Supreme Court of India interpreted the various clauses of Section 13 of Code of Civil Procedure as: Clause (a) of Section 13 states that a foreign judgment shall not be recognized if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognizes as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in section 41 of the Indian Evidence Act has also to be construed likewise. Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognize such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate. The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognize the law of this country in cases in which such law is applicable, the judgment will not be recognized by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognized by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country. Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilized system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of Audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognized. This jurisdiction principle is also recognized by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognized only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied. The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognize a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh, (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts. From the aforesaid discussion the following rule can be deduced for recognizing a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.

The exceptions to this rule may be as follows:-

(i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually, and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married:

(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married.;

(iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. Furthermore, the decree should not be affected by any of the circumstances enumerated in Clauses (a) to (f) of Section 13 CPC The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes do allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law which determines the jurisdiction and judges the merits of the case.

Deepalakshmi v. K. Murugesh (Madras), 2010(4) RCR 956, once the parties have selected H.M. Act [Hindu Marriage Act] as their personal law, they cannot abdicate the same at their free will or as per exigencies of situation or according to their whims and fancies. The time at which the domicile is to be determined is when the parties tie nuptial knot under the Hindu Marriage Act and not the date when an application is made for matrimonial reliefs. As a natural corollary thereof, even if a party to the matrimonial petition establishes that after marriage he acquired domicile of some other country, it would not take away the jurisdiction of the Court in India if on the date of the marriage he was domiciled in India.

Smt. Hemavathi Shivashankar v. Dr. Tumkur S. Shivashankar (Karnataka), 2014(12) RCR 844, It was present to the mind of the foreign court that there was a personal law which governed the parties, and the foreign court could not have assumed jurisdiction in the light of Section 19 of the 1955 Act. The court below was clearly wrong in holding that the petition for divorce could have been filed before the foreign court. If further proceedings had stopped at that stage, it was clearly a case where the decree of divorce granted by the foreign court could have been held not binding on the appellant. Therefore, the foreign court did lack jurisdiction as the parties were clearly governed by the provisions of the 1955 Act and therefore, the marriage, to which the 1955 Act applied, could not have been dissolved by a court without jurisdiction, notwithstanding the local law under which the proceedings may have been instituted. The judgment of the foreign court was also violative of clause (a) of Section 13 of the Civil Procedure Code, as the foreign court cannot be considered as a court of competent jurisdiction, since the law under which the parties were married could not recognize it as a competent jurisdictional court to entertain the matrimonial dispute in terms of clause (a) of 13 of the Civil Procedure Code.

Conclusion:

Once the parties are Hindus & their marriage was solemnized according to the Hindu rites. Their matrimonial dispute or relationship is, therefore, governable by the provisions of Hindu Marriage Act,1955. Once the parties or either of the party did not submit to the jurisdiction of the Foreign Court either voluntarily or unconditionally and neither did consent for the grant of divorce in the Foreign Court, the foreign court has no jurisdiction to entertain and try the divorce petition and is neither recognizable nor enforceable in India. The foreign court can pass a valid decree of Divorce, when the matrimonial chord between the parties is governed by the provisions of Hindu Marriage Act,1955 & the decree passed by a foreign court is recognized by the Court in India, as being conclusive, however, subject to fulfilment of rigor of section 13 of Code of Civil procedure, as interpreted by the Supreme Court of India in Y. Narasimha Rao v. Y. Venkata Lakshmi. There is no concept of matrimonial property in India except right of maintenance, right to reside in matrimonial home and to claim in the proceeding under Hindu Marriage Act,1950 from the court to make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

Purpose of the Rent Act:

The East Punjab Rent Restrictions Act 1949 is a complete legislation in itself which lays down complete procedure for adjudication of disputes between landlords and tenant and provides for classification of buildings as residential, non residential, scheduled as well as rented land. It further lays down the exhaustive procedure for protection of tenants from unscrupulous landlords, but also lays down detailed and exhaustive grounds under Section 13, Section 13-A and Section 13-B whereby the landlord could seek the eviction of his tenant.

Grounds of Eviction enumerated in Sec: 13 of the Rent Act:

A) Arrears of rent

Note : In Haryana Rent Act, Arrears of Rent can be claimed only for last three years whereas there is no such embargo in Punjab Rent Act.

Main Judgment on Non-Payment of Rent:

“Rakesh Wadhawan v. M/s Jagdamba Industrial Corporation & Others” – 2002(1) R.C.R (Rent) 514

B) Subletting

C) Change of User

D) Material Impairment

E) Nuisance

F) Cease to Occupy for continuous period of 4 month without sufficient cause

G) Bonafide Personal Necessity

Earlier a landlord could seek eviction of his tenant only from a residential building in cases of bonafide need but subsequently even the non residential buildings came within the preview of bonafide need.

“Harbilas Rai Bansal v. The State of Punjab & Anr” (AIR 1996 SC 857)

Two basic mandatory Ingredients required to be pleaded in cases of Bonafide Personal Necessity:

13(3)(a)(i)

(b) he is not occupying another residential building in the urban area concerned

(c) he has not vacated such a building without sufficient cause after the commencement of the Act, in the said Urban Area. “Banke Ram v. Smt. Sarasti Devi” – AIR 1977 P&H 158 (Full Bench)

However the strict proposition of pleading of the ingredients in an ejectment petition has been diluted to a larger extent by various subsequent judicial pronouncements.

“Gurbaj Singh v. Parshotam Singh” – 2011(2) R.C.R (Rent) 349.

Section 13(A)

Special Right given to Specified Landlords defined under Section 2(hh) (Government Employees) for seeking summary Eviction of their tenants.

Section 13(B)

Special Right given to N.R.I’s defined under Section 2(dd) for seeking summary Eviction of their tenants.

Main Judgment : “Baldev Singh Bajwa v. Mohnish Saini” – 2005(12) SCC 778

Section 18-A

Provides for procedure of summary disposal of cases under Section 13(A) and Section 13(B).

Under Section 18-A(8), there is no provision of filling appeal before Ld. Appellate Authority, only revision can be filed before the Hon’ble High Court in cases filed under 13-A and 13-B.

Section 18-A lays down strict procedure for obtaining leave to contest in cases filed under Section 13-A and Section 13-B.

Summons issued in such cases have to be as per “Schedule II” making Leave to defend to be filed mandatory within a period of 15 days from the date of service, failing which eviction order is to be passed automatically.

Important Judgments under Section 18-A:

“Anwar Ali v. Gian Kaur” – 2011(2) R.C.R (Rent) 604 (Full Bench)

“Om Parkash v. Ashwani Kumar Bassi” – 2010(9) SCC 183.

“Precision Steel and Engineering Works v. Prem Deva Niranjan Dea Tayal” – 1982(3) SCC 270.

Note:

There is no special provision of N.R.I’s in Haryana Rent Act.

The tenancy laws in India are considered as “pro-tenant” but due to intervention of our judiciary through various landmark judgments, a sort of balance has been created upholding the rights of landlords in cases related to the eviction of tenants.

Rent controller not to be treated as civil courts but persona designata, under the Act, who are free to design their own procedure, and strict principles of Code of Civil Procedure are not applicable to them.

Powers of Appeal and Revision are provided in Section 15:

Section 15(2) – Appeal

Section 15(5) – Revision before the Hon’ble High Court.

Main Judgment on Revisional Jurisdiction:

“Hindustan Petroleum Corporation Limited v. Dilbahar Singh” – 2014(9) SCC 78 – Five Judges Bench.

Appellate Authority under the Rent Act cannot Remand the matter to the Rent Controller but can either call for the report or examine on its own.

Raghu Nath v.Romesh Duggal,(P&H) (D.B.) – 1980 AIR (PB) 188

Concept of Mesne Profits:

The concept of Mesne Profits was introduced by the Hon’ble Apex Court in the case titled as “M/s. Atma Ram Properties (P) Ltd. v. M/s. Federal Motors Pvt. Ltd” reported as 2005(1) SCC 705.

The Hon’ble Apex Court observed that the tenant having suffered a decree or order for eviction may continue his fight before the superior forum but, on the termination of the proceedings and the decree or order of eviction first passed having been maintained, the tenancy would stand terminated with effect from the date of the decree passed by the lower forum. That the appellate Court has power to put the tenant-appellant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. With the passing of the decree for eviction, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree.

Important Judgments on the issue of Mesne Profits:

• M/s. Atma Ram Properties (P) Ltd. v. M/s. Federal Motors Pvt. Ltd” – 2005(1) SCC 705.

• Anderson Wright & Co v. Amarnath Roy 2005(1) RCR (Rent) 624

• State of Maharashtra v. M/s Super Max International Pvt. Ltd. – 2009(2) RCR (Rent) 246

• Mohammad Ahmad and Another v. Atma Ram Chauhan and others – 2011(1) R.C.R.(Rent) 394.

• Angoori Devi and others v. Smt. Satya Bhama – 2016(5) R.C.R (Civil) 1043.

Mode of Determination:

“Surinder Kumar v. Rattan Lal” – 2006 (2) RCR (Rent) 26

New Rent Act: Punjab Rent Act, 1995

That with the passage of time the East Punjab Rent Restriction Act 1949 has also been replaced by the Punjab Rent Act of 1995, which has come into force w.e.f. 30.11.2013 and as per section 75 of the 1995 Act, the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act No. III of 1949), stands repealed provided there are certain exceptions as enumerated in Section 75.

Features of the Punjab Rent Act 1995-

(i) The Act provides for the regulation of rents, repairs and maintenance and eviction relating to premises and matters connected therewith in the State of Punjab. The Act applies only to the tenancies which have been created after the commencement of the new Act (except in case of NRI landlord).

(ii) Section 3 provides where the operation of the Act is exempted. Further, under section 3(2), contractual nonresidential tenancies will be governed by the terms of the contract during the subsistence of the contract.

(iii) Section 4 provides all new tenancies after the commencement of the Act are required to be through a registered agreement.

Important Judgment :

M/s A.R Ventures v. M/s Roop Square Pvt. Ltd. – 2021(2) R.C.R (Rent) 276.

(iv) The right of inheritance of tenancy of residential premises is governed by section 5 which lays down that inheritance is now limited to 10 years from the death of the tenant and is restricted to the heirs who are dependent upon and residing with the tenant, who have no other alternative accommodation. In the case of nonresidential tenancies, property is required to be vacated within one year of death of the tenant or dissolution of the tenant firm as the case may be.

(v) As per section 6 the agreed rent shall be increased by five per cent of the last rent for two years and third year increase shall be based upon the increase in the Consumer Price index over the corresponding three years.

(vi) The Act for the first time lays down the duties and obligations of the landlord and the tenant as stated in Section 17 and 18.

(vii) The scope of ejectment of the tenant has been widened with the introduction of new grounds of eviction under sections 20 and 26 which provide for the grounds of ejectment as follows:

(a) Arrears of rent

(b) Change of user

(c) Cease to occupy the premises

(d) Premises having become unfit and unsafe (with a right of election to re-enter on reconstruction)

(e to h) Premises required by landlord for immediate demolition or for development works or repairs or additions with a right to re-entry by tenant.

(i) Availability of alternate accommodation with tenant or family member

(j) The tenant has ceased to be an employee of the landlord

(k) Substantial damage or alteration by the tenant

(l) Conviction of tenant for nuisance or annoyance or immoral or illegal activity

(m) Breach of the condition by the tenant imposed on the landlord by the Government

(n) Denial of the ownership of landlord, when such denial is not bona fide

(o) person in occupation of premises failed to prove he is bonafide tenant.

(p) Failing to vacate on the agreed date under an agreement

(q) Personal necessity of the landlord or any member of his family if the landlord or such person has no other reasonable suitable accommodation, after 3 years of purchase or transfer.

(viii) Section 21 to section 24 enumerates the special category of landlords entitled to immediate ejectment of premises let out by landlord, spouse or dependent son or daughter as under-

(a) Landlord whose allotment has been cancelled by Government agencies in case of residential premises

(b) A retiring member of armed forces or dependent of a martyr

(c) Central and State Government employees

(d) Widow

(e) handicapped persons,

(f) old persons,

(g) freedom fighters, his widow or dependent son or daughter

(h) non-resident Indians

(ix) Section 24(3) dealing with NRI landlords the term used is “returns to India for permanent residence“. The mandatory ownership condition of 5 years before filling of Eviction Petition by NRI as well as bar of getting only one building vacated is also not there as it was mandated earlier under Rent Act of 1949.

(x) Under Punjab Rent Act, 1995, the tenant has been provided multiple remedies which will delay the eviction process. E.g. Section 38(7)(e) provide that tenant will be entitled to file a review petition within ten days of the rejection of the application for leave to defend. Then after the dismissal of the review, tenant can file the appeal under Section 50 of the Punjab Rent Act, 1995 even in cases of summary nature.

(xi) Partial ejectment has been permitted pursuant to the consent of the landlord under section 20(3)

(xii) Under section 32 special provisions have been incorporated for recovery of possession in respect of corporate bodies or a public institution as landlord.

Tribunals Abolished by the Division Bench of our Hon’ble High Court which were created earlier:

Initially, the Act provided that the Rent Authority/tribunal will have the power to determine the dispute under the new Act. However, after a PIL titled as Bar council of Punjab and Haryana v. State of Punjab bearing CWP No: 25507 of 2013 filed in the High Court, the said creation of Tribunals were washed off.

Section 67 provides for penalties for contravention of provisions of the Act and for the first time the Act also provides penalty in form of fine and imprisonment for sub letting.

Section 75 provides that all cases in respect of the premises, other than owned by a non-resident Indian, let out prior to the commencement of this Act shall be governed and disposed of in accordance with the provisions of the old Act so repealed.

Important Judgment Interpreting provisions of East Punjab Urban Rent Restriction Act, 1949 and Punjab Rent Act, 1995 in cases of N.R.I’s (Upheld by Hon’ble Apex Court),

“Krishan Kumar v. Kamla Devi” 2016(1) R.C.R. (Rent) 525.

After passing out, in early 1980s, from awesome campus of Mahindra College Patiala, on completion of my graduation in English Literature, I thought, joining M.A. (English) was the only and the most natural way to go forward, not only because I thought it was my natural calling but also because I thought it would see me through to the Central Civil Services. My father, then a judicial officer, however, persuaded me to join the LLB course, for he thought it offered better career prospects and I, in the end, very reluctantly agreed to fall in line.

Just as we were nearing the completion of LLB, everybody worriedly reflected upon, “what next”. As far as I remember no one, enthusiastically planned on setting up his own law practice. I too followed the then `National hobby’ and started preparing for the Civil Services. As we went along, we often heard of some college mate, upon completing his MBA, joining a well-known private company on a “handsome package” and we would think, wow! Some went to banking and some to public sector undertakings and seemingly, the more accomplished amongst us, cleared the Civil Services, leaving us envious, as we thought, “wow! A regular monthly salary, with power & influence to boot as well, how damn lucky”. Eventually, I decided to give up chasing that elusive dream of joining civil services and plunged into the Law Practice. Soon I shifted to Chandigarh and started my own practice at Punjab & Haryana High Court in the right earnest. It is as a lawyer you realize what `uncertainty in life’ really means. As once the Hon’ble Mr. Justice G.S. Singhivi remarked in court that a lawyer often does not know how and when his next meal is going to come from. However, like many before me, I too realized soon that eventually a lawyer’s persistence and sheer hard work starts bearing fruit. It gradually dawns upon him that he on account of his dogged persistence is not only able to make more money than the most `handsomest of the packages’ that some of his erstwhile peers are getting but also on account of being able to get judicial “decrees” and the “writs” issued by the process of law, is able to exert a considerable amount of influence and respect in society. Those amongst the lawyers who could move up to the `Bench’, needless to say, outshone all services, in the arena of `power’, influence and respect.

I am however, only now beginning to realize, that the best was still yet to come, especially for those who steadfastly kept pulling themselves along the path of the legal practice. Almost suddenly, all those college mates who had joined any kind of services, started staring at the impending retirement and then there actually were retirements all around but the lawyer within us (the lawyers) was telling us, “what retirement? I have just started and all that tremendous knowledge and experience that I have gained over the years will continue to be put to their best use and cannot be allowed to go waste, God willing, not for the next, may be, twenty years”. Quite clearly the lawyer is, in fact, the proverbial tortoise.