Validity of Power of Attorney After Death of Donor/Donee of Power

This is a general question that often arises in relation to the validity of a Power of Attorney. The question is whether Power of Attorney (POA) is valid after the death of person who executor/executant it, i.e., after the death of the donor/donee of POA. The answer to this question would depend upon the facts of each case. But, generally speaking, a Power of Attorney becomes invalid after the death of the donor / principal/donee/agent. However, if it is an irrevocable Power of Attorney, for valuable consideration, creating an agency wherein the donee / agent has an interest in the subject-matter property, then such Power of Attorney may be valid even after the death of the donor / principal.

Though the Powers of Attorney Act, 1882, defines what is “Power of Attorney”, it is merely an inclusive definition. Section 1A of the said Act says that “Powers-of-Attorney” include any instrument empowering a specified person to act for and in the name of the person executing it.

Basically, a POA holder is an “agent” of the person executing the POA, as defined under Section 182 of the Contract Act, 1872, which is reproduced as under: “182. “Agent” and “principal” defined.—An “agent” is a person employed to do any act for another, or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the “principal”.”

Under Section 2 of the Powers of Attorney Act, the donee of a power-of-attorney is empowered to execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.

The POA holder has thus the power to affect the position of his principal by doing acts on his behalf.

While the Powers of Attorney Act is silent on the issue of termination of POA, the Contract Act has provisions with regard to termination of “agency”. Since POA is also basically an agency, the provisions of the Contract Act would be applicable to the termination of POA.

Section 201 of the Contract Act lays down how an agency can be terminated: “201. Termination of agency.—An agency is terminated by the principal revoking his authority; or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors.”

It should thus be clear that, generally speaking, an agency is terminated by the death of either the principal or the agent. Accordingly, generally speaking, a Power of Attorney is terminated by the death of either the donor of POA or of the donee of the POA.

However, Section 202 of the Contract Act lays down an exception to the above general rule of termination of agency:

“202. Termination of agency, where agent has an interest in subject-matter.—Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.

Illustrations

(a) A gives authority to B to sell A’s land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.

(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton and desires B to sell the cotton, and to repay himself, out of the price, the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death.”

Thus, where the agent himself has an interest in the property which forms the subject-matter of the agency, such agency cannot be terminated to the prejudice of such interest in the absence of an express contract. This situation will generally arise when the agent acquires such an interest in the subject-matter property for some valuable consideration paid or payable to the principal. In such situations, the agency may be irrevocable. However, if there is an express contract between the agent and the principal that even in such a situation, the agency may be terminated (subject to conditions, if any), in that case such agency may also be terminable.

Accordingly, if there is an irrevocable Power of Attorney (POA) creating an interest in favour of the donee  of the POA in respect of the property which forms the subject-matter of the POA, which is generally for some valuable consideration paid or payable to the donor of the POA, then such POA may not be terminated even after the death of the donor of POA and may continue to be valid. It may be binding on the heirs / successors of the donor of POA in these circumstances.

Barring the above exception, generally speaking, a POA gets terminated by the death of either the donor or of the donee of the POA.

 

Negotiable Instrument Act Ordinance 2015 is Retrospective

In the matter of M/S BRIDGESTONE INDIA PVT. LTD. Vs INDERPAL SINGH & Ors,Supreme Court has held that  Section 142(2)(a), of the Negotiable Instrument Act,1881  amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under Section 138 of the Negotiable Instruments Act, inter alia in the territorial jurisdiction of the Court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account).

The facts of the case are that a cheuqe No.1950, drawn on the Union Bank of India,Chandigarh, was issued by Inderpal Singh to the M/s Bridgestone India Pvt.Ltd. The cheque was inthe sum of Rs.26,958/-. M/s Bridgestone India Pvt.Ltd. presented the above cheque at the IDBI Bank in Indore. Bridgestone India Pvt.Ltd.received intimation of its being dishonoured on account of “…exceeds arrangement…” on 04.08.2006 at Indore. Bridgestone India Pvt.Ltd.issued a legal notice on 26.08.2006, which was served on Inderpal Singh on 06.09.2006,demanding the amount depicted in the cheque. Bridgestone India Pvt.Ltd.informed Inderpal, that he would be compelled to initiate proceedings under Section 138 of the Negotiable Instruments Act, 1881, if payment was not made by the respondent within 15 days from the date of receipt of the legal notice. Consequent upon the issuance of the aforementioned legal notice wherein Inderpal was required to reimburse the cheuqe amount to Bridgestone India Pvt.Ltd., and Inderpal having failed to discharge his obligation, proceedings were initiated by Bridgestone India Pvt.Ltd.on 13.10.2006 in the Court of the Judicial Magistrate, First Class, Indore, under Section 138 of the Negotiable Instruments Act, 1881. Inderpal Singh, preferred an application before the Judicial Magistrate, First Class, Indore,Madhya Pradesh, under Section 177 of the Criminal Procedure Code,contesting the territorial jurisdiction with respect to the above cheque drawn on the Union Bank of India, Chandigarh. The prayer made by Inderpal, that the Judicial Magistrate, First Class,Indore, did not have the jurisdiction to entertain the proceedings initiated by the appellant – M/s Bridgestone Indian Pvt.Ltd. was declined on 02.06.2009. The Judicial Magistrate, First Class, Indore, relied on the judgment rendered by this Court in K.Bhaskaran vs. Sankaran Vaidhyan Balan and another, AIR 1999 SC 3762, to record a finding in favour of Inderpal. Dissatisfied with the order passed by the Judicial Magistrate, First Class,Indore, dated 02.06.2009,Inderpal Singh preferred a petition under Section 482 of the Criminal Procedure Code, in the High Court of Madhya Pradesh before its Indore Bench. Having examined the controversy in hand and keeping in mind the fact, that a number of documents were presented by Inderpal Singh during the course of hearing before the High Court, by an order dated 03.12.2009, the petition filed by the Inderpal was disposed of, by remitting the case to the Judicial Magistrate, First Class, Indore, requiring him to pass a fresh order after taking into consideration the additional documents relied upon, and the judgments cited before the High Court. The Judicial Magistrate, First Class, Indore, yet again,by an order dated 11.01.2010 held, that he had the territorial jurisdiction to adjudicate upon the controversy raised by the appellant – M/s Bridgestone India Pvt.Ltd. under Section 138 of the Negotiable Instruments Act, 1881. The decision rendered by the Judicial Magistrate, First Class, Indore, was again assailed by Inderpal in yet another petition filed by him under Section 482 of the Criminal Procedure Code, in the High Court of Madhya Pradesh before its Indore Bench. The High Court accepted the prayer made by Inderpal Singh by holding, that the jurisdiction lay only before the Court wherein the original drawee bank was located, namely, at Chandigarh, where-from Inderpal had issued the concerned cheque bearing No.1950, drawn on the Union Bank of India, Chandigarh.Dissatisfied with the order passed by the High Court of Madhya Pradesh, dated 05.05.2011, M/s Bridgestone India Pvt.Ltd. has approached this Court through the instant appeal.During the course of hearing, learned counsel for the appellant cited the decision rendered by a three-Judge Bench of this Court in Dashrath Rupsingh Rathod vs. State of Maharashtra and another, (2014) 9 SCC 129, and pointedly invited our attention to the conclusions drawn by this Court in paragraph 58, which is extracted hereunder:“58.To sum up:58.1 An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank.58.2 Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section 138.58.3The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if(a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue.(b) If the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque, and (c) If the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice.58.4.The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act.58.5 The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of cognizance by the court till such time cause of action in terms of clause (c) of proviso accrues to the complainant.58.6 Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured.58.7The general rule stipulated under Section 177CrPC applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof.” In view of the decision rendered by this Court in Dashrath Rupsingh Rathod’s case, it is apparent, that the impugned order dated 05.05.2011, passed by the High Court of Madhya Pradesh, Bench at Indore,  was wholly justified In order to overcome the legal position declared by this Court in Dashrath Rupsingh Rathod’s case, learned counsel for the appellant has drawn our attention to the Negotiable Instruments(Amendment) Second Ordinance, 2015 (hereinafter referred to as `the Ordinance’). A perusal of Section 1(2) thereof reveals, that the Ordinance would be deemed to have come into force with effect from 15.06.2015. It is therefore pointed out to us, that the Negotiable Instruments (Amendment) Second Ordinance, 2015 is in force. Our attention was then invited to Section 3 thereof, whereby, the original Section 142 of the Negotiable Instruments Act, 1881, came to be amended, and also, Section 4 thereof, whereby, Section 142A was inserted into the Negotiable Instruments Act. Sections 3 and 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015 are being extracted hereunder:“3. In the principal Act, section 142 shall be numbered as sub-section (1) thereof and after sub-section(1) as so numbered, the following sub-section shall be inserted, namely:-(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,-(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated;or (b) if the cheque is presented for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.Explanation– For the purposes of clause(a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.”4. In the principal Act, after section 142, the following section shall be inserted, namely:-142A. (1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment,decree, order or directions of any court, all cases transferred to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable  Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Ordinance, as if that sub-section had been in force at all material times.(2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1),where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1), and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court.(3) If, on the date of the commencement of this Ordinance, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of section 142,as amended by the Negotiable Instruments(Amendment) Ordinance, 2015, before which the first case was filed and is pending, as if that sub-section had been in force at all material times.”(Emphasis is ours)A perusal of the amended Section 142(2), extracted above, leaves no room for any doubt, specially in view of the explanation thereunder, that with reference to an offence under Section 138 of the Negotiable Instruments Act, 1881, the place where a cheque is delivered for collection i.e. the  branch of the bank of the payee or holder in due course, where the drawee maintains an account,would be determinative of the place of territorial jurisdiction.It is, however, imperative for the present controversy,that the appellant overcomes the legal position declared by this Court, as well as, the provisions of the Code of Criminal Procedure. Insofar as the instant aspect of the matter is concerned, a reference may be made to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142A was inserted into the Negotiable Instruments Act. A perusal of Sub-section (1) thereof leaves no room for any doubt, that insofar as the offence under Section 138 of the Negotiable Instruments Act is concerned, on the issue of jurisdiction, the provisions of the Code of Criminal Procedure, 1973, would have to give way to the provisions of the instant enactment on account of the non-obstante clause in sub-section (1) of Section 142A. Likewise, any judgment, decree, order or direction issued by a Court would have no effect insofar as the territorial jurisdiction for initiating proceedings under Section 138 of the Negotiable Instruments Act is concerned. In the above view of the matter, we are satisfied, that the judgment rendered by this Court in Dashrath Rupsingh Rathod’s case would also not non-suit the appellant for the relief claimed.Supreme Court stated that it is in complete agreement with the contention advanced at the hands of the learned counsel for the appellant. Supreme Court stated that they are satisfied, that Section 142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under Section 138 of the Negotiable Instruments Act, inter alia in the territorial jurisdiction of the Court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account). Supreme Court also stated that based on Section 142A(1) to the effect, that the judgment rendered by this Court in Dashrath Rupsingh Rathod’s case,would not stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonor of the cheque in the present case arises. Since cheque No.1950, in the sum of Rs.26,958/-, drawn on the Union Bank of India, Chandigarh, dated 02.05.2006, was presented for encashment at the IDBI Bank, Indore, which intimated its dishonor to the appellant on 04.08.2006, we are of the view that the Judicial Magistrate, First Class, Indore, would have the territorial jurisdiction to take cognizance of the proceedings initiated by the appellant under Section 138 of the Negotiable Instruments Act, 1881, after the promulgation of the Negotiable Instruments (Amendment) Second Ordinance, 2015. The words “…as if that sub-section had been in force at all material times…”used with reference to Section 142(2), in Section 142A(1) gives retrospectivity to the provision.Supreme Court allowed the appeal and the impugned order passed by the High Court of Madhya Pradesh, by its Indore Bench, dated 05.05.2011,was set aside. The parties are directed to appear before the Judicial Magistrate, First Class, Indore, on 15.01.2016. In case the complaint filed by the Bridgestone India Private Limited has been returned, it shall be re-presented beforethe Judicial Magistrate, First Class, Indore, Madhya Pradesh, on the date of appearance indicated hereinabove.

 

 

 

 

 

 

 

 

If The Compensation Awarded Is Just & Fair By Applying Tests & Guidelines,Then It Is Not Proper To Interfere Under Article 136 Of The Constitution

Supreme Court in Swapna Naik vs Oriental Insurance Company Limited held that in case the eventual figure of award of compensation payable to the claimant by applying test & guidelines appears to be just and reasonable then it is not proper to interfere the appellete jurisdiction of Supreme Court under Article 136 of the Constitution.

The relevant fact of the case is that on 16th december 2012,Mathurnanada Nayak,a USA resident working as a Senior Information System Analyst,in California USA,came to India on vacation,was travelling along with his mother Jita Nayakfrom cuttuck by a car,collided with a truck,met an accident and Mathurnanda Nayak,Jita Nayak along with the driver of the car died.

The legal heirs of Mathurnanda Nayak(his wife and children) filed two seperate claims for compensation under section 166 of Motor Vehicle Act,1988 against the vehicle owner and Oriental Insurance Company Ltd-the insurer of the truck.The Motar Accident Claim Tribunal held that the accident was caused due to rash & negligent driving of the truck driver,the tribunal further stated that since the annual income of the deceased was Rs.43,68,624 further added multiplier of 15 and further deducted 1/3 towards expenses and finally awarded Rs 4,36,95,740/-to the heirs of the deceased Mathurnanda Nayak and further directed the insurance company to pay interest at the rate of 7.5% from the date of application.Further for the death of Jita Nayak Tribunal awarded a sum of Rs. 1,29,500/-by applying multiplier of 5 along with interest at rate of 7.5% p.a.

The Insurance Company challenged the order in the high court seeking further reduction in the compensation awarded while claimants filed for enhancing the compensation.

The High Court partly allowed the appeal filed by the insurance company & reduced the compensation amount of Rs.4,36,95,740/- to Rs.3,75,00,000 stating that nothing was deducted towards income tax from the salary of the deceased.The High Court further dismissed the claimants appeal for enhancement of the compensation.

Challenging the Judgement of the High Court the Insurance Company filed an appeal in the Supreme Court seeking further reduction in the award of the compensation while claimant filed appeal seeking further enhancement in the award of the compensation.

The Supreme Court held that there is no ground to interfere with the impugned order of High Court after considering the totality of the facts and circumstances of the case and the concurrent findings of the two courts and on material issues such as the determination of annual income of the deceased, his age, the number of dependents etc. The Hon’ble Supreme Court held that these findings, apart from being concurrent, cannot be said to be, in any way, arbitrary and nor they result in awarding a bonanza or a windfall to the claimants so as to call for further reduction in the compensation awarded by the High Court.The Supreme Court held that what has been eventually awarded to the claimants by the High Court appears to be just and reasonable compensation within the meaning of Section 166 of the Act and there does not appear any good ground for further enhancement under any of the heads including under the head of future prospects as claimed by the claimants in their appeal and nor any case is made out for further reduction by applying the lesser multiplier or to make further deduction in the salary component of the deceased as claimed by the Insurance Company.

The Hon’ble Supreme Court accordingly dismissed the appeals and, in consequence, uphold the order of the High Court calling no interference therein.

 

The first appeal must cover all important questions involved in the case and they should not be general and vague

Supreme Court in Laliteshwar Prasad Singh & Ors vs S.P.Srivastava stated that when appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court; expression of general agreement with reasons given by trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court is erroneous.

The appeal arises out of the judgment of High Court of Patna in First Appeal No. 230 of 2007 dated 30.07.2007 reversing the judgment of the trial court and thereby decreeing Shailendra Prasad Srivastava suit for declaration of title.He filed a suit praying for declaration of his title with respect to suit property in Khasra No. 123, 124, 269, 274, 997 and 959 of Khata No. 31 of village Bairiya and village Koloha Pagambarpur Schedule I and Schedule II properties respectively against the second respondent-Defendant Baidya Nath Prasad Verma alleging that the suit property detailed in Schedule I and II belonged to Girish Chandra Prasad. Case of Shailendra Prasad Srivastava is the plaintiff is that in the Revisional Survey of Records, Tarawati Devi, the widow of Girish Chandra Prasad got the property recorded in the name of her grandson Umashanker Prasad. The said Umashanker Prasad died during the lifetime of Tarawati Devi in the year 1965. Shailendra Prasad Srivastava further alleged that he, being the only male member of the family, used to stay with Tarawati Devi and did all the ceremonies after her death. Further case of Shailendra Prasad Srivastava is that when he was working at Bhillai, he learnt that Baidya Nath Prasad Verma is trying to obtain revenue receipt in collusion with Anchal Karmachari. Shailendra Prasad Srivastava went to the office of the Circle Office Kanti and got cancellation of revenue receipt in the name of defendant. The second respondent-Defendant Baidya Nath Prasad filed mutation appeal. When Shailendra Prasad Srivastava came to know that Baidya Nath Prasad is trying to claim title over the suit property through Tarawati Devi alleging that the suit property belonged to Tarawati Devi, Shailendra Prasad Srivastava being the agnate of Tarawati Devi filed a suit for declaration of his title.Resisting the suit, Baidya Nath Prasad filed a written statement refuting all claims of the Shailendra Prasad Srivastava and contending that the disputed property belonged to one Mr. Dhanukdhari Sahay. The said Dhanukdhari Sahay had one son named Mr. Vasudev Prasad, who further had a son and three daughters, namely, Ms. Tarawati Devi, Ms. Lakshmi Devi and Ms. Ranjan Devi. Ms. Ranjan Devi died during the lifetime of her father. Baidya Nath Prasad further pleaded that the suit property has been sold to various parties and the suit filed by the first respondent-Plaintiff against the Baidya Nath Prasad is liable to be dismissed. After the death of son Vasudev Prasad and others, the disputed property came to be vested in Ms. Tarawati Devi’s name.Baidya Nath Prasad was the closest legal heir of Dhanukdhari Sahay and after the death of Ms. Tarawati Devi in 1985, as per Section 5(2) of the Hindu Succession Act, the property devolved upon Baidya Nath Prasad by succession and mutation was effected in his name and he started paying revenue in respect of the suit property which was mutated in his name.

On the above pleadings, nine issues were framed in the trial court. Number of witnesses were examined on the side of the first respondent- Plaintiff as well as second respondent-Defendant. Upon consideration of oral and documentary evidence, the trial court held that the first respondent-Plaintiff has not produced any documents to show that the property belonged to the family of Tej Pratap Narayan. The trial court held that after the death of her father Dhanukdhari Sahay, Tarawati Devi became the sole legal heir of the disputed property and as per Section 15(1)(b) of Hindu Succession Act, if the deceased woman has acquired the property from her parents, it will be inherited by the successors of the parents of the deceased. It was further held that there is no record to show that Tarawati Devi got the disputed property from her husband or father-in-law. The trial court dismissed the suit holding that Shailendra Prasad Srivastava has not produced the necessary documents to prove his title to the suit property.

On appeal, the High Court reversed the findings of the trial court and held that as per the Revisional Survey Record of Right, property was recorded in the name of Umashanker Prasad, grandson of Girish Chandra Prasad and on the death of Girish Chandra Prasad, his widow Tarawati Devi became the absolute owner of the property and on her death in 1985, the property devolved on her agnate- Shailendra Prasad Srivastava. After referring to oral evidence and also the rent receipts produced by Shailendra Prasad Srivastava in his name and in the name of Girish Chandra Prasad , it was held that Shailendra Prasad Srivastava case about his agnate relationship with Girish Chandra Prasad stood proved and thus the Plaintiff proved his title to the suit property. On those reasonings, the High Court reversed the findings of the trial court and allowed the first appeal and decreed the Plaintiff’s suit.

The question falling for consideration before Supreme Court was whether the property belonged to Girish Chandra Prasad and after his death, his wife-Tarawati Devi succeeded to the property of her husband and after her death devolves upon her agnate first respondent-Plaintiff; or whether it belonged to Dhanukdhari Sahay, father of Tarawati Devi from whom Tarawati Devi inherited and as per Section 15(1)(b) of the Hindu Succession Act whether the Baidya Nath Prasad is entitled to succeed to the same.

The Supreme Court stated that the High Court has specifically dealt with two core issues:- one relating to the genuineness of the genealogical table contained in the plaint and the other relates to ascertainment of title of the first respondent-Plaintiff over the suit scheduled property by the documents- record of rights and rent receipts filed by the first respondent-Plaintiff. Contention of the appellants is that the High Court, while arriving at the conclusion, did not properly analyse the materials on record, in particular, the evidence adduced by the second respondent-Defendant. Further contention of the appellants is that the High Court being the first appellate court, being the final court of facts, was bound to analyse the evidence and record its reasonings, especially while it reversed the findings of the trial court. As per Order XLI Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence. Order XLI Rule 31 CPC reads as under:

“Order XLI Rule 31: Contents, date and signature of judgment. – The judgment of the Appellate Court shall be in writing and shall state – the points for determination;

the decision thereon;

the reasons for the decision; and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;

and shall at the time that it is propounded be signed and dated by the Judge or by the Judges concurring therein.” It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties.

An appellate court is the final court of facts. The judgment of the appellate court must therefore reflect court’s application of mind and record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements. Considering the nature and scope of duty of first appellate court, in Vinod Kumar vs Gangadhar (2015) 1 SCC 391, it was held as under:-In Santosh Hazari vs Purushottam Tiwari  (2001) 3 SCC 179, this Court held as under: (SCC pp. 188-89, para 15) “15. … The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. … while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.” The above view has been followed by a three-Judge Bench decision of this Court in Madhukar vs Sangram (2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

In H.K.N. Swami v. Irshad Basith (2005) 10 SCC 243, this Court stated as under: (SCC p. 244, para 3) “3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.”

The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, SCC p. 188, para 15 and Madhukar v. Sangram (2001) 4 SCC 756 SCC p. 758, para 5.

The Supreme Court stated that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. On careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, Supreme Court set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.”

Supreme Court set asidr the impunged order of High Court for consideration of the matter afresh. First respondent-Plaintiff, being the appellant before the High Court, is directed to take steps for impleading the legal representatives of the deceased second respondent-Defendant. The High Court shall afford sufficient opportunity to both the parties to adduce additional evidence, both oral and documentary and further afford sufficient opportunity of hearing to both the parties. Since the suit is of the year 1994, we request the High Court to dispose the appeal expeditiously in accordance with law. We make it clear that we have not expressed any opinion on the merits of the matter.

Article 20(3) in The Constitution Of India 1949:No person accused of any offence shall be compelled to be a witness against himself

Mumbai High Court in case of Niwas Keshav vs State of Maharastra has stated that if accused chooses to remain silent as to any incriminating material,his silence would not mean admission on his part.
The petitioner Niwas Keshav Raut an accused facing prosecution for the offences punishable under Sections 498-A and 306 of Indian Penal Code, prayed for quashing and setting aside of the order dated 17.10.2014 passed by the learned Sessions Judge, Satara,who allowed the application of the prosecution for filing of one document, a chit, alleged to be under the hand writing of deceased Savita, during the course of evidence of prosecution witness P.W.1 Ramesh Shinde.It so happened that on 22.9.2014, P.W.1 Ramesh Shinde was being examined as a prosecution witness by the prosecution, when at the close of his examination-in-chief, P.W.1 Ramesh Shinde deposed before the Court that on 20.9.2014, he discovered one chit from the case of spectacles of deceased Savita and on reading its contents, he found that the contents furnished some proof in support of the prosecution case against the accused. Therefore, on the request of the counsel for respondent,seeking permission of the Court to produce the chit before the Court. The application was strongly opposed by the accused on the ground that there was no provision under law which allows a witness to produce a document before the Court in this fashion and also on the ground that allowing of the application would cause prejudice to the defence of the accused.

Learned counsel for the Niwas Keshav stated that there is no provision under law which allows the prosecution to file before the Court a document on record at the time of recording of evidence of prosecution. He stated that once the charge-sheet is filed and the prosecution case reaches the stage of recording of evidence, under section 294 of Code of Criminal Procedure, a document cannot be filed  by the prosecution before the Court. He cited the case of State of Maharastra vs Ajay Dayaram Gopnarayan and anr in his support.

According to counsel of the respondent, there is no provision in law which prohibits the prosecution from filing before the Court a document which would be supportive of its case against the accused and that section 294 of the Cr.PC is only a procedural provision which regulates the manner in which a document can be filed before the Court and also the way it should be admitted in evidence and nothing more. The Counsel further stated that this procedure, as seen from the impugned order, has already been followed by the prosecution in this case and, therefore, according to the Counsel for the respondent, there is no merit in the present writ petition.

The Mumbai High Court stated that as far as Section 294 0f the Cr.P.C, is concerned, the learned cousel for the respondent is right that Section 294 is a procedural provision which lays down that as to how and when a document can be admitted in evidence or can be required to be proved in accordance with law. It only says that where any document is filed before any Court by the prosecution or the accused, the particulars of such document should be included in the list and thereafter the prosecution/defence should be called upon to admit or deny the genuineness of such a document. It lays down that the document must be produced before the Court along with the list of documents so that it becomes known to the other side as to which document is sought to be produced before the Court and how the document should be met or considered by way of resistance or admission. Sub-section (3) of Section 294 prescribes that where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding.

The Mumbai High Court, while interpreting Section 294 of Code of Criminal Procedure in case of Ajay Supra observed that Section 294 requires that particulars of the document sought to be filed in the Court must be included in the list and the documents which are not included in the list, as contemplated by Section 294(1), cannot be put forth for admission or denial nor can be exhibited or read in evidence without proving them as per law.

The Mumbai High Court further said that Section 294 of Cr.P.C no where places any embargo upon the prosecution or accused to file a document at a stage subsequent to filing of the charge-sheet. It only says that if any document is sought to be produced before the Court, it should be included in the list of the documents and then the other side should be called upon to either admit or deny the genuineness of the document. It means by necessary implication that a document can be filed subsequent to filing of charge-sheet subject to following the procedure prescribed in Section 294 of Cr.P.C. Then, it is not necessary for the accused, who is called upon to admit or deny the document, to choose either of these options and he may simply keep silence in respect of the document which may as well be an expression of his fundamental right under Article 20(3) of the Constitution of India which says that no person accused of any offence shall be compelled to be a witness against himself. In case the accused chooses to deny the document or just remains silent in that regard, the document cannot be admitted in evidence and it would be required to be proved in accordance with law, having regard to the right of the accused under Article 20(3) of the Constitution of India.The Mumbai High Court further stated that when the prosecution, which is called upon by the accused to admit or deny the document, does neither of the things and chooses to stay put with the document, a different situation would arise. In such a case, perspective of the right would change from that of fundamental to procedural, for,Article 20(3) is available to only those persons who are accused of any offence and not to those who allege commission of offence by others. Therefore, a criminal Court would have to meet silence of the prosecution in respect of a document in a different way, depending on the nature and contents of the document and the law of proof of documents applicable to the fact situation. In other words, facts of each case would trigger the effect of prosecution silence under Section 294 of Code of Criminal Procedure.

Mubmai High Court in context of the present case stated requirements of law have been followed by the learned Sessions Judge. He has considered the fact that as cross-examination has not begun there would be no question of causing of any prejudice to accused, and rightly so. He has observed that so far as the proof and effect of the document is concerned, same would have to be gone into at an appropriate stage, which again cannot be said to be a view standing opposite to law. Mubmai High Court did not  find neither any illegality nor arbitrariness in the impugned order of the Sessions Judge

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HEARSAY EVIDENCE, HAS NO EVIDENTIAL VALUE.

The Supreme Court reduced the death sentence of Govindachami, convicted by the trial court and Kerala High Court of rape and murder to seven years of jail term. Soumya the deceased/victim girl, aged about 23 years, used to work as a salesgirl in Ernakulum and was engaged to Anoop, the engagement of both was supposed to take place on 2^nd February, 2011 at the residence of Soumya. On 1^st February, 2011 Soumya boarded the Ernakulam-Shornur at about 5:30 p.m. from Ernakulum Town North Railway Station to go her home at Shornur.Soumya boarded the ladies division of the last compartment of the train along with the other passengers. At Mulloorkara railway station, Soumya along with the other ladies in the compartment got down along of the train and entered the ladies coach in front of the last compartment. The train reached Vallathol Nagar Railway Station, where it halted for few minutes.Govindachami entered the compartment after noticing that Soumya was alone in the compartment tried to rape Soumya. In the process Soumya jumped out of the train, was raped by Govindachami and died few days after being admitted in the hospital. According the to the postmortem report Govindachami hit Soumya 4-5 times against the wall of train from behind by holding her hair from back with right hand, which caused injury no-1. The other injury sustained by Soumya is due to fall on smooth surface on the rail track and gliding forward. It suggested that Soumya jumped down from running train and Govindachami also jumped along with her, running at a negligible speed from a height of 5-8 feet, resulting in injury no-2. Due to the fall, the left cheek bone was completely crushed. According to the post mortem Soumya died due to the complications arising out of the combination of both injuries, causing the blood enter into the wind pipe and lack of oxygen in the brain, because Soumya lied down with her face upward, ie.in supine position. The post mortem report further stated that there was recent sexual intercourse and further the blood stains of Soumya was found on the cloths of Govindachami. Further the DNA profiling also confirmed that the stains were that of Govindachami. Further there was enough evidence to show that Govindachami took away the mobile phone of Soumya which was sold to Manikyan which was again sold to Baby Varghese from whom the mobile was seized by the police. From the post mortem report it was indicated that According to the Supreme Court all the above evidences confirmed the offence under section 376 of the IPC that is of brutal rape for which the life sentences awarded by the trial & high court would also be justified by the Supreme Court. The Supreme Court also admitted that there was enough evidence to show that an offence was committed under section 394 read with section 397 of the IPC.As far as offence under section 302 is concerned, the Hon’ble Supreme Court held that it is certified and accepted that the death was caused due to combination of both the above mentioned injuries, however, Supreme Court held that ,there is enough evidence to indicate that Govindachami, caused the first injury, however Govindachami  alone cannot be considered for the second injury, as the second injury was caused due to fall of the deceased from the train running at negligible speed. Although according to the prosecution witness no 4 & 40, who were travelling in the general compartment which was attached along the ladies compartment, they heard the sounds of a women crying from the ladies compartment and prosecution witness wanted to pull the alarm chain of the train, but was prevented by a middle aged man standing at the door of the compartment, who told them that the girl has escaped by jumping out of the train, but according to the Supreme Court, their evidence was hearsay and hence inadmissible in evidence. The Supreme Court further held that accused is liable under section 302 of the IPC if there is an intention to cause death or knowledge that the act of the accused is likely to cause death. In the present case the intention of Govindachami to keep Soumya in the Supine position was for the purpose of sexual assult, therefore Supreme Court stated that Govindachami cannot be held liable for section 302 of the IPC,rather should be tried under section 325 of the IPC

Written Statement By The Husband That He Has Divorced His Wife (Without Communicating/Pronouncing The Divorce To Her) Would Not Amount To Divorce Among Muslims

Supreme Court in Shamim Ara v. State of U.P has disagreed with the established principles on the law of written divorce among Muslims, and has ruled that ‘talaq to be effective has to be pronounced’. The Court said that plea of talaq taken in an unsubstantiated written statement submitted before a Court not is accepted as a proof of talaq. Shamim Ara and Abrar Ahmad, were married some time in 1968 according to Muslim Shariyat Law. Four sons were born out of the wedlock. On 12.4.1979, Shamim Ara, on behalf of herself and for her two minor children, filed an application under Section 125 Cr.P.C. complaining of desertion and cruelty on the part of Abrar Ahmad with her. By order dated 3.4.1993 the learned Presiding Judge of the Family Court at Allahabad refused to grant any maintenance to Shamim Ara on the ground that she was already divorced by Abrar Ahmad and hence not entitled to any maintenance. However, maintenance at the rate of Rs.150/- per month was allowed for one son of Shamim Ara for the period during which he remained a minor; the other one having become major during the pendency of the proceedings.

Abrar Ahmad in his reply (written statement) dated 5.12.1990, to the application under Section 125 Cr.P.C., denied all the averments made in the application. One of the pleas taken by way of additional pleas is that he had divorced Shamim Ara on 11.7.1987 and since then the parties had ceased to be spouses. He also claimed protection behind the Muslim Women (Protection of Rights on Divorce) Act, 1986 and submitted that Abrar Ahmad had purchased a house and delivered the same to Shamim Ara in lieu of Mehar (Dower), and therefore, Shamim Ara was not entitled to any maintenance. No particulars of divorce were pleaded excepting making a bald statement as already stated hereinabove. Shamim Ara emphatically denied having been divorced at any time. Abrar Ahmad when he appeared in the witness-box, stated having divorced Shamim Ara on 11.7.1987 at 11 a.m. in the presence of Mehboob and other 4-5 persons of the neighbourhood. He further stated that since 1988 he had not paid anything either to Shamim Ara or to any of the four sons for their maintenance. The divorce said to have been given by him to Shamim Ara was a triple talaq though such a fact was not stated in the written statement. The Family Court in its order dated 3.4.1993 dealt with and upheld a strange story of divorce totally beyond the case set up by Abrar Ahmad. The learned Presiding Judge referred to some affidavit dated 31.8.1988 said to have been filed by Abrar Ahmad in some civil suit details whereof are not available from the record of the present case but certainly to which litigation Shamim Ara was not a party. In that affidavit it was stated by Abrar Ahmad that he had divorced Shamim Ara 15 months before. The learned Judge held that from such affidavit the plea of Abrar Ahmad found corroboration of his having divorced Shamim Ara. The learned Judge concluded that Shamim Ara was not entitled to any maintenance in view of her having been divorced. Shamim Ara preferred a revision before the High Court. The High Court held that the divorce which is alleged to have been given by Abrar Ahmad to Shamim Ara was not given in the presence of Shamim Ara and it is not the case of Abrar Ahmad that the same was communicated to her. But the communication would stand completed on 5.12.1990 with the filing of the written statement by Abrar Ahmad in the present case. Therefore, the High Court concluded that Shamim Ara was entitled to claim maintenance from 1.1.1988 to 5.12.1990 (the later date being the one on which reply to application under Section 125 Cr.P.C. was filed by Abrar Ahmad in the Court) whereafter her entitlement to have maintenance from Abrar Ahmad shall cease. The figure of maintenance was appointed by the High Court at Rs.200/-.

Shamim Ara has filed this appeal by special leave. The singular issue arising for decision is whether Shamim Ara can be said to have been divorced and the said divorce communicated to Shamim Ara so as to become effective from 5.12.1990, the date of filing of the written statement by Abrar Ahmad in these proceedings. None of the ancient holy books or scriptures of muslims mentions in its text such a form of divorce as has been accepted by the High Court and the Family Court. No such text has been brought to our notice which provides that a recital in any document, whether a pleading or an affidavit, incorporating a statement by the husband that he has already divorced his wife on an unspecified or specified date even if not communicated to the wife would become an effective divorce on the date on which the wife happens to learn of such statement contained in the copy of the affidavit or pleading served on her. Mulla on Principles of Mahomedan Law (Nineteenth Edition, 1990) states vide para 310:-“310. Talak may be oral or in writing.__ A talak may be effected (1) orally (by spoken words) or (2) by a written document called a talaknama.

(1) Oral Talak. __ No particular form of words is prescribed for effecting a talak. If the words are express (saheeh)or well understood as implying divorce no proof of intention is required. If the words are ambiguous (kinayat), the intention must be proved (e). It is not necessary that the talak should be pronounced in the presence of the wife or even addressed to her (f). In a Calcutta case the husband merely pronounced the word “talak” before a family council and this was held to be invalid as the wife was not named (g). This case was cited with approval by the Judicial Committee in a case where the talak was valid though pronounced in the wife’s absence, as the wife was named (h). The Madras High Court has also held that the words should refer to the wife (i). The talak pronounced in the absence of the wife takes effect though not communicated to her, but for purposes of dower it is not necessary that it should come to her knowledge (j); and her alimony may continue till she is informed of the divorce (k). As the divorce becomes effective for purposes of dower only when communicated to the wife, limitation under Art. 104 for the wife’s suit for deferred dower ran from the time when the divorce comes to her notice (l), under the Act of 1908. See also the Limitation Act, 1963.Words of divorce. The words of divorce must indicate an intention to dissolve the marriage. If they are express (saheeh), e.g., “Thou art divorced,” “I have divorced thee,” or “I divorce my wife for ever and render her haram from me” [Rashid Ahmad v. Anisa Khatun (1932) 59 I.A. 21], they clearly indicate an intention to dissolve the marriage and no proof of intention is necessary. But if they are ambiguous (kinayat), e.g., “Thou art my cousin, the daughter of my uncle, if thou goest” [Hamid Ali v. Imtiazan (1878) 2 All.71] or “I give up all relations and would have no connection of any sort with you” [Wajid Ali v. Jafar Husain (1932) 7 Luck, 430, 136 I.C. 209, (’32) A.O.34], the intention must be proved.Pronouncement of the word talak in the presence of the wife or when the knowledge of such pronouncement comes to the knowledge of the wife, results in the dissolution of the marriage. The intention of the husband is inconsequential. Ghansi Bibi v. Ghulam Dastagir (1968) 1 Mys. L.J. 566.

If a man says to his wife that she has been divorced yesterday or earlier, it leads to a divorce between them, even if there be no proof of a divorce on the previous day or earlier.”Ahmad Kasim v. Khatoon Bibi (1932) 59 Cal. 833, 141 I.C. 689, (’33) A.C. 27;(l) Kathiyumma v. Urathel Marakkar (1931) 133 I.C. 375, (’31) A.M. 647.] The statement of law by Mulla as contained in para 310 and footnotes thereunder is based on certain rulings of Privy Council and the High Courts. The decision of A.P. High Court in (1975) 1 APLJ 20 has also been cited by Mulla in support of the proposition that the statement by husband in pleadings filed in answer to petition for maintenance by wife that he had already divorced the petitioner (wife) long ago operates as divorce.

In Dr. Tahir Mahmood’s ‘The Muslim Law of India’ (Second Edition, at pp.113119), the basic rule stated is that a Muslim husband under all schools of Muslim Law can divorce his wife by his unilateral action and without the intervention of the Court. This power is known as the power to pronounce a talaq. A few decided cases are noticed by the learned author wherein it has been held that a statement made by the husband during the course of any judicial proceedings such as in wife’s suit for maintenance or restitution of conjugal rights, or the husband’s plea of divorce raised in the pleadings did effect a talaq. Such liberal view of talaq bringing to an end the marital relationship between Muslim spouses and heavily loaded in favour of Muslim husbands has met with criticism and strong disapproval at the hands of eminent jurists.V. Khalid, J, observed in Mohammed Haneefa Vs. Pathummal Beevi, 1972 K.L.T. 512 “I feel it my duty to alert public opinion towards a painful aspect that this case reveals. A Division Bench of this court, the highest court for this State, has clearly indicated the extent of the unbridled power of a muslim husband to divorce his wife. I am extracting below what Their Lordships have said in Pathayi v. Moideen (1968 KLT 763). “The only condition necessary for the valid exercise of the right of divorce by a husband is that he must be a major and of sound mind at that time. He can effect divorce whenever he desires. Even if he divorces his wife under compulsion, or in jest, or in anger that is considered perfectly valid. No special form is necessary for effecting divorce under Hanafi law . The husband can effect if by conveying to the wife that he is repudiating the alliance. It need not even be addressed to her. It takes effect the moment it comes to her knowledge.”

Should Muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Can it not be amended suitably to alleviate their sufferings? My judicial conscience is disturbed at this monstrosity. The question is whether the conscience of the leaders of public opinion of the community will also be disturbed.”(p.514) In an illuminating judgment, virtually a research document, the eminent judge and jurist V.R. Krishna Iyer, J., has made extensive observations. The judgment is reported as A. Yousuf Rawther Vs. Sowramma, AIR 1971 Kerala 261. It would suffice for our purpose to extract and reproduce a few out of the several observations made by His Lordship:-“The interpretation of a legislation, obviously intended to protect a weaker section of the community, like women, must be informed by the social perspective and purpose and, within its grammatical flexibility, must further the beneficent object. And so we must appreciate the Islamic ethos and the general sociological background which inspired the enactment of the law before locating the precise connotation of the words used in the statute.  “Since infallibility is not an attribute of the judiciary, the view has been ventured by Muslim jurists that the Indo-Anglian judicial exposition of the Islamic law of divorce has not exactly been just to the Holy Prophet or the Holy Book. Marginal distortions are inevitable when the Judicial Committee in Downing Street has to interpret Manu and Muhammad of India and Arabia. The soul of a culture law is largely the formalized and enforceable expression of a community’s cultural norms cannot be fully understood by alien minds. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions.” “It is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbridled authority to liquidate the marriage.”The whole Quoran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him, ‘if they (namely, women) obey you, then do not seek a way against them’.” (Quaran IV:34). The Islamic “law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously.”  “Commentators on the Quoran have rightly observed and this tallies with the law now administered in some Muslim countries like Iraq  that the husband must satisfy the court about the reasons for divorce. However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quoran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce.”  “After quoting from the Quoran and the Prophet, Dr. Galwash concludes that “divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of the marriage by ‘Talaq’ or by ‘Khola’ Consistently with the secular concept of marriage and divorce, the law insists that at the time of Talaq the husband must pay off the settlement debt to the wife and at the time of Kholaa she has to surrender to the husband her dower or abandon some of her rights, as compensation.” There is yet another illuminating and weighty judicial opinion available in two decisions of Gauhati High Court recorded by Baharul Islam, sitting singly in Sri Jiauddin Ahmed Vs. Mrs. Anwara Begum, (1981) 1 GLR 358 and later speaking for the Division Bench in Must. Rukia Khatun Vs. Abdul Khalique Laskar, (1981) 1 GLR 375. In Jiauddin Ahmed’s case a plea of previous divorce, i.e. the husband having divorced the wife on some day much previous to the date of filing of the written statement in the Court was taken and upheld. The question posed before the High Court was whether there has been valid talaq of the wife by the husband under the Muslim law? The learned Judge observed that though marriage under the Muslim law is only a civil contract yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it. But inspite of the sacredness of the character of the marriage-tie, Islam recognizes the necessity, in exceptional circumstances, of keeping the way open for its dissolution.  Quoting in the judgment several Holy Quranic verses and from commentaries thereon by well-recognized scholars of great eminence, the learned Judge expressed disapproval of the statement that “the whimsical and capricious divorce by the husband is good in law, though bad in theology” and observed that such a statement is based on the concept that women were chattel belonging to men, which the Holy Quran does not brook. The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters one from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be effected.  In Rukia Khatun’s case, the Division Bench stated that the correct law of talaq, as ordained by Holy Quran, is: (i) that ‘talaq’ must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, ‘talaq’ may be effected. The Division Bench expressly recorded its dissent from the Calcutta and Bombay view which, in their opinion, did not lay down the correct law.

We are in respectful agreement with the above said observations made by the learned Judges of High Courts. We must note that the observations were made 20-30 years before and our country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trends. What this Court observed in Bai Tahira Vs. Ali Hussain AIR 1979 SC 362 dealing with right to maintenance of a muslim divorcee is noteworthy. To quote: “The meaning of meanings is derived from values in a given society and its legal system. Article 15(3) has compelling, compassionate relevance in the context of S.125 and the benefit of doubt, if any, in statutory interpretation belongs to the ill- used wife and the derelict divorcee. This social perspective granted, the resolution of all the disputes projected is easy. Surely, Parliament, in keeping with Art. 15(3) and deliberate by design, made a special provision to help women in distress cast away by divorce. Protection against moral and material abandonment manifest in Art.39 is part of social and economic justice, specificated in Art.38, fulfillment of which is fundamental to the governance of the country (Art.37). The plea taken by Abrar Ahmad in his written statement may be re-noticed. Abrar Ahmad vaguely makes certain generalized accusations against Shamim Ara and states that ever since the marriage he found his wife to be sharp, shrewd and mischievous. Accusing the wife of having brought disgrace to the family, Abrar Ahmad  proceeds to state, vide para 12 (translated into English) __ “The answering respondent, feeling fade up with all such activities unbecoming of the wife-petitioner, has divorced her on 11.7.87.” The particulars of the alleged talaq are not pleaded nor the circumstances under which and the persons, if any, in whose presence talaq was pronounced have been stated. Such deficiency continued to prevail even during the trial and Abrar Ahmad, except examining himself, adduced no evidence in proof of talaq said to have been given by him on 11.7.1987. There are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq.

The Supreme Court stated that they are also of the opinion that the talaq to be effective has to be pronounced. The term ‘pronounce’ means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate (See Chambers 20th Century Dictionary, New Edition, p.1030). There is no proof of talaq having taken place on 11.7.1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5.12.1990. The Supreme Court held that they were  very clear in their mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. Abrar Ahmad ought to have adduced evidence and proved the pronouncement of talaq on 11.7.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. Supreme Court held that they do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife. So also the affidavit dated 31.8.1988, filed in some previous judicial proceedings not inter parte, containing a self-serving statement of Abrar Ahmad, could not have been read in evidence as relevant and of any value.

For the foregoing reasons, the appeal is allowed. Neither the marriage between the parties stands dissolved on 5.12.1990 nor does the liability of Abrar Ahmad to pay maintenance comes to an end on that day. Abrar Ahmad shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law. The costs in this appeal shall be borne by Abrar Ahmad

Doctrine of Severability:Deletion of word “Adult Male”in Section 2(q) of Protection of Women from Domestic Violence Act, 2005 Act.

In a landmark verdict, the Supreme Court has widened the scope of the Domestic Violence Act by ordering deletion of the words “adult male” from it, paving the way for prosecution of women and even …

Source: Doctrine of Severability:Deletion of word “Adult Male”in Section 2(q) of Protection of Women from Domestic Violence Act, 2005 Act.