The concept of Hindu marriage

The concept of Hindu marriage:

Ancient Hindu Law&Marriage

The institution of marriage is as old as Rig Vedic and was given importance in Veda's,the marriage in Hindu philosophy is holy and scared union.

Marriage is one of 16 samaskara's  as propounded by Veda Vysa,it is stated that Sudra has only one samaskara ,that is marriage.

One of the important stage of Hindu man's  life is  called Grihastha or married man [like Brahmacharya-Student,Grihastha-Household life ,Vanaprastha- Retired life , Sanyasa: Renounced ].

The purpose of marriage is not to beget children or sexual fulfillment ,but also to perform holy ceremonies ,Hindu wife is called 'Ardhangini' one half of man[Manu said "the man's personality is incomplete unless he gets wife",husband can not perform religious ceremonies without presence of wife[Sri Rama used Sita statue,in her absence in Yagna]

The married women is given utmost importance in Hindu society,ironically ,widow or single women&divorcee [even widow re-marriage prohibited]are not given much importance during certain Hindu ceremonies,which lead to mass social movements lead by Raja Rammohan Roy,Dayanand Saraswathi,Eshwarchand Vidhya sagar.


The gotra and surname of wife changes, as she will be regarded as  family member of husband.

The Ancient Hindu law allowed polygamy[under certain conditions]but monogamy was prohibited , but Drupadi case of marrying five men [Panch Pandavas]was an exception to the rule.

There was no provision for divorce in ancient Hindu law as marriage was performed by chanting holy hymns [Mantra's].The wife leaves father's house for ever and become a member of husband's familiy for generations, the marriage is   for seven generations.

In ancient Hindu law ,the offences of against marriage like Adultery was regarded as sin and wrongdoers were punished as well as ostracized from the society ,even prohibited to participate in social activities.The inter-caste marriage  or [same]sagotra marriage  was strictly prohibited in ancient Hindu law.

Secular Hindu Law : 

The Hindu code bill was introduce for the first time during interim-parliament session by Law Minister Dr.B.R Ambedkar ,but there was no progress as Dr Ambedkar resigned from the Ministry.After first general election [1952] ,four acts into existence during year 1955-1956.

1. Hindu Marriage Act ,1955.
2. Hindu Succession Act ,1956
3. Hindu Minority and Guardianship Act ,1956
4. Hindu Adoption and Maintenance Act,1956    

Conditions for Valid Hindu Marriage under Hindu Marriage Act ,1955:

Sec-5:Conditions for a Hindu marriage-A marriage may be solemnized between any two Hindus,if the following conditions are fulfillled,namely-

(i)Neither party has a spouse living at the time of marriage;

(ii)At the time of marriage, neither party,

(a)Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b)Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c)Has been subject to recurrent attacks of insanity;

(iii)The bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of marriage;

(iv)The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v)The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
   

Reference :

• Kane,P.V.(1973),History of DharmaŚãstra,Poona: Bhandarkar Oriental research Institute.
• Mulla -Hindu Law

•  http://indiankanoon.org/doc/1762508/

The Concept of Hinduism,Hindu Marriage&its Essential Ceremonies

The Concept of Hinduism,Hindu Marriage&its Essential Ceremonies:

Series of Posts on Hindu Law

• The concept of Hinduism.

• Hindu Marriage.

• Essentials of Hindu marriage.

• The divorce and maintenance under Hindu Marriage Act .

Who is an Hindu ? What are definitions of Hindu or Hinduism?

• The word 'Hindu' is derived from the Sanskrit word 'Sindhu', It was first mentioned in the Rig Veda.

• Hinduism is not religion "way of life" [S.C] ,it is not institutionalized religion or no religious central authority exists for Hinduism like Vatican church.

• According Section 2 Hindu Marriage Act 1956[Legal definition of "Hindu"]

(a) to any person who is a Hindu by religion in any of its forms and developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,(b) to any person who is a Buddhist, Jain or Sikh by religion, and“(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion”

• The Indian constitution does not define word 'Hinduism' includes a Virashaiva,Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.

• It is well accepted that the word 'Hindu' derived from Sindhu river or Indus [ NW frontier province / Punjab, now in Pakistan] ,the Persians used to pronounced Sindhu as Hindu,basically Aryans, who settled in Indus Valley were also called as Hindus.

• Hinduism is world oldest living religion ,as old as Harappan period (5500–2600BCE).The epics s Ramayana and Mahabharata were written roughly from 500–100BCE.

• It has third largest followers after Christianity and Islam .

• The Arabic term al-Hind referring to the land of the people ,who live across river Indus.

• " to many Hinduism seems to be a name without any content. Is it a museum of beliefs, a medley or rites, or a mere map, a geographical expression" in "The Hindu View of Life" by Dr. S Radhakrishnan,

• Hinduism is often referred to as Sanatana Dharma (सनातन धम) by its practitioners,a Sanskrit phrase meaning "the eternal law".

• Sources of Hindu Philosophy includes,Vedas[divine revelations sruti,four Veda's-Rigveda,Yajurveda&Sama veda],smriti[Laws of Manu],Upanishads,Purana's and Itihasa.

• Mahabharata and Ramayana are considered holy epics in Hinduism. [500–100BCE]

• Sikhism,Jainism,Buddhism are off-shoots Hinduism are governed by Hindu Law.

• Hinduism believes every aspect of life holy, the marriage is one of the Sixteen Samskaras[Samaskaras propounded by Veda vysa holds important other 's sages theory],which Hindu's believe sacrament or religious duty.

• "When we think of the Hindu religion, unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one god; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more."-Chief Justice P. B. Gajendragadkar.

• "Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse; and the realization of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion." -Bal Gangadhar Tilak

• A diverse body of religion, philosophy, and cultural practice native to and predominant in India, characterized by a belief in reincarnation and a supreme being of many forms and natures, by the view that opposing theories are aspects of one eternal truth, and by a desire for liberation from earthly evils-The Free Dictionary.

• "Hinduism is practiced primarily in India, Bangladesh, Sri Lanka, and Nepal. It is a diverse family of devotional and ascetic cults and philosophical schools, all sharing a belief in reincarnation and involving the worship of one or more of a large pantheon of gods and goddesses, including Shiva and Vishnu (incarnate as Rama and Krishna), Kali, Durga, Parvati, and Ganesh. Hindu society was traditionally based on a caste system"-2012,Oxford University Press.

Supreme Court &H.C Judgements &Definition of Hinduism :

• Gopal Narhar Safray v. Hanmanl Ganesh Safray (1879) I.L.R. 3 Bom. 273,

Lingayats founded by Basava [12th century] believes only one God, Siva, and reject the other two persons of the Hindu Triad[Brahma&Vishnu]They reverence the Vedas, but disregard the later commentaries on which the Brahmans rely.Their faith purports to be the primitive Hindu faith, cleared of all priestly mysticism.Lingayats are not Hindus in religion because they are no image worshipers.

The court held Lingayats are Hindus ,they have been subject to Hindu law as applied to Shudras.There is no other special law applicable to them

• Nalinaksha Majhi v. Rajanikania Das Mohanta (1931) I.L.R. 58 Cal. 1392.

It was held that under the Bengal School of the Hindu law of inheritance, a Vaishnava of whatever class was entitled to inherit from an ancestor who professed the orthodox Hindu creed and that a person of Vaishnava faith does not renounce the Hindu religion and continues to be a Hindu and professes Hindu religion in his own way, and though he may have seceded from orthodox Hinduism, as Lutherans did from the orthodox Catholic Church, he does not go out of the pale of Hinduism"

• Bhatinda v. State of Punjab [AIR 1971 S C 1731] &DAV College, Jullundur v. State of Punjab [AIR 1971 S C 1737]

"even if [institute] established by Arya Samaj, which is merely a part of the Hindu religion, cannot be held to be an institution established by a minority community so as to qualify for protection under Article 30 of the Constitution of India"-Arya Samaj is part of Hinduism ,no separate law exists for Arya Samajis .

• Acharya Jagdishwaranand Avadhuta, etc. VS. Commissioner of Police, Calcutta & Anr. [1984 1 SCR 447]

"Whether protection of Arts. 25 and 26 available to Ananda Marga-A socio-Spiritual organisation; No, Ananda Marga is not a separate religion but a religious denomination. Performance of Tandava dance in procession in public streets not an essential religious rite of Ananda Marga."

• Brahmachari Sidheswar Shai & Others v. State of West Bengal [AIR 1995 S C 2089]

"Sri Rama Krishna Mission found by Swamy Vivekanad is not separate religion &its institutes can not claim minority status under Article 30" It is well known Sri Rama Krishna was worshiper of Goddess Kali of Kalighath.

• Commissioner Of Endowments, vs All India Sai Seva Samaj on 19 October, 2001,A.P High Court Special Bench -Ref.case:2001 (6) ALD 747, 2001 (6) ALT 539:[S Sinha, G Raghuram, V Rao]

"Sai temples are also Hindu temples, Endowment Act is applicable to Shiridi Sai Baba Temples " "can not be treated parallel to Kabir Panth."

• The State Of Bombay vs Shastri Yagna Purushadasji on 3 October, 1958 (1959) 61 BOMLR 700

Swaminarayan temple at Ahmedabad and the temples subordinate there to were Hindu religious institutions within the meaning of Article 25(2)(b) of the Constitution.

Swaminarayan Sampradaya[Vaishava sect] is not a different religion from Hinduism.

References :

• http://en.wikipedia.org/wiki/Hindu

• http://www.britannica.com/EBchecked/topic/266312/Hinduism

• http://www.thefreedictionary.com/Hinduism

• http://oxforddictionaries.com/definition/Hinduism?region=us

Judgements :

• http://indiankanoon.org/doc/798012/

• http://indiankanoon.org/doc/1195632/

• http://indiankanoon.org/doc/1631138/

• http://www.indiankanoon.org/doc/1336275/

What is Civil Marriage ?

What is Civil Marriage ?

The meaning of marriage is 'state being united to person' as 'husband' or 'wife'.

 

Civil Marriage &Customary Marriage :   

There are two kinds of marriage performed in India;

• The customary marriage 

• The non-customary marriage i,e Civil Marriage.

The customary marriage ceremony is performed by following age-old customs,&traditions practiced since time memorial   like Mangalasutradharan,saptapadhi ,Kanya Dhan or Nikah or exchange of rings in the church.

The Customary marriages are governed by respective  customary religious laws viz Hindu law for Hindus/Muslim law for Muslims  /Christian law for Christian etc.

The Civil Marriage is performed through civil ceremony and is governed by"The Special Marriage Act,1954".

Any person ,irrespective of religion or caste or region can get married under Special Marriage Act i.e inter-caste or inter-religious are recognized under the Special Marriage Act.

Any dispute related to inter-caste or anti-religious  marriage ,Special Marriage act applies. 

The primary conditions include :

• Both bride&bridegroom should be of Marriageable age :girl/bride should be 18 yrs and boy /bridegroom should be 21 

• There should be valid consent.

• They should not fall under degree of prohibited relationship.

• Only Unmarried or previous marriage should have been dissolved legally. 

Procedure laid down in SM Act:

1. A Notice of intended marriage by parties/partners in a prescribed format ,as given in the second schedule of S.M Act.
2. Must have resided in the place proceeding date, on the date of notice.
3. Such notice should be affixed on the notice board for intended marriage for any objections.
4. Notice book to be maintained by marriage officer for public inspection.
5. If partners are not residing within local limits of district marriage registrar office,District marriage officer will transmit the notice to concerned district marriage district officer ,where parties residing.
6. Any Person/persons may file objection to the intended marriage before expiry of 30 days from the date of notice,if any conditions are violated as laid down in the above said act.  
7. The Marriage officer shall dispose of said objections after hearing both parties,may uphold or refuse to register the marriage.
8. Aggrieved party can approach concerned District Marriage Officer for an appeal against refusal of registration of marriage. 
9. Divorcee should attach a copy of divorce decree. 
10. Three witnesses and age proof [SSC certificate]
11. On the date of intended marriage,both parties will sign register maintained by M.O along with two witnesses. and the certificate of Marriage will be issued by M.O to the couple.Hence ,the marriage will become legal.

The registration of customary marriage is compulsory ,married couple can approach nearest Marriage Officer along with wedding invitation card,photo's and witnesses for registration of customary marriage.However,in the event of any dispute in customary marriage,the concerned  marriage act applies [HM Act or Muslim law or Christian law]     

 

Many young educated couples opting for love marriage,they are solemnizing it under Special Marriage as they come from different religious and caste background. 


References :

• http://www.vakilno1.com/bareacts/specialmarriageact/specialmarriageact.htm

The Concept of Approver&Grant of pardon to an accomplice

The Concept of Approver&Grant of pardon to an accomplice:

We often hear in media in high profile cases or scams ,one of the accused has agreed to be approver,but fundamental principles involved in the concept must be understood thoroughly by all lawyers/layman by  studying the relevant provisions in Criminal Procedure and Evidence act along with relevant case laws.


The conviction based on approver's evidence is legal valid &sustainable in India

Fundamental principles -Approver &Grant of Pardon : 

• There must be trial

• Guilty of accused is not proved

• Accused/accomplice agree to be approver ,there must be agreement to be approver for the grant of pardon provided he testifies in court about the crime. 

• The approver becomes witness,the moment pardon tendered by court ,he is discharged from the case[ A.J. Peiris v. State of Madras (AIR 1954 SC 616)

• If accused violate terms,there will be no question of pardon.[State v. Hiralal Girdharilal Kothari (AIR 1960 SC 360)]

• The power to grant pardon carries with it the right to impose a condition limiting the operation of such a pardon[State (Delhi Administration) v. Jagjit Singh (1989 Supp (2) SCC 770)]

• The grant of pardon to approver is based on principles of public policy and public interest -Karuppa Servai v.Kundaru AIR 1952 Mad 833: (1953 Crl.L.J. 45)

• Right to detain -In Mukesh Ramchandra Reddy, 1958 Cri.L.J.  343, the A. P High Court interpreted the word "shall" in the said provisions"as primarily obligatory and casting a duty on the Court to detain an accused to whom pardon has been tendered."

• Approver shall not be released until the decision of the case- A. L. Mehra v. State AIR 1958 Punj 72: (1958 Cri.LJ 413)

• Approver can be released on bail,if approver’s evidence was recorded-Santosh  Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) SCC 498.

The Definition of Accomplice under Evidence Act 1872 

According to Section 113  accomplice is a guilty associate or partner in crime who has connection or relationship with criminal act that he or she be implicated along with the principal offenders or offender.

• He can be called abettor 

• Person assisted offender in concealing the crime 
• An approver in crime 
• One who has received the stolen property  or contraband material.
• Even women in Adultery cases can be called accomplice ,but can not be prosecuted by existing provisions of law,Justice Malimath committee recommended the punishment for women in Adultery cases.

Types of Accomplice :

• Accomplice before fact-Guilty even before committing crime ,an approver is accomplice before fact

• Accomplice after fact-is no way connected with alleged crime or offence,but he has received stolen property or an receiver.

Evidential Value of Accomplice under Indian Evidence Act 1872:

• As per section 133 of accomplice shall be competent witness against accused ,conviction not bad in law. 

• There is contradictory provision exists in Indian Evidence in section  114 which says" accomplice evidence unworthy  unless corroborated by material particulars."

The conviction based on accomplice  evidence sustains under Indian law.It is settled law that section 133 prevails over section 114[K. Hasheem V State of Tamil Nadu 2005(1)SCC 237]

Grant of pardon to an accomplice& criminal procedure code 1973 ;

• Section 306-308 deal with tender of pardon to accomplice.  

• Section 306-307 deals with  tender of pardon&power to direct tender of pardon .

• Section 308- deals with trial of persons not complying with conditions of a tender of pardon 

 

Section 306 of Cr.Pc 1973 deals with Tender of pardon to accomplice;
"(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any, stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof."

(2) This section applies to-

(a) Any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).

(b) Any offence punishable with imprisonment, which may extend to seven years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon under sub-section (1) shall record-

(a) His reasons for so doing;

(b) Whether the tender was or was not accepted by the person to whom it was made,

and shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub-section (1)-

(a) Shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) Shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made under sub-section (1) and has, been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case.

(a) Commit it for trial-

(i) To the Court of Session if the offence is triable exclusively by that court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;

(ii) To a court of Special Judge appointed under the Criminal Law Amendment Act 1952 (46 of 1952), if the offence is triable exclusively by that court;

(b) In any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

At any time after commitment of a case but before Judgment is passed, the court to which the commitment is made may, with a view, to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.
 

Bangaru Laxman v. State, (2012) 1 SCC 500

On "Approver "&Purpose of grant of pardon " court  said "power is not to judge extent of culpability ofperson pardoned but to prevent failure of justice by not allowing offender to escape from lack of evidence"

"a deeming provision is a legal fiction and an admission of non-existence of fact deemed - Hence, while interpreting a provision creating a legal fiction, court has to ascertain purpose for which fiction is created,  "-(2012) 1 SCC 500-D 

Constitutional Validity of approver &Sohrabuddin Sheikh fake encounter case:

The Gujarat High Court  dismissed a petition filed by suspended IPS officer Rajkumar Pandian and some other accused in the Sohrabuddin Sheikh fake encounter case, challenging the constitutional validity of a CrPC section 306 ,related to giving pardon to an accused one of accused 'Amin' moved the special CBI court seeking pardon and turning an approver in the 2005 episode

A Division Bench of justices Jayant Patel & H B Antani rejected the plea with an observation that "section 306 of CrPC, read with principles of natural justice and provisions of the Constitution,does not cause prejudice to the fundamental rights of the accused"

Paritala Ravindra murder case-K. Ram Mohan Reddy vs The State Of AP : 2010

 Sri Justice  Samudrala  Govinddarajulu said :"a case triable by a Magistrate is not in a way worse than a case exclusively triable by a Court of Session, in relation to gravity of the offences involved. In a case triable by the Magistrate, Section 306(4)(b) Cr.P.C., contemplates detaining the person accepting tender of pardon in custody until termination of trial, it cannot be said that the law intended to release the accused from custody even before termination of trial in a Sessions Case where tender of pardon was accepted by the accused in a Sessions Court after committal of the case. Therefore, on proper interpretation of Sections 306 and 307 Cr.P.C., provision under Section 306(4)(b) Cr.P.C has to be made applicable to a case arising under Section 307 Cr.P.C also"

Sankararaman Murder [2004 Case] - 2011

Sankararaman murder case ,Kanchi seer Jayendra Saraswathi is the main accused in 2004 murder case ,In 2011, December 14,A Division Bench of Chennai High Court,Justices C Nagappan and T Sudanthiram, said " according to section 306 (4) CrPC, a person accepting pardon under sub-section (1) of the section had to be detained in custody until termination of the trial, unless the person was already on bail"


Abu Salem Case :
State of  Maharastra  V Abu Salem Abdul Kayyum  Ansari & Ors  (JT 2010 (11) SC 65 ,2010(10) SCALE ,514 2010 AIR(SCW) 6077,(2010) 10 SCC 179.


Question : "whether, the accused has a right to cross examine an accomplice who has been tendered in evidence by the prosecution as approver but later on pardon tendered to him was withdrawn on a certificate of the Public Prosecutor under Section 308 of the Code of Criminal Procedure, 1973 (for short, `Cr.P.C.') and he (approver) has not been further examined by the prosecution as its witness." 


 Held :We have referred to the aforesaid provisions of the Evidence Act, Cr.P.C. and Constitution to indicate that none of these provisions militates against the proposition that a pardon granted to an  accomplice under Section 306 or 307 Cr.P.C. protects him from prosecution and he becomes  witness for prosecution but on forfeiture of such  pardon, he is relegated to the position of an  accused and his evidence is rendered useless for the purposes of the trial of the co- accused. He  cannot be compelled to be a witness. There is no question of such person being further examined  for the prosecution and, therefore, no occasion arises for the defence to cross examine him" 

Emaar township case[A.P]-CBI orderd by A.P High Court :

Stylish Homes director T. Ranga Rao, who has turned an approver&grant of pardon in the case by filing an application uner Cr.PC  306 and already got an anticipatory bail in the above case.
In this case ,Emaar and its Indian associates allegedly diluted the equity of APIIC to six percent, causing huge losses to the public exchequer.

It is settled law the conviction based on accomplice/approver's evidence sustains/prevails.

References :

1. http://www.indiankanoon.org/doc/356159/ 
2. http://news.outlookindia.com/items.aspx?artid=699112 
3. http://www.dnaindia.com/india/report_sankararaman-murder-hc-dismisses-plea-seeking-release-of-accused_1626333
4.  http://delhicourts.nic.in/DEC%2011/Bangaru%20Laxman%20Vs.%20State.pdf
5. http://articles.timesofindia.indiatimes.com/2012-01-25/india/30662735_1_emaar-apiic-cbi-cases-emaar-hills-township-project

Lok Adalat--An alternate Forum For Settling Disputes

LOK  ADALAT -An alternate Forum For Settling Dispute

It is undeniable fact that there is huge pendency of cases and there are many reasons for the said pendency like low strength of  judges or other un-avoidable reasons.



I'm not going to do analysis about the piling up of cases,I would confine my self to the concept of Lok Adalat for settling disputes.



When people were vexed with delays and adjournments of court cases,the concept of Lok Adalat emerged as an alternate system of dispensing of justice/justice delivery system,wherein,any litigant can voluntaries agrees to settle their dispute in an amicable way with in short period of time ,we can also say inexpensive mode of settling of the dispute without following archaic &time consuming procedures.Many Supreme Court Judges supported the concept of  Lok Adalat.

Justice P.N Bhagawati said " legal aid means providing arrangement in the society so that machinery of administration of justice becomes easily accessible and is not out of reach those who have to resort to it for enforcement of rights given to them by law" 
 

Lok Adalat -Free Legal Aid &its Statutory provisions:


Constitutional Provisions : Article 14 says state shall not deny equality before law and equal justice shall be ensured to all.The citizens approaching court for enforcement of fundamental rights itself a fundamental right under Constitution of India.



Important provisions relating to legal aid includes Article 38 and Article 39  of Constitution of India,1950.



Article 38 says "State to secure a social order for the promotion of welfare of the people

(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations."


Article 39 A says "Equal justice and free legal aid-The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities"[included by 42nd Amendment ]


Article 21  says "Right to life and personal liberty",the right to free legal aid or free legal services is an essential part of the "reasonable ,fair ,and just procedure "The state is duty bound to provide services of lawyers.[Hussainara Khatoon V state of Bihar ,AIR ,1979 SC 1369.


In Khatri V State of Bihar AIR 1981 S.C 928 ,S.C said "free legal aid applicable in bail also"


In Ashok Kumar V State of Rajasthan,1995 Cr.L.J 1231 "Rich persons are not entitled for free legal aid"




Criminal Procedure Code,1973 : Section 304 says " Legal aid to accused at State expense in certain cases.

(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the State.

(2) The High Court may, with the previous approval of the State Government make rule providing for-

(a) The mode of selecting pleaders for defence under sub-section (2);
(b) The facilities to be allowed to such pleaders by the courts;
(c) The fee payable to such pleaders by the Government, and generally, for carrying out the purposes of sub-section (1).

(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other courts in the State as they apply in relation to trials before the Courts of Session.


Civil Procedure Code :


ORDER XXXIII. [SUITS BY INDIGENT PERSONS] Subs, by Act No. 104 of 1976 for "Suits by Paupers" (w.e.f. 1-2-1977).


1. Suits may be instituted by in by indigent person.Subject to the following provisions, any suit may be instituted by 1[an indigent person]

2[Explanation I—A person is an indigent person,—
(a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or
(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.
 
Explanation II—Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.
 
Explanation II—Where the plaintiff sued in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.]

Order 33 of the C.P.C. deals with suits by indigent persons. Order 33, Rule 10 provides for costs when an indigent person succeeds.as 


"he[Indigent] failed in the suit and appeal since both are dismissed by the trial Court and this Court. His contention that he is not liable to pay court fee since he continues to be indigent person is not sustainable".[see Dev vs Chief Secretary, Government Of,2003 AIR 2004 Ker 11, 2003 (3) KLT 201]


The Legal Services Authority Act ,1987 : 


In year 1971,an  expert committee on "Free Legal Aid " was formed under chairmanship of Justice Krishan Iyer recommended suitable legislation and appropriate provision for grant-in-aid for legal aid and lawyers obligation to provide free legal aid to poor.


In year 1980,expert committee was formed under chairmanship of Mr.Justice P.N Bhagwati to implement legal aid programmes .The legislation in this regard was passed in year 1987 ,the through act called " The Legal Services Authority Act ,1987 "


Mr. Justice R.N. Mishra the then Chief Justice of India played a key role in the enforcement of the said act


The Legal services Authorities under the act was formed to provide free and competent legal services to weaker sections of the society with intention of securing justice to all citizens ,which can not be  denied to any citizens due to reason of economic or other disabilities and to organise Lok Adalat to securing ends of  justice providing equal opportunity.




Section 12 of LSA act:.


Every person who has to file or defend a case shall be entitled to legal services under  this Act if that person is –

(a)a member of a Scheduled Caste or Scheduled Tribe;
(b)a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;
(c)a woman or a child;
(d)a mentally ill or otherwise disabled person;
(e)a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
(f)an industrial workman; or
(g)in custody, including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home within the meaning of clause
(j)of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987 (14 of 1987); or
(h)in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Govt., if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Govt., if the case is before the Supreme Court."
(Rules have already been amended to enhance this income ceiling).
According to section 2(1) (a) of the Act, legal aid can be provided to a person for a 'case' which includes a suit or any proceeding before a court. Section 2(1) (aaa) defines the 'court' as a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions. As per section 2(1)(c) 'legal service' includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter.


 Other Important sections :



Section 21. "Award of  Lok Adalat." 2[(1)] Every award of the Lok Adalat shall be deemed to be a decree of a Civil Court or, as the case may be, an order of any other Court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred on it under sub-section (1) of Sec.20, the court fee paid in such cases shall be refunded; in the manner provided under the Court Fees Act, 1870 (7 of 1870)

(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any Court against the award.

Section 22 :" Powers of Lok Adalats" - (1) The Lok Adalat shall, for the purposes of holding any determination under this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely : (a) the summoning and enforcing the attendance of any witness and examining him on oath;

(b) the discovery and production of any document ; (c) the reception of evidence on affidavits ;

(d) the requisitioning of any public record or document or copy of such record or document from any Court or Office; and (e) such other matters as may be prescribed.

(2) Without prejudice to the generality of the powers contained in sub-section (1), every Lok Adalat shall have the requisite powers to specify its own procedure for the determination of any dispute coming before it.

(3) All Proceedings before a Lok Adalat shall be deemed to be judicial proceedings within the meaning of Secs. 193, 219 and 228 of the Indian Penal Code (45 of 1860) and every Lok Adalat shall be deemed to be a Civil Court for the purpose of Sec. 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2) of 1974).

Procedure of Legal Aid &Lok Adalat :
 Legal Aid :

1. Any person requiring legal aid ,can make an application to Secretary Legal Services committee.
2. The committee will maintain register of applications. 
3. On receipt of application secretary will pass an order refusing or granting legal aid, after it found that application is fit to be legal aid case. 
4. LSA will refer matter to  paneled advocate,maintained by LSA for further course of action. 
5. LSA may finance PIL matters,where large body of victims belongs to weaker sections of society.

Lok Adalat :

• The lok adalat shall have jurisdiction to determine and arrive at compromise or settlement between parties to a dispute.

• Any case pending

• Any case which is falling with in jurisdiction of and is not brought before  any court for which the Lok Adalat is organized.

• Provided the Lok Adalat shall no jurisdiction in respect of any case or matter to an offence no compoundable under any law.

Cognizance of case by Lok Adalat :The Lok Adalat takes cognizance of case ,when

• The parties there of

• one of parties  ,can approach Lok Adalat

• If such court satisfied that there is a prima facie fit case for settlement or compromise.,then court will  refer matter to Secretary ,LSA.

There are large number of parties are involved in the dispute ,the Lok Adalat bench can be constituted for the batch case [Banks,Financial inst,Motor Vehicle cases ,insurance or family disputes ]


Benefits Under Lok Adalat:

1.There is no Court fee and if Court fee is already paid the amount will be refunded if the dispute is settled at Lok Adalat according to the rules.

2.The basic features of Lok Adalat are the procedural flexibility and speedy trial of the disputes. There is no strict application of procedural laws like Civil Procedure Code and Evidence Act ,while assessing the claim by Lok Adalat.

3.The parties to the dispute can directly interact with the Judge through their Counsel ,which is not possible in regular Courts of law.

4.The award by the Lok Adalat is binding on the parties and it has the status of a decree of a Civil Court and it is non- appeal-able which does not causes the delay in the settlement of disputes finally.

In view of above facilities provided by the 'Act' Lok Adalats are boon to the litigating public they can get their disputes settled fast and free of cost amicably."[Justice Lakshmanan in P.T. Thomas vs Thomas Job -http://www.indiankanoon.org/doc/109249/]

References :

1. http://indiankanoon.org/doc/1673816/
2. http://www.vakilno1.com/bareacts/CrPc/s304.htm
3. http://www.indiankanoon.org/doc/1286630/
4. http://www.indiankanoon.org/doc/109249/

Legal services websites : 

1.  http://apslsa.ap.nic.in/
2.  http://nalsa.gov.in/

Importance of Legal Document

Importance of Legal Document:

Drafting is very important component of legal practice and advocacy,one must understand that perfection of drafting is not possible,unless we understand law,facts and language.


Many young professional suffer due to poor drafting &documentation skills,may be because of lack of training and practice during college education.


The trained scribes or document writers used to draft document in muffasil towns during British period,this job was taken over  all advocates,drafting legal document is skill , art as well as  legal acumen ship.No drafter can do justice to his job with out  proper understanding of  substantive law as well as procedural laws. 

Many Senior Professionals give oral dictation to their juniors,so that they can learn nuances of drafting&pleading.


But this trend has declined over the years due to advent of newer information technologies gadgets like  Personal computers[P.C],Laptops/Note books,Dictaphone etc.

What is an Document?

The legal document plays very important role in all court cases as well as transactions viz Lease Deed,Rental Agreement ,Hire-Purchase agreement ,Partnership agreement ,vendor Agreement ,Sale Agreement ,Agreement to sale ,Family Property Settlement deeds etc.

The term document is not defined in any act,even Registration act does not defined the word document ,it only speaks about registration of documents,there is  reference about document in Indian Evidence Act,General Clauses Act and Information Technology act.

The definition of document has broader and wider meaning ,including 'Deeds' and 'Agreements'. It is important piece of evidence in all case before judicial as well as quasi-judicial authorities,while deciding the issues brought before it for adjudication.   

Indian Evidence Act :1872;Section 3 says "" Document"." Document" 1[ means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. 

Illustrations:

• A writing is a document
• Words printed lithographed or photographed are documents
• A map or plan is a document
• An inscription on a metal plate or stone is a document
• A caricature is a document." 

Evidence."" Evidence" means and includes-

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; 

(2) all documents produced for the inspection of the Court; such documents are called documentary evidence."

General Clauses Act 1897 :Section 3(18)says ;" document" shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter:


Information Technology act 2000 
The computers and Communication Technology like Internet changed Scenario of communications [official well as personal] ,trade,communication and litigation.After enactment of Information Technology document includes electronic records.Even Indian Evidence Act amen ended to include electronic communications ,recently CBI Court in '2G Scam case 'uphelded  the practice of sending notices / summons by CBI in the form of E-mails or SMS [short message service through mobile phones]. It is acceptable means of communication.


Section 2(1)(r) of I.T says  " electronic form" with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device;


The legal document,which is known as documentary evidence in legal parlance,no doubt  playing crucial role in legal cases,but due care and caution should be exercised ,while  drafting said legal documents,any loose ends or pitfalls in the documentation, may weaken your case in the court of law or other quasi judicial -authorities.

References :

1. http://www.indiankanoon.org/doc/1031309/
2. http://indiankanoon.org/doc/450071/
3. http://www.hindustantimes.com/India-news/NewDelhi/Summons-through-SMS-e-mail-valid-2G-case-court/Article1-815402.aspx

Importance &Role of Court Opinions

Importance &Role of Court Opinions

You may wonder what is the significance of title "Importance &Role of Courts Opinions",when all judgements of the courts are significant ,important and crucial for the lawyers ,judges and interested general public.There is lot of difference between ordinary judgment and land mark judgments,some times, land mark judgement will become law of the land[Visakha Case-Sexual harassment ],some judgments will become important citations /case law for future reference[D.K Basu case,Maneka Gandhi case or Bhim Singh case],which will be used by lawyers and courts.  

Sweeping Remarks or Merely expression of opinion:




While delivering the judgement, judges often makes sweeping remarks on certain point of law or legislative pitfalls [ shortcoming] or certain incisiveness criticism on important issue or general observations on the pressing problem of the nation,even suggest remedial measures to overcome lacuna or even suggest the government to make new law or amend the existing law to address the lacuna or pitfalls[example: Decriminalizing 377 or women should also be punished for adultery or misuse of 498-A  or legal terrorism ]. But trial courts or lower courts don't have privilege to make such sweeping remarks as they are court of facts.


There is lot of criticism on the judicial activism or  sweeping remarks of judges ,some say its judicial overreach as court are supposed to implement the law and should not to transgress on law making functions of the legislators or judges has no business to tell  legislators,how law should be or law ought to be.
Some say it is judicial activism,when other organs of government like executive or legislation fails to perform its obligation under Constitution,the courts has to intervene to perform it's  duty as watch dog of the constitution to protect the constitutional values and save the people from poor governance.




Types of Opinions: 




Lower courts or trial are fact based courts ,where as,the High Courts and Supreme Court have both original jurisprudence and appellate jurisprudence.


High Court : 


At high court level,the single or division bench hears appeals against the trial or lower court judgement.The panel of judges or bench[full bench or larger bench] will be constituted to hear any issue or point of law brought before it under original jurisdiction.

Supreme Court :

At Supreme Court ,panel of judges will hear appeals against high court [ trial courts ,all courts below Supreme Court are called trial courts in S.C ]orders or any issue brought before it under original jurisdiction.If any issue of constitutional importance or important legal issues is involved ,larger bench or full bench will be constituted to deliberate on the issue.

Some questions will asked by  young lawyers , budding lawyers or common man about meaning of certain terms ;

• Majority opinion  
• Concurring opinion
• Dissenting opinion
• Plurality opinion
• Per-Incurium Opinion  

• Majority Opinion :Where majority of judges agree on a specific point of law or affirming the judgement of lower court,lawyers often refer such cases  in court as precedent ,which carries lot of importance in deciding the out come of the pending case.

• Concurring opinion : Concurring or agreeing  with fellow judges or majority of judges.

• Dissenting Opinion : Disagreeing with fellow judges or judge,judge disagrees with colleague judge or judges with specific  reason for the differing [Js.P.N Bhagwathi dissenting opinion in Bachan Singh case] 

• Plurality Opinion : Divergent opinions of judges. No consensus evolved in the case,because of lack of majority opinion. 

•  Per-Incurium Opinion: The term indicate that the opinion was given by court ignoring existing law or judgment.This opinion does not carry much weight age.

The legislators makes statutory law, they are called law -makers ,if executive makes law,it is called administrative law [Viz .G.O] and Court /Judge gives judgement -it is called case law or we often call it judge -made law. 


The main aim of all organs of the government is to uphold constitution,no organ is greater or lesser than others,but all three organs are strong pillars of the government.The concept of checks &balances is very important in democracy and its survival.