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RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU LAW THROUGH A FEMINIST APPROACH

Articles

ABSTRACT

“We do not create marriage from scratch. Instead, in the elegant language of the marriage ceremony, we enter into the holy estate of matrimony.”[1] Marriage, like any other relationship, will have its ups and downs. Sometimes the rift between the partners gets slightly out of hand, for which the constitution-makers have developed remedies to handle any issue with ease. Under the Hindu Marriage Act, 1955, a remedy is called “restitution of conjugal rights.” If a spouse decides to abandon the marital home, the courts will intervene and order the spouse to return to cohabitation if the desertion is not “reasonable.” In India, the laws preventing sexual assault and rape are primitive. Marital rape is one such offense that, to date, does not have proper punishment. Some parts of society still do not think that marital rape is a grievous offense. The laws involved in it are sexist and only question the dignity of a woman. Hence, it is safe to say that “restitution of conjugal rights” is concerning and blatantly disregards a woman’s right to life with dignity and freedom to livelihood and her choice to choose what she wants to practice. This research paper will discuss the ambiguity surrounding the constitutional legitimacy of such provision using numerous case laws.

INTRODUCTION

A legally binding contract between two consenting individuals, a husband, and wife, is known as a marriage. Indian law recognizes marriage as conjugal rights, consisting of marriage, divorce, and maintenance alimony during separation to a spouse. Under section 9 of the Hindu Marriage Act, 1955, restitution of conjugal rights “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied with the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”[2] The above section means that if a spouse has decided to walk away from the marriage on no reasonable grounds, the burden to find sufficient evidence of a valid excuse shall be on the spouse who chose to walk away in the first place. England was the first country to use this remedy that India followed in Moonshee Bazloor v. Shamsoonaissa Begum.[3] Although England was the first country to establish this remedy, it also abolished the same in 1970, whereas India still follows the traditional laws of section 9 of the Hindu Marriage Act, 1955. Section 9 can not be deemed constitutionally valid as it violates the fundamental right to privacy, especially of a woman. It is one’s own wish to end a marriage; the court interfering and imposing restitution of conjugal rights is a form of violation of their personal liberty and freedom to life.

THE LACK OF LAWS AGAINST OFFENCES AGAINST MARRIED WOMEN

The restitution of conjugal rights is coercive as it forces a husband and wife to stay married even if they decide to end the marriage. Marriage is a sacred and holy institution, but any offense against a married woman in India is always justified. The Hindu Law was formed immediately after the independence; hence, it can be declared almost wholly unconstitutional. But the sexist society still allows India to be governed by such laws. In India, the wives are usually expected to meet their husbands’ sexual demands even without consent. This is proof that there is no accountability of men for marital rape. All these types of cases should be dealt with in criminal proceedings. Under section 375 of the Indian Penal Code, all the offenses of non-consensual sex with a woman are explained in detail. But as a part of exceptions, it clearly states that sexual intercourse between a husband and wife can not be considered rape if the wife is above the age of 18. ( according to a recent judgment in 2017 ) Section 9 of the Hindu Marriage Act, 1955, the court mandates the woman to stay in the marriage, despite the abuse she faces in the union. These respective laws demean women and violate their fundamental right to life with dignity. In the year 2021, August, the High Court of Chattisgarh stated that “Even if it was forced or without the agreement of a lawfully married woman, sexual intercourse or any sexual act by a husband with his spouse would not be considered rape.”[4] To date, the courts fail to realize that a married woman is just as capable and can have her own life as an unmarried woman.

Along with India, there are 32 other countries where marital rape is not criminalized. However, according to World Health Organization, Sexual Violence can be defined as “any sexual act, attempted sexual act, sexually inappropriate comments or advances, or activities to traffic, or otherwise aimed, against a person’s sexuality using compulsion, by anybody, regardless of their connection to the victim, in any context, including but not limited to home and work.”[5] In India, the maximum remedy a victim of marital rape will get is that she will be sent back to her native and will be forced to not talk about the incident. This is evident that the lack of law can be why there can be no criminal proceedings. The sexist mentality of men that they “own” the wife after marriage leads to more than 50% of sexual offenses against married women. A woman should not be forced to stay with an abusive husband, it should be her right to walk away from the marriage with dignity, and the accused should be punished for the offenses. The worst part about marital crimes is that victims’ families prefer them to keep shut and not go to court or voice their opinions, which gives them no hope but to keep enduring the pain and abuse from their husbands. This proves that the Indian Constitution can not preserve a married woman’s dignity and fundamental right.

THE RIGHTS OF A WOMAN IS MORE IMPORTANT THAN RESTITUTION OF CONJUGAL RIGHTS

Traditional beliefs on preserving the marital relationship through conjugal rights should be ignored, and it should be acknowledged that marriage entails something more than residing with each other. Women are susceptible to physically attractive guys and lose their ability to say no in a married context. The Hindu marriage vow means “union of thoughts” rather than “meeting of bodies,” as uttered throughout the ritual. The notion that marriage can only function if sexual relations are secure should be refuted. It should be recognized that a successful marriage requires more than just meeting the sexual interactions requirement.[6] A few decades back, “Divorce” was considered a wrongful act, whereas a woman staying in an abusive marriage was considered the right thing to do. In this case, Shakila Banu v. Gulam Mustafa, the court held that “The notion dates back to when slavery or quasi-slavery was considered normal. This is especially true now that India’s constitution has come into effect, which protects men and women’s rights, equality of status and opportunity, and empowers the state to take special measures for their protection and security.”[7] This highlights the importance of protection against women and how women can enjoy men’s rights. In this case, T. Sareetha v. Venkata Subbaiah, the Andra Pradesh High Court declared Section 9 of the Hindu Marriage Act, 1955 as unconstitutional as it violates Article 21’s right to liberty, which includes the right to the right to privacy, article 14, Right to equality of the Indian Constitution. However, the wife was defended by stating that it is her free will to decide whether she would use her body for procreation, and no one could coerce her into doing the same. This freedom of choice is a part of her right to privacy. By enforcing Section 9 of the Hindu marriage act, the court violates her fundamental right to privacy and her free will of choice.[8]

The Delhi Court disregarded this view of the High Court of Andra Pradesh in Harvinder Kaur v. Harmander Singh. Justice Avadh Behari Rohatgi overlooked the decision of the AP High Court and stated that sexual relations are not the only relations between a husband and wife. The restitution focuses on cohabitation and consortium, which upholds the faith in marriage. In this case, the Justice proved the constitutional validity of section 9 of the Hindu marriage act.[9] The Supreme Court upheld the decision of the Delhi High Court in Saroj Rani v. Sudarshan Kumar. The order was passed in favor of the wife to restate conjugal rights. The Supreme Court judge commented, “I cannot agree that Section 9 is unconstitutional howsoever the remedy may be old-fashioned or out of tune with the times. The restitution decree in the scheme of the Act is preparation for divorce if both the parties do not come together in the end. I will repeat what I have said before it is for the legislature to abolish the remedy of restitution and not for the Courts to strike it down on the ground that it is unconstitutional. In my opinion, Section 9 is perfectly valid.”[10] The different courts provide various reasons of how courts intervention in a marriage is correct, but the courts fail to realize that their intervention is causing the most harm to women. The courts only focus on the restitution of the marriage, but they do not provide any judgment for the dignity of women. Once again, the restitution of conjugal rights is given more importance and value than a woman’s life.

SEXIST MYTHS AND BELIEFS OF SEXUAL VIOLENCE AGAINST MARRIED WOMEN

Marriage confers a privileged place on women in many traditional societies, such as India, and married women are socially accepted. Indian Traditional culture is distinguished by “arranged unions,” respected intermediaries such as family priests and relatives form marital ties between the two households. Although the new couple may be asked about the union, the parents have the last say in whether or not the marriage is approved. In most scenarios, the wedding couple may not have much time together before finalizing their choice. In most traditional Indian cultures, however, class, social standing, economic level, and religion all play essential roles in the preference for arranged marriages. Therefore, stressing the importance of marriage and family in India gives a comprehensive view of conventional gender roles and marriage relationships. Most individuals believe in sexist attitudes and may voice them towards women who have been sexually assaulted. Due to ancient cultural hurdles and rape myths, any woman who has been subjected to marital abuse by her husband may confront an ambiguity. In India, one of the most widespread preconceptions is that rape cannot occur well within the confines of a marriage. In addition to not recognizing they have already been raped or assaulted, society frequently trivializes the pain and repercussions that these women experience. Another belief followed by some parts of India is that rape by a stranger is more painful and traumatic than by the husband as there is chemistry and sexual intimacy. Culture and traditions, orthodox ideals, rape myths, toxic masculinity, and legal loopholes are all possible influences in India’s disregard for domestic abuse, especially against married women. However, there is little evidence that conjugal sexist attitudes are widespread in India. Outsiders must avoid interfering in family affairs since they are seen as private. This causes victims to remain silent about their complaints and the violence they have endured. There seems to be a “culture of silence” linked with sexual assault that happens within the family. As a result, victims are frequently met with an indifferent and callous response from the judicial system. Survivors’ experiences of exposure to traumatic events are enriched by socio-cultural practices and encounters with various agencies and organizations of society. Sociologists only studied spousal abuse in the last twenty years. The conventional hierarchical family’s function as a fundamental pattern of interpersonal support systems in India is threatened by investigations on marital abuse in India. Due to spousal abuse’s general delicate and private nature, it frequently elicits significant cultural and family opposition. The orthodox traditions of dowry practice in India play an important role in contextualizing the potential risks and social conventions that provoke spousal abuse against women and humiliation and embarrassment for the victims of marital abuse. 

In this case, Huhhram v. Misri Bai, The wife left her marriage house, claiming that her husband and father-in-law mistreated her. On the other hand, the spouse sought a “restitution of conjugal rights” decision, and the judge mandated her to go back to her marriage house, just for her face mistreatments all over again. This shows that the court is least bothered about the dignity of women.[11] As per Hindu tradition, “the success of a marriage is determined by righteousness, reproduction, and sexual satisfaction.” In this case, State of Bombay v. Narasu Appa Mali, “restitution of conjugal rights as a question of personal law infringes on India’s basic rights as outlined in Provisions Of the Indian constitution. The wife’s request for restitution of conjugal rights against the husband is uncommon. The man is more often than not judged if he is unkind or trying to evade paying alimony.”[12] The Kerala High Court stated that marital rape constituted “a good reason” for divorce. On their 6 August judgment, Justices A Muhamed Mustaque and Kauser Edappagath said, “The husband’s licentious disposition neglecting the autonomy of the wife constitutes marital rape, while such behavior cannot be penalized, it comes within the frame of bodily and mental cruelty.”[13] In this case, Swaraj Garg v. K.M. Garg, even though defenses article 19(1)(e) and (g) were not disputed, the court dismissed the injunction on social grounds. The husband filed a case on the restitution of conjugal rights when the wife refused to quit her job and travel with him.[14] In this case, Shanti v. Ramesh, When his wife refused to resign her employment, the husband filed a lawsuit for “restitution of conjugal rights.” It was concluded that there was insufficient justification for denying the husband a declaration of “restitution of conjugal rights” since the wife’s refusal to join her husband in the marriage house owing to her employment was irrational and absurd. The court determined that the wife’s relocation for work was an unjustified justification for her abandoning the marriage home, infringing her fundamental right that guarantees freedom of choice and place of livelihood.[15] As a result, women’s oppression and subordination under a sexist system and conservative relationship difficulties exacerbate marital violence in India.

CONCLUSION AND RECOMMENDATIONS

The clause of “restitution of conjugal rights” serves as a solution for any tension that arises within matters of marriage by forcing the spouse to maintain coexistence; a judgment for “restitution of conjugal rights” that is not obeyed for more than a year would serve as a basis for separation. Nonetheless, the court’s intervention in a marriage should not be glorified. It should be one’s personal choice to stay or walk out of a marriage. The restitution of conjugal rights leads to unhappy people at weddings as they are being forced against their will to reside together. The court has no right to violate the people’s fundamental rights and should refrain from indulging in their private matters. Sexual offenses against married women should not be glorified. The law should give the same importance and seriousness as any other sexual offense against women.

Contrary to society’s beliefs in India, Marital Rape is not a myth but a serious offense that should be criminalized. Any sexual move against women without consent is a sexual offense, even if it is against a wife and the husband is an accuser. Instead of restitution of conjugal rights, society should give importance to preserving the dignity of a woman. Women’s fundamental freedoms and rights should not be violated and should provide the same level of importance and status as men. The only case that favored the dignity and rights of women was T Sareetha v. T Venkatasubbaiah. In this case, the Andra Pradesh High Court declared Section 9 of the Hindu Marriage Act, 1955 as unconstitutional as it violates Article 21’s right to liberty, which includes the right to privacy, article 14, Right to equality of the Indian Constitution.

Nevertheless, the clause has withstood all challenges, with India’s fundamental values, with the High Courts and the Supreme Court confirming its legality. It is also worth mentioning that the English judicial framework, which kindly provided us with this remedy, does not respect its legitimacy and has subsequently knocked down this clause in the year 1970, thereby prompting one to wonder if the existing legal system’s conservative mindset will triumph overall. The majority of the Indian courts have passed judgments that degraded women and questioned their choice of livelihood. This research paper mentions many cases where the court ordered the woman to return to the marital home despite her hardships. No woman should face this type of discrimination. A woman’s dignity is imperative than her marriage. In case of any problems in the union, the couple can seek therapy and try to work on their issues. There are sensible options like couple’s therapy and other counseling sessions that help them work on their marriage. If none of the methods are proven valid, the couple can divorce. A divorce is much better than an unhappy marriage. The court should not meddle in this case. It should be recognized that “restitution of conjugal rights” is a solution for healing a broken union and promoting reunification in the simplest forms.

Nevertheless, no one should be compelled to do anything against their free will, and it should be up to the spouses to decide if they want to keep their marriage together or not. Most crucial, policymakers, advocates of women, public defender clinics, and feminist groups should keep working on expanding and broadening legal terms of marital rape, sexual pressure, and harassment by spouses. Furthermore, the judicial process must guarantee that health and safety laws for women and their children who have been victims of sexual abuse and laws criminalizing any domestic abuse in India are strictly enforced.

BIBLIOGRAPHY

  1. Paras Diwan, The Hindu Marriage Act, 1955.
  2. D Gaur, Textbook on the Indian Penal Code.
  3. Geeta Pandey, BBC News, “In India, growing clamour to criminalize rape within marriage.”
  4. News18, “Marital Rape is Not a Crime in 32 Countries. One of Them is India.”
  5. Debasis Poddar, NLU Delhi Journal, “Restitution Of Conjugal Rights: A Quest For Jurisprudence Behind The Law.”
  6. Murali Krishnan, RFI International, “Marital rape is still not a crime in some parts of India.”

[1] Nancy Pearcey – We do not create marriage from scratch….. https://www.brainyquote.com/quotes/nancy_pearcey_530921

[2] Hindu Marriage Act, 1955, § 9, 1955 (India).

[3] Moonshee Bazloor v. Shamsoonaissa Begum, 1866-67 (11) MIA 551.

[4] MARITAL RAPE IS STILL NOT A CRIME IN SOME PARTS OF INDIA, https://www.rfi.fr/en/international/20210927-wk-marital-rape-is-still-not-a-crime-in-india (last visited Feb 18, 2022)

[5] MARITAL RAPE IS NOT A CRIME IN 32 COUNTRIES. ONE OF THEM IS INDIA, https://www.news18.com/news/india/marital-rape-is-not-a-crime-in-32-countries-one-of-them-is-india-4130363.html (last visited Feb 18, 2022)

[6] Debasis Poddar, Restitution Of Conjugal Rights: A Quest For Jurisprudence Behind The Law, Vol. 4, Journal National Law University Delhi, pp. 93-121 (2017).  http://14.139.58.147:8080/jspui/bitstream/123456789/383/1/Journal%20National%20Law%20University%20Delhi%20Volume%204%202016-2017.pdf

[7] Shakila Banu V. Gulam Mustafa ILR 1971 Bom 714.

[8] T Sareetha v. T Venkatasubbaiah AIR 1983 AP 356.

[9] Harvinder Kaur v. Harmander Singh, AIR 1984 Del. 66.

[10] Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562.

[11] Huhhram v. Misri Bai, AIR 1979 MP 144.

[12] State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.

[13] In India, growing clamour to criminalise rape within marriage, https://www.bbc.com/news/world-asia-india-58358795 (Last visited Feb 18, 2022).

[14] Swaraj Garg v. K M Garg AIR 1978 Delhi 296.

[15] Shanti v. Ramesh LJ 1961 All 67.

Written By Rangasree.

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THE KERALA HEALTHCARE SERVICE PERSONS AND HEALTHCARE SERVICE INSTITUTIONS, PREVENTION OF VIOLENCE AND DAMAGE TO PROPERTY) ACT 2012

Articles

Introduction:

According to The Kerala Healthcare Service Persons and Healthcare Service Institutions, Prevention of Violence and Damage to Property) Act 2012, prohibition of violence[1] is considered to be an offensive act. The idea is linked with an omission (to not to do something of legal nature). Violence[2] has been defined as the activities causing any harm, injury or endangering the life or intimidation, obstruction or hindrance, to any healthcare service person in discharge of duty in any healthcare service institution or damage or loss to property in healthcare service institutions.   This act is designed to protect the people from act of violence i.e. commission of violence to health care service individuals and to decrease damage or loss to property in a healthcare service institution. Contrarily, if this act would not be considered offensive, it would be a risk to the health care service institution to help people in our country.

This act protects the rights of patients, doctors and hospital properties from attacks. The patient will have the right and power to get complete information of medical treatment. And if there is any lapse or negligence in treatment, patient can go for the prosecution of offenders. The judgement of punishment truly depends on the gravity of the offence committed.

Classification of Offences

Cognizable offence means an offence in which a police officer has the authority to make an arrest without a warrant and to start an investigation with or without the permission of a court. Contrastingly, in case of a non-cognizable offence, a police officer does not have the authority to make an arrest without a warrant, and an investigation cannot be initiated without a court order.

In case of bailable offence, the grant of bail is a matter of right. It may be either given by a police officer who is having the custody of Accused, or by the court. However, a non–bailable offence is one in which the granting bail is not a matter of right. Any violation of the act or any offence committed under the section 3 i.e. if any act of violence is committed against healthcare service persons or damage or loss to property in a healthcare service institution shall be cognizable and non bailable.

Police do not have to wait till they get a warrant to arrest the person who committed the act. If the person fails to pay compensation, then the govt can go for a revenue recovery against the assaulter. The offender can be imprisoned for up to 3 years for the same. The provisions under this act does not provide bail at ease. The investigating officer has the right to investigate the case as from the time of confirmation of commission of offence.

The Procedure For Arrest, Bail, And Investigation

The offence committed is serious in nature. Therefore, the arrest can be made without warrant and investigation begins immediately as the consequences of the offence being mentioned can be a question to the safety of the society. Any offender who commits any act in contravention of section 3, shall be punishable with imprisonment for a period which may extend to three years and with fine-which may extend to fifty thousand rupees. The section 437 of CrPC talks about bail.

The offender shall be liable to pay to the healthcare service institution; a compensation of twice the amount of purchase price of medical equipment damaged and the loss caused to the property which the court determines during the proceedings of the offence. During the investigation, police can collect evidence, interrogate and examine individual. If under investigation police finds that the person is not provided with good treatment, the police can act against them. If the offender has not paid the compensation under sub-section (2), the said sum shall be recovered under the provisions of the Kerala Revenue Recovery Act, 1968 (15 of 1968), as if it were an arrear of land revenue due from him. The same way of penalties is described in the Cr.PC procedure.

The offence committed is a threat to society and that is the reason for considering it as non bailable but as the ingredient of bail is seniority of the offence that is committed. This provision allows a person to seek bail in expectation of an arrest  on accusation of having carried out a non-bailable offence. Investigation should be started immediately, and the person must be arrested too. It is a cognizable offence so without warrant also the police can arrest the person.

The Investigating Officer must produce the accused before the Judicial Magistrate /Judge concerned within 24 hours of the arrest. In this offence accused may be granted bail if competent authority deems it fit, exceptional circumstances should be brought in and presented to show that bail would not harm further process of trial and justice. A charge sheet should be presented before the court. A court is bound to presume a person innocent till the trial is complete. This is the procedure followed for the offence committed. If the charge sheet is not failed to file within the time, trial judges can grant bail. The procedure of investigation under CrPC depends upon the offence and has 60-90 days to file a charge sheet.

Punishable Acts

This act complies three types of punishment of IPC i.e. Simple or rigorous imprisonment up to three years, Fine which may extend to fifty thousand rupees and Forfeiture of property if fine is not paid as a penalty for illegal conduct. If a person failed to comply with an order from the commissioner within TWO WEEKS after the notice is given, the commissioner can seek a compulsive forfeiture as considered by the court. The Judge has all the means to form an opinion on the sentence which would meet the end of justice in a particular offence. If the offence is grave in nature, then the Code had prescribed the maximum and the minimum duration of the punishment i.e. up to 3years.  The decision should fit to the overall gravity of the offence. The punishment which is given shall not be severe unless required. when an offender is punished with more than one sentence, the overall sentence must be just and appropriate which shall proportional to the offending behavior.

The purpose of punishment can be a deterrent, rehabilitative, protection of the healthcare institutions (including those having provisional registration), registered nurses, medical students, nursing students, para medical workers employees, etc.  sentencing shall not be depending on the bias or personality of the judge. There shall be a clear and definite scheme of sentencing. the sentencing shall reflect the actual term to be served by the prisoner in prison, so there shall be no place for ambiguity. The court can issue a warrant to levy the amount by attaching and selling any movable property which belongs to the offender, can issue a warrant to the collector of the district at the place of living of the offender, authorizing him to take the money from the immovable property or movable property or both.

Cheating by providing non-valid services or information is also an offence and s.417 of IPC gives punishment for cheating. S.201,202 &204 IPC also talks about disappearance, intentional omission and destruction of evidence to hide facts and s.6 of The Kerala Healthcare Service Persons and Healthcare Service Institutions, Prevention of Violence and Damage to Property) Act 2012 talks about the same. Burden of proof lies on the prosecutor.

Continuance/Repeal/Revival of The Statute

It is in power and is enforceable. To repeal, revoke, abrogate or cancel particularly a statute the new statue must be more beneficial to both parties.  This act benefits the legal system of the country to uplift and ensure the safety of the health service institutions (including those having provisional registration), registered nurses, medical students, nursing students, para medical workers employees, and patients who are treated. This act protects the rights of the patients, doctors and the hospital properties in the time of an attack). The Government may, by notification in the Official Gazette, make rules for the purposes of carrying out the provisions of this Act.

Section 7 (2) of The Kerala Healthcare Service Persons and Healthcare Service Institutions, Prevention Of Violence And Damage To Property) Act, 2012  says Every rule made under this Act shall be laid, as soon as may be after it is made, before the Legislative Assembly, while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rule shall, thereafter, have effect only in such modified form or be of no effect. However, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Section 8(2) mentions that if the repeal is not withstanding, anything done or deemed to have been done or any action taken or deemed to have been taken under the said Ordinance shall be deemed to have been done or taken under this Act. This act must not be taken away as taking away this act may lead to unprotected state of healthcare service institutions.

According to changes in the medical field in future the act can be repealed so as to improve. Reviving a statute of limitations means that the entire time period begins again. The differences are made with consideration to provide better implementation of law. In case the new provision is not benefitting then we can revive. The provision of repeal in this act is bought in good faith. The repeal made should not be preceding against the central or state government or any other government body.

Conclusion & Commentary

Everyone in the society has the right to healthcare. The people who so ever in any manner do any act against the safety of healthcare service institutions must be inside the bars. People should be socially responsible. If the trouble is caused due to doctors or the service provider harassment which in response created an inconvenience to a genuine person who had no intention to harm but due to provocation harmed, should have right to protest against wrong doing of the doctor or the service provider.[3] There must be such exception to be provided as to make things better and idealize the judgement hence, removing the ambiguities. Other amendment can be, consumer protection act makes it better for the patient to get perfect treatment possible due to medical negligence. To get a bail one must pay the full fine of twice the amount of damage. If the person tries to damage the whole property and risk the life of people, the fine must exceed twice the amount of damage and exceed imprisonment from that of three years. There should be a special regulatory body to keep a check on health care service institutions on a regular basis to prevent the corruption in medical records and data entry of treatment given.

There must be videography in every healthcare institutions with the help of CCTV and these records must not be destroyed for a decade. Every prescription made must be kept on records until a year passes after the patient’s death after the enquiry and, summary of the reasons responsible for death including death certificate copy must be kept. These are some of the amendments that can be made to safeguard the health care services. The fine amount is revised as above 1 lakh as additional penalty if the person does not fallow or does not obey the rules of police while under investigation. And in statutory penalty, upon conviction, be punished with imprisonment for a period of minimum 5months to years, inclusion to the liability for payment of a monetary penalty in the range staring from 5000rs.

At the time of pandemic such as COVID-19 there much be an action towards people who do not follow the rules/medical instructions for safety and welfare of the country. Every person should be treated equally in medical institutions while providing services. The services if not provided with best quality then there must be appropriate provision to bring up services. The statue must be repealed for the benefit of the healthcare service institutions.

 

WRITTEN BY- POOJA LAKSHMI, LEGAL INTERN, PRIME LEGAL

REVIEWED BY- RITI GUPTA, LEGAL ASSISTANT, PRIME LEGAL

 

References:

  • The Kerala Healthcare Service Persons and Healthcare Service Institutions, Prevention of Violence and Damage to Property) Act 2012
  • Indian Medical Association Vs V.P. Shantha & Ors 1996 Air 550, 1995 SCC (6) 651.

[1] S. 3 of the act.

[2] S. 2(e) of the act.

[3] Indian medical association vs V.P. Shantha & Ors 1996 AIR 550, 1995 SCC (6) 651.

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MODERN TRENDS IN INHERITANCE LAW

Articles

Abstract

The paper delves into the matters related to inheritance law, right to property, recent judicial developments in Indian succession law, where courts have recently interpreted laws to provide Indian citizens additional property rights. Moreover, it also covers ancient and medieval trends in the inheritance law with respect to Indian statutes. Further, this paper also covers key areas such as principles of succession, rationale behind succession laws, coparcenary system.

As the current era is recognized as the Constitutional Era of Equality. The courts continue to be cautious when examining the constitutional legitimacy of personal laws, and with the emergence of social integration, economic independence, and reform movements, a stronger push for the advancement of women’s rights in Indian society in terms of equal property rights is expected. Thus, a part of the study also includes information on the gender disparities in inheritance law and the changes implemented to address the issues.

The holistic approach to inheritance law covers title transfer (in the presence or absence of a will), succession and legal heir-ship certificate, taxation and other conditions, nominee rights, and the procedure to be followed in claiming the same. The present study is confined to explore the scope of the judiciary processes within the inheritance law and evolution with respect to scope of inheritance in network virtual property.

Introduction  

Property enmity has traditionally been the source of long-running disputes. Property succession has historically resulted in conflicts between relatives all across the world. After the period of kings ended, the modern world’s arena shifted to the courts. Though succession law is an important and integral aspect of the entire system of laws, it is also a fascinating yet difficult subject due to its complexities. One of the most important concepts in the evolution of family law is to offer protection to family members. In India, the law of inheritance has been so recently and extensively modified that no one needs to be concerned about dying intestate, that is, without leaving a valid will. 

Inheritance refers to a person’s legal right to have a legal entity of origin or succession. Laws of Succession deal with the legal principles that govern the disposition of a deceased person’s assets. The study begins by outlining succession laws in India in a nutshell, including the differences between the two Hindu schools, Islamic inheritance rules, principles of succession, justification for succession laws, and the coparcenary system covering both agnates and cognates. It should be emphasized that the definition of an heir differs based on the person’s community and religious faith, which the paper attempts to illustrate.

Women account for half of the world’s population, work nearly two-thirds of the time, earn onetenth of global income, and own one-hundredth of the world’s property. The law on maintenance through inheritance which covers protection from desertion by husbands, property of a Hindu female dying intestate, and judicial developments in India will be explored in the following chapter on women’s right to property – recent trends. 

While the law of succession has been settled as a result of successive Supreme Court and High Judicial opinions, the competing rights of the nominee and the legal heir have always been a source of contention. The following chapter, co-operative societies and inheritance, discusses how to claim one’s rightful share – succession and legal heirship certificate, transfer of ownership to a nominee upon a member’s death, and processing housing society inheritance, inheritance scope of network virtual property

With each passing day, the mortality toll from Covid rises, which, as unpleasant as it may be, unavoidably leads to an increase in succession and property-related disputes, creating difficulties of inheritance. The final chapter, Conclusion and Commentaries, contains the ideology and observations on the work, as well as suggestions and a path ahead to address the challenges faced in India. This section focuses mostly on the evolution of precedent and its impact, as well as how it could have been better or more preferable. 

Succession Laws in India – In A Nutshell 

Laws of Succession deal with the legal principles that govern the disposition of the assets of a deceased person. Corporate entities with permanent existence are exempted and are subject to different rules governing winding up, reorganization, and closure. The laws of succession are separated into two categories: primarily, where the deceased has left a legal and enforceable ‘Will,’ and next, wherein a deceased has departed without making such a ‘Will.’

 Succession laws – the two Hindu schools

In the Mitakshara school of inheritance, property is inherited by the successors (coparceners) naturally because they were born into the family, whereas in the Dayabhaga school of inheritance, property passes to the successors (coparceners) on the death of the father or holder of the property.[1] The Mitakshara was considered to be extremely discriminatory toward women, giving them the least rights to inherit property. Despite the fact that Dayabhaga was discriminatory, it allowed women more rights compared to Mitakshara and was hence regarded a liberal school. Traditional Hindu law did not regard females equivalent to males, and they were not granted the same status as men. The Hindu Women’s Rights to Property Act, 1937, was one of the first legislation to grant women the right to ancestral property. The Supreme Court judgement[2] upheld the 2005 amendment, effectively making women coparceners in the same way as men are, and thus removing the final barrier to women’s access to ancestral property.

Islamic laws of Inheritance

Sharers and Residuaries are two types of heirs recognised by Muslim law. Sharers are those who are entitled to a portion of the deceased’s property, whereas residuaries would take over the portion of the property that remains after the sharers have taken theirs.[3] If the deceased left behind daughter/daughters and son/sons, the daughters cease to be sharers and instead become residuaries, with the remainder allocated so that each son receives twice as much as each daughter. 

In Sunni law, the per capita distribution approach is often adopted. The inheritance left over by the ancestors is shared evenly among the heirs under this approach, therefore each person’s share is influenced by the number of heirs. On the other hand, Shia law recognizes per strip distribution method where the property is divided amongst heirs as per the strip to which they belong, thus determined by the section and the number of people who belong to it.

Women’s Right to Property – Recent Trends

The situation in India has evolved dramatically, with women rising to positions of leadership in a variety of industries and thereby acquiring property in their own right. Section 16 of the Act establishes the order of succession of the Hindu female’s heirs and therefore should be read in conjunction with Section 15 of the Act, which establishes the basic norms of succession. The term “property” refers to both movable and immovable assets possessed and obtained by a Hindu woman by inheritance, partition, gift, or purchase.

The Law on Maintenance through inheritance 

Recognizing the pivotal need for uniform, reliable, procedural fairness, and timeliness in the handling of maintenance cases, the Supreme Court recently issued rules on several areas of maintenance payment in matrimonial disputes (“Guidelines”).10 The Supreme Court’s Guidelines address, primarily the issue of overlapping jurisdiction for payment of maintenance under different enactments11; followed by payment of interim maintenance;  criteria for determining maintenance quantum; date from which maintenance is to be awarded; and the enforcement of maintenance orders[4].[5] Embracing India’s completely different demographic profile (which includes metropolises, urban, rural, and tribal areas, among other factors), the Court emphasized and acknowledged that the Affidavit of Disclosure to be filed by parties residing in urban areas would be entirely different from that filed by parties residing in rural or tribal areas. The Supreme Court’s issue of the aforementioned Guidelines and the formulation of the Affidavit of Disclosure will ensure that the entire process of granting maintenance to a spouse is implemented.

Property of A Hindu Female Dying Intestate

Section 15 of the Act lays out a consistent and effective succession scheme for a Hindu female who dies intestate. Section 15 of the Act fails to evaluate the equity of a Hindu female’s selfacquired property when she dies intestate since the legislators did not anticipate that Hindu females would have self-acquired property during the time the legislation was enacted.[6] The Section fails to distinguish between property inherited by a Hindu female and property obtained by her on her own. It generally states that if property is inherited from her husband or father-in-law, it will go to her husband’s heirs, and if property is inherited from her father or mother, it will go to her father’s heirs in the absence of her descendants. 

In the absence of her in-laws, even if she has living siblings, the Hindu female’s entire self-acquired property would vest in the brothers and sisters of the pre-deceased spouse and not in the Hindu female’s family. If a Hindu woman dies intestate, leaving behind her self-acquired property, and her heirs in the first class (fathers’ siblings or in-laws) fail, her property will fall entirely to her husband’s heirs, who may or may not be connected at all, and are likely unaware of the existence of each other.

Judicial Developments in India

Even after 60 years of independence and a written constitution that guarantees the right to equality without discrimination on the grounds of sex or religion, the law with respect to the distribution of property by way of inheritance has not been clearly decided in India. Before the Hon’ble Supreme Court, the issue of a married women was raised wherein her husband died three months after they married, leaving her a widow. As a result, she was banished from her marital home directly following her husband’s death.[7] In the case of a Hindu married female dying intestate, as in the above case, if her husband predeceases her and there are no descendants, her property devolves on her husband’s heirs, i.e., paternal and maternal heirs do not inherit her property, but her spouse’s relatives inherit in the capacity as her husband’s heirs, regardless of what relationship they have with her husband.[8] Contemporary Indian society refuses to abandon ancient ideals and maintains ancient patterns of material asset ownership. The agrarian transition in India has been poor, inconsistent, and patriarchal.[9] It is far more important to adhere to the Constitution of India’s ideals of equality, fairness, and non-discrimination than to keep the outdated, irrational, arbitrary, and unequal personal laws that degrade women’s standing in India.

Co-Operative Societies and Inheritance 

Owning property is a human right. India has the concept of legal heirs; the individual whose name appears in the deceased’s will who will lawfully inherit property. If will is absent, the legal heir to a deceased person’s property is determined by the relevant succession or property inheritance rules in India, which vary according to religious faith. The legal procedures for attaining title of a deceased person’s property differ according to the type of property, the rights to it, the number of legal heirs who can claim ownership, and other factors.[10]

Claim One’s Rightful Share – Succession and Legal Heir-ship Certificate

A succession certificate is defined by the Indian Succession Act, 1925 as a document provided by a court to the legal heirs of a deceased person to confirm their validity and grant them the authority to claim the deceased’s assets, securities, and other debts. A succession certificate’s objective includes liabilities and securities such as provident funds, bank deposits, insurance, shares, or any other central or state governmental asset to which the deceased was obligated to receive. The principle goal of succession certificate is the facilitation of collection of debt and provide protection. In cases where the inheritance amount is significant, a succession certificate may be necessary in order to establish the claimant’s authenticity. Banks and financial institutions mostly rely on the succession certificate and/or a legal heirship certificate in the absence of a Will. A legal heirship certificate is given to recognize a deceased person’s surviving heirs, whereas a succession certificate is issued to confirm the heirs’ legitimacy and grant them the permission to inherit debts, securities, and other assets left behind by the deceased.[11]        

Conclusion & Commentaries.

A person’s property passes to his or her heirs when he or she dies. A person can pass away with or without a will. If he or she dies without leaving a will, the property is distributed among his or her heirs in accordance with inheritance or succession laws, thus, inheritance is one of the most important rules in both family and property law. This paper focused with inheritance law in general, including the nature and scope of inheritance, as well as how it is carried out. The paper while discussing about immovable property also finds the importance of discussing the inheritance scope of network virtual property due to its importance in the present era. 

There is now no explicit provision in “inheritance law” regarding network virtual property, resulting in a lack of legislative guidance in court in such circumstances. As intellectual property rights evolve, it’s also critical to consider inheritance in the context of intellectual property. Inheritance is a topic with a lot of qualitative material, thus it needed to be thoroughly investigated in order to produce a paper.

Moreover, the summary of the facts and information pertaining to the case study with respect to inheritance law makes it clear that India is yet to develop with respect to inheritance law, especially with respect to title of women with respect to Karta and many more. To deepen comprehension of the issue, the current covid crisis and its impact is vast that virtual life increased with increase in death leading to conflicts and challenges escalating.  

WRITTEN BY- POOJA LAKSHMI, LEGAL INTERN, PRIME LEGAL

REVIEWED BY- RITI GUPTA, LEGAL ASSISTANT, PRIME LEGAL

 

References:

Statutes:

  • Hindu Succession (Amendment) Act, 2005
  • Indian Succession Act, 1925
  • Intellectual Property Act 2014
  • Muslim Personal Law (Shariat) Act, 1937
  • The Companies Act 1956
  • The Family Law Act 2019
  • The Hindu Inheritance (Removal of Disabilities) Act, 1928
  • The Hindu Law of Inheritance (Amendment) Act, 1929
  • The Hindu Women’s Right to Property Act, 1937
  • The Transfer of Property Act, 1882

Cases

  • Kailvelikkal Ambunh (Deceased) by LRs v H Ganesh Bhandary (AIR 1995 SC 2491)
  • Vineeta Sharma vs Rakesh Sharma, (2020) 9 SCC 1
  • Indrani Wahi v. Registrar of Cooperative Societies and Ors., AIR 2016 SC 1969.
  • Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36
  • Rajnesh v. Neha & Anr., Criminal Appeal No. 730 of 2020
  • Omprakash and Ors. V/s. Radhacharan and Ors., (2009) 15 SCC 66

Articles

  • Aditya Mehta , Manasvi Nandu and Tanya Singh, India: Supreme Court Clarifies The Law On      Maintenance,      Cyril      Amarchand      Mangaldas,      (11      February      2021), https://www.mondaq.com/india/family-law/1034570/supreme-court-clarifies-the-law-onmaintenance?type=popular#_ftn2
  • Archana Mishra, Towards Women’s Equal Right to Property – Recent Judicial Developments in India, Property Law Review (2016) 5 Prop L Rev 161, https://dx.doi.org/10.2139/ssrn.2672561
  • Balwant Jain, Inheriting assets after death of the owner, (February 25, 2021), https://housing.com/news/inheriting-assets-after-death-of-the-owner/
  • Divi Dutta and Anant Gupta, India: How to Claim One’s Rightful Share – Succession And Legal Heirship Certificate, Shardul Amarchand Mangaldas & Co, (11 July 2017), https://www.mondaq.com/india/wills-intestacy-estate-planning/609552/how-to-claimone39s-rightful-share-succession-and-legal-heirship-certificate
  • How will the property be distributed if I die without leaving a Will behind?, https://lawayz.com/how-will-the-property-be-distributed-if-i-die-without-leaving-a-willbehind/
  • Inheritance under   Muslim            law, https://districts.ecourts.gov.in/sites/default/files/jcj%20palakondawrkshp1.pdf
  • Komal Rajak, Trajectories of Women’s Property Rights in India: A Reading of the Hindu Code    Bill,     (May   1,         2020), Volume:          12        issue:   1, https://doi.org/10.1177/2455328X19898420
  • Maneck Mulla and Jinal M. Shah, India: Property Of A Hindu Female Dying Intestate, (23 October 2018), M Mulla Associates, https://www.mondaq.com/india/wills-intestacyestate-planning/747976/property-of-a-hindu-female-dying-intestate?
  • Noopur, Processing       Housing           society             inheritance,     (March            26,             2021), https://adda.io/blog/2021/03/processing-housing-society-inheritance/
  • Olivia Y. Truong, Virtual Inheritance: Assigning More Virtual Property Rights, Syracuse
  • Science & Technology Law Reporter, https://jost.syr.edu/wp-content/uploads/3_TruongSSTLR-Vol.-21-Fall-2009-FINAL.pdf
  • Pengfei Ji, Discussion on Issues of Inheritance of Internet Virtual Property, Scientific Research Publishing Inc., https://www.scirp.org/html/1-7200987_54442.htm
  • Rachit Garg, Historical perspectives of Hindu law of inheritance, (September 28, 2020), https://blog.ipleaders.in/historical-perspectives-hindu-law-inheritance/
  • Shalabh Agarwal and Asoke Nath, A Comprehensive Study on Scope and Challenges in Digital Inheritance, International Journal of Scientific Research in Computer Science, Engineering and Information Technology, Volume 7, Issue 2, Page Number: 98-104, https://ijsrcseit.com/paper/CSEIT217225.pdf
  • Shekhar Agrawal, Succession Laws in India in a Nutshell, The Law Point, (Jun 26, 2020), https://www.thelawpoint.com/post/succession-laws-in-india-in-a-nutshell?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedInintegration
  • Solomon & Co., India: Co-Operative Societies – Transfer Of Ownership To A Nominee Upon Death Of A Member, https://www.mondaq.com/india/wills-intestacy-estateplanning/623826/co-operative-societies–transfer-of-ownership-to-a-nominee-upondeath-of-a-member?type=popular
  • Subodh Asthana, Coparcenary under Hindu Law: An Overview of the recent Amendments, (February 25, 2020), https://blog.ipleaders.in/coparcenary-hindu-law/

[1] Rachit Garg,      Historical              perspectives          of            Hindu     law         of            inheritance,           (September           28,                 2020), https://blog.ipleaders.in/historical-perspectives-hindu-law-inheritance/

[2] Vineeta Sharma vs Rakesh Sharma, (2020) 9 SCC 1

[3] Inheritance under Muslim law, https://districts.ecourts.gov.in/sites/default/files/jcj%20palakondawrkshp1.pdf

[4] Sections 51, 55, 58, 60 read with Order XXI of the Code of Civil Procedure, 1908.

[5] Aditya Mehta , Manasvi Nandu and Tanya Singh, India: Supreme Court Clarifies The Law On Maintenance, Cyril Amarchand Mangaldas, (11 February 2021), https://www.mondaq.com/india/family-law/1034570/supreme-courtclarifies-the-law-on-maintenance?type=popular#_ftn2

[6] Maneck Mulla and Jinal M. Shah, India: Property Of A Hindu Female Dying Intestate, (23 October 2018), M Mulla Associates, https://www.mondaq.com/india/wills-intestacy-estate-planning/747976/property-of-a-hindu-femaledying-intestate? 

[7] Omprakash and Ors. V/s. Radhacharan and Ors., (2009) 15 SCC 66

[8] Maneck Mulla and Jinal M. Shah, India: Property Of A Hindu Female Dying Intestate, (23 October 2018), M Mulla Associates, https://www.mondaq.com/india/wills-intestacy-estate-planning/747976/property-of-a-hindu-femaledying-intestate?

[9] Archana Mishra, Towards Women’s Equal Right to Property – Recent Judicial Developments in India, Property Law Review (2016) 5 Prop L Rev 161, https://dx.doi.org/10.2139/ssrn.2672561

[10] Noopur, Processing Housing society inheritance, (March 26, 2021), https://adda.io/blog/2021/03/processinghousing-society-inheritance/

[11] Divi Dutta and Anant Gupta, India: How to Claim One’s Rightful Share – Succession And Legal Heirship Certificate, Shardul Amarchand Mangaldas & Co, (11 July 2017), https://www.mondaq.com/india/wills-intestacyestate-planning/609552/how-to-claim-one39s-rightful-share-succession-and-legal-heirship-certificate

0

DISHONOUR OF CHEQUE: ANALYSING THE DE-CRIMINALISATION OF SECTION 138 AND ITS APPLICABILITY ON HUF AND TRUST

Articles

I. Introduction

A.    Background

The Negotiable Instruments Act, 1881[1] (‘the Act’) was enacted with a view to establish laws relating to promissory notes, bills of exchange and cheques, which at the time were novel financial tools in India. Although promissory notes and bills of exchange have become outdated, today, cheques continue to be the preferred mode for carrying out banking transactions and as such have become essential to the functioning of the economic superstructure of the capitalist world.[2] Chapter XVII of the Act comprises of sections 138 to 142. These are penal provisions, which were inserted in the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988,[3] in order to inculcate faith in the credibility of transacting business on negotiable instruments and in the efficacy of banking operations.[4]

B. Understanding the interpretations provided by the Courts

In the case of Modi Cements v. Kuchil Kumar Nandi[5] the court had emphasized on the need for enacting a legislation so as to incorporate the concept of strict liability with regard to the financial instrument used as a means of credit in the business of trade and commerce by providing due sanctity to the instrument so used in the day-to-day business transactions and therefore as a result of the same the Parliament had come up with the amendment to criminalize the said section and brought sections 138- 142 to catering the same. Further, in the case of Dalmia Cement v. M/S Galaxy Trades and Agencies Ltd. & Ors.,[6] the court held that section 138 of NI Act was never enacted with the purpose of protecting unscrupulous drawers who never intended to honor the cheques issued by them but for the purpose of punishing them for their unscrupulous actions and in fact to protect honest men who so dealt with them in a commercial capacity. It can be further said that this section only targets those unscrupulous drawers and not honest persons and therefore there doesn’t exist a need to decriminalize it. The fact that the credibility of cheques were degraded grossly in the past couple of decades was one of the foremost reasons behind the legislative trying to re-establish the credibility and reliability to cheques as a principal form of payment made as an alternative to cash transactions[7] by enacting section 138 which creates a criminal liability on the drawer of the said cheque.[8]

Section 138 of the Act creates a statutory offence relating to dishonour of cheques. If a cheque is dishonoured for reason of insufficiency of funds in the drawer’s account or if it exceeds the amount arranged to be paid from that account, the drawer is liable to be punished with imprisonment for a term which may extend to two years or with fine, which may extend to twice the amount of the cheque, or with both.[9] Section 141 of the Act deals with offences committed by a company.[10] In the case of such an offence, every person who, at the time when the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company itself, are deemed to be guilty of the offence and can be prosecuted and punished. The Explanation to section 141 specifies that for the purposes of the section, a company means “any body corporate and includes a firm or other association of individuals”.[11] In this context, it becomes important to analyse the applicability

II. Applicability of the provisions of the Act on HUF and Trusts

Just like any other individual, body corporate, firm or company, a Hindu Undivided Family (‘HUF’) and a trust make use of negotiable instruments for the purpose of transacting their day-to-day business. However, they have not been specifically brought within the purview of Chapter XVII. On a joint reading of sections 138 and 141 of the Act, it appears that an HUF or trust could be prosecuted under section 141 of the Act only if they were considered to be an ‘association of individuals’ and therefore, a ‘company’ as stipulated in the Explanation thereunder.

A.    Analysing the regulatory frameworks for HUF and Trusts

In India, HUFs are governed by uncodified Hindu law whereas trusts are governed by codified law. While private trusts are governed by a central enactment, the Indian Trusts Act, 1882, public trusts are governed by the respective state enactments. However, the law pertaining to HUFs and trusts are silent as regards their treatment as an ‘association of individuals’.

In 2008, a division bench of the Supreme Court of India passed a judgment in the case of Ramanlal Bhailal Patel & Ors. v. State of Gujarat[12] (‘Ramanlal’) wherein it held that a mere combination of persons or the mere coming together of persons, with a common purpose but without any intention to have a joint venture or to carry on some common activity would not, by itself, convert the two or more persons into a ‘body of individuals’ or an ‘association of persons’. In this judgment the Apex Court emphasized that the co-existence of the volition of the parties and their common object or purpose were the two main defining characteristics of such a body/association. Over the years, the state judiciaries have passed conflicting judgments as regards the treatment of an HUF and a trust as an ‘association of individuals’ and consequently, their treatment under sections 138 and 141 of the Act have also differed.

In 2008, a single judge of the Bombay High Court (Aurangabad Bench) delivered a judgment in Dadasaheb Rawal Co-operative Bank of Dondaicha Ltd. v. Ramesh s/o Jawrilal Jain & Ors.,[13] opined that the expression ‘association of individuals’ used in the Explanation to section 141 would include an HUF, of which the family business was a joint concern and would also include entities such as a club or trust. However, in 2012, a single judge of the Madras High Court dissented from the view expressed therein.

In Abraham Memorial Educational Trust v. C. Suresh Babu,[14] (‘Abraham’) Nagamuthu J. opined that in the case of an HUF, the essential requirements of an ‘association of persons’, as stipulated by the Apex Court in Ramanlal were absent inasmuch as an individual does not become a member of an HUF of his or her own volition but by birth. On the other hand, as regards a trust, Nagamuthu J. observed that those essential requirements did in fact co-exist. The reasoning provided for the same was that in every trust there would be at least one common purpose, which would be the obligation imposed on it and the trustees that would come together to fulfill that purpose, whether by election or nomination, would do so of their own will and volition.[15]

The difficulty faced by the Madras High Court in this case lay in the fact that a trust consisting of a single trustee could not be considered to be an ‘association’ or ‘combination’ of individuals. As a result, a trust consisting of more than one trustee would fall within the ambit of ‘company’ for the purposes of section 141 but a trust with a single trustee would not. Nagamuthu J. observed that the aforesaid treatment of trusts would lead to an absurdity, which ought to have been avoided in order to give force and life to sections 138 and 141 of the Act. In stating so, Nagamuthu J. concluded that a trust, private or public, charitable or otherwise, having either one trustee or more than on trustee would be a ‘company’ for the purposes of section 141 and would therefore, be liable under sections 138 and 141 of the Act. A special leave petition was filed against the judgment in this case, but a division bench of the Supreme Court dismissed the same in limine and without a speaking or reasoned order.[16]

The views expressed in Abraham were relied upon and re-affirmed in 2017, in two cases before Pardiwala J. of the Gujarat High Court.[17] In Shah Rajendrabhai Jayantilal v. D. Pranjivandas & Sons & Ors.,[18] Pardiwala J. surmised that an HUF was not a legal entity, separate and distinct from the members constituting it and therefore, could not be considered to be a ‘company’ under section 141 of the Act. A few months later, in Hakkimuddin Taherbhai Shakor (Trustee) & Ors. v. State of Gujarat & Ors.,[19] Pardiwala J. applied the same principles as laid down by Nagamuthu J. in Abraham and held that a trust, private or public, charitable or otherwise, having either one trustee or more than on trustee would be considered to be an ‘association of individuals’ and therefore, a ‘company’ for the purposes of section 34 of the Drugs and Cosmetics Act, 1940, dealing with offences committed by companies. In the case of Shah Nitinkumar Dhirajlal vs Patel Mahendrakumar,[20] the Gujarat High Court held that that only a Hindu Undivided Family (HUF) is not an ‘association of individuals’ under Section 141 of the Negotiable Instruments Act (NI Act). Hence, only a ‘Karta’ of a Hindu Undivided Family can be prosecuted for the dishonour of a cheque under Section 138 of the NI Act.

In 2019, a contrary view was taken by a single judge of the Kerala High Court in Shibhu K. P. & Ors. v. State of Kerala & Ors.[21] While scrutinizing the judgment in Ramanlal and referring to the provisions of the Indian Trusts Act, 1882, Kumar J. opined that so inasmuch as a trust does not receive any benefit from the trust property and the benefit is received by the beneficiaries individually or by the beneficiaries together with the author of the trust, it cannot be said that trustees are persons who come together for a common action or to achieve some common benefit. In light of this, Kumar J. concluded that a trust was not an ‘association of persons’ or a ‘body of individuals’ and therefore, was not a ‘company’ under section 141 of the Act. It is, however, pertinent to note that the decision in this case does not show that the attention of the Court was invited to the earlier decisions of the Bombay High Court, Gujarat High Court and Madras High Court mentioned hereinabove.

From the discussion above, it is clear that as far as the prosecution of an HUF or a trust under sections 138 and 141 of the Act is concerned, the state judiciaries have differing views and opinions. Although the matter was brought before the Supreme Court by way of a special leave petition against the judgment in Abraham, it was dismissed without a speaking order. In India, it is settled law that in the absence of a speaking or reasoned order, the simpliciter dismissal of a special leave petition does not operate as a declaration of any law and the doctrine of stare decisis as envisaged under article 141 of the Constitution of India is not attracted.[22]

III. The Decriminalisation of Section 138 of the NI Act

The government recently vide its notification tiled “Statement of Reason”[23] announced the proposal to amend section 138 of the NI Act. The said proposal was carried out in furtherance of the objective of easing the doing of business ranking which has been the hallmark of this governments policy coupled with other reasons like unclogging the court system and increasing the overall efficacy of the system as for a matter of fact more than 20% of litigation the court faces pertain to cheque bounce under section 138 of the NI Act.[24] Section 138 of NI Act has been given a criminal overtone despite it being a civil wrong to deter possible defaulters from defaulting as credit is given on trust and good faith and a single act of dishonestly is bound to have ripple effects on the economy as a whole. The government’s proposal has caused widespread debate as to whether the section should be decriminalized or whether it should be left as it is.

In order to better understand the arguments pertaining to the debate of decriminalisation of section 138 of the NI Act, it is pertinent to look into a few things. In the landmark case of Kusum Ingots and Alloys Ltd. v Pennar Peterson Securities Ltd.[25] the Court held that the necessary pre-conditions should be met to constitute an offense under section 138 of NI Act. Section 138 of Negotiable Instruments Act 1881 states and explains Dishonour of cheque for insufficiency, etc., of funds in the account. It defines as follows:

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years’], or with fine which may extend to twice the amount of the cheque, or with both.[26]

A.    Is this policy one step forward and two steps backwards?

The primary objective of giving compensatory relief to the payee of the cheque is essentially civil in nature. Section 138 of the Act, thus, seeks to provide a civil remedy through the criminal justice apparatus. The Supreme Court has on several instances recognised that cheque dishonour cases “are really civil cases masquerading as criminal cases”.[27] Nonetheless, on the other hand, the whole objective of bringing section 138 of the NI Act was to bring efficiency and making sure of liability in transactions operating via cheques in cases of default or wrongdoings on the part of the drawer.[28] The section is against the very idea of protecting any unscrupulous drawer who do not honor their side of the bargain and impose strict liability.[29] Courts have often times opined that the main object of incorporation of this section is to recover money and criminal liability is to be only exercised when faced with a case involving wilful default.[30]

In Meters and Instruments Private Limited and Anr. v. Kanchan Mehta,[31] the Apex Court has observed the nature of offence under Section 138 primarily relates to a civil wrong, and that while criminalising of dishonour of cheques took place in the year 1988 taking into account the magnitude of economic transactions today, decriminalisation of dishonours of cheque of a small amount may also be considered, leaving it to be dealt with under civil jurisdiction. This further highlighted the importance of introducing a criminality angle by imposing two years of imprisonment on dishonour of cheques which acted as a deterrent for drawers from breaching their obligation as the being tagged as a criminal had various social implications. The criminality so added to the section subsequently thereby safeguarded the interests of the drawee against mala fide and fraudulent drawers.

It undoubtedly can be said that the fear of criminal litigation and imprisonment is the precipitating factor behind making timely payments of cheques. It is also the reason why most cases get settled in the initial stages of criminal proceedings and some even before the case is duly instituted before the court as the fear of imprisonment looms over the defaulter/ drawer of such cheques.[32] The proposed law for decriminalization of the section will remove the fear and as a consequence, there is bound to be a steep rise in the number of cases involving such defaults and the original objective of the government, that is unclogging of the court system and ease of doing business ranking will be obviously defeated. Further, cheque as a negotiable instrument will lose its well-founded value and faith in the market. Gradually the trust that was so accorded to cheques will erode and we could see a gradual decrease in the number of transactions that would be carried through the means of cheque as a negotiable instrument.[33]

Even if the section is decriminalised, the cases for dishonour would be filed under civil courts as cases of cheating under section 420 IPC and relevant provisions, which in turn would be a lengthy and costly procedure without adequate relief at the time when needed, in contrast to the summary trials presently undertaken in such cases with are comparatively less time consuming and cost-effective.[34] The government should not completely base its decision in the light of the COVID-19 situation prevailing today, but shall weigh the far-fetched repercussions of decriminalisation section 138 which prime facie appears to be in contrast to the very objective for which the proposal is made. Decriminalising section 138 of the NI Act in totality does not seems very appealing in its entirety and the government should aim at other effective alternatives to reduce the burden of courts alongside with maintaining the integrity of the instruments. The Delhi High Court in Dayawati v. Yogesh Kumar Gosin,[35] encouraged mediation to resolve cheque bounce disputes. Apparently, the cost of proceeding is far lesser when instituted by the payee under section 138 of the NI as compared to when instituted in civil courts. Upon decriminalization of the offense of cheque bounce the holders of such cheques would have to turn to civil courts for any relief, this in turn would add to the workload of civil courts as it will see an exponential rise in cheque bounce cases before it.[36]

Further in criminal proceedings, usually the holder of the cheque may demand an interim compensation of 20% of the total amount of the cheque under section 143A, decriminalization would take away this right of the holders to recover such sums, which it could have been easily obtained under the above- mentioned section in a trial court. The brunt of decriminalization will be mostly faced by poor litigants, employee belonging to the marginalized sections and they would find it extremely difficult to afford costly and time- consuming civil remedies to recover the amount that has been so due to them from the drawer of the negotiable instrument.[37]

On one hand that court has pendency of cases and decriminalizing would help in reducing the piles of cases lying in the court but on the other hand there increases a risk in the business and the credibility of the cheque system will decrease. Fear of imprisonment and litigation charges along with fine were the main factors for timely payments of the cheques. In case the punishment are removed by decriminalising section 138, definitely creditors will have to incur lot of risk.[38] It is true that section 138 has created lots of cases piled up in the court, but decriminalizing it is not the solution. The credibility of the investors would be shaken if there will be no remedy against dishonored cheques. Instead of people taking interest in the investment, other person may take advantage of it. The provisions of section 138 does not allow any person to take any unfair advantage because of the punishment. If there would be no punishment the other person would be free and can take any advantage of the situation. Decriminalizing section 138 would make the creditor more insecure. There would be a cascading effect and the complete system of negotiable instruments would turn futile.[39]

Normally a large number of criminal complaints instituted under section 138 is settled and compounded well before the first date of hearing or in the initial stages of the court proceedings due to fear of imprisonment. Therefore, it can be said that the object and purpose of the offense being criminalized is achieved for most part of cases instituted for criminal prosecution. With the decriminalization of the offense, litigants have to resort to civil courts and its remedies, often instituting a suit for recovery which are time consuming. Even in cases where courts have adjudicated the matter and judgment has been given, the process of obtaining the court decree as well its successful execution will be cumbersome and a long-drawn battle. The alternative remedy involving institution of civil proceedings for cheque bounce cases is not only costly as court fee payable for filing of criminal complaint is lesser[40] as compared to when a case is filed in civil courts but also time consuming.[41]

On one hand, it can be argued that if the complainant chooses to move only the criminal courts via Section 138 of the Act, the proceedings may not be concluded as expeditiously as required by the Act,[42] and the civil right of action may be lost in the meantime due to the limitation period expiring. This problem came to the fore in R. Vijayan v. Baby,[43] where the criminal case against the accused resulted in the Magistrate levying an inadequate amount of fine, while the limitation period for the civil action expired during the pendency of the appeal from the Magistrate’s judgment. This left the complainant with no means of recovering the cheque amount.

However, per contra, it has also been speculated and rightly so that removal of criminal liability on the commission of the said offense would exponentially increase chances of no recovery and for that matter payment of dues, in the process creating a threat to public security and justice system in the country. It was observed by the Supreme Court in the case Rajesh Laxmichand Udeshi v. Pravin Hiralal Shah[44] that the whole objective of section 138 r/w 139 was to prevent abuse of banking system to commit fraud. The above act of decriminalization will take us back several decades back rather and the progress made till now in the banking system will go in vain.[45] It also has to be understood that the dishonor of cheque by a bank leads to incomputable loss[46] both for the payee and the business environment in the nation and abroad and many businesses and its operations is affected and disturbed as a result of it, causing both irreparable loss and setback as the whole reliability of the business deal is affected both within and outside the nation.[47]

IV. Conclusion

Since the criminal liability associated with the dishonor of checks has been extinguished now, there has been constant debate of whether it has been a right step. The Indian judicial system has been facing new challenges now and again and has always tackled them with utmost precision. From one side it has been argued that the decriminalized provision would render speedy justice has been one such step that would inspire confidence and create respect for the rule of law among the society at large. The judiciary acting as the guardian of the fundamental rights of the society protects the right to free and speedy trial and thereby, civil disputes for cheque dishonor cases would help in achieving the objective.

Nonetheless, on the other hand, Section 138, if decriminalized, has the potential to withdraw the existing fear of payment, which has been so instilled due to the criminal liability imposed on the drawer of the cheque and also the provision has the capacity to encourage further non- payment of dues.[48] However, a debate that had gone under the radar was of the applicability of the provisions and the liability of HUF and a trust under sections 138 and 141 of the Act. It is very important for the government and concerned ministries to keep the trust in the banking operations of the country and the same can only be achieved when the government shows seriousness and is able to provide due mechanisms for the addressal of such disputes in a time bound manner and providing adequate punishment for the crime which has been committed maliciously and with mala- fide intention by the person concerned.[49]

This also remains to be a source of debate between the State judiciaries, and the Supreme Court, despite having the opportunity, did not delve into the discussion to resolve this conundrum. The dishonour of a cheque causes loss and inconvenience to the payee and causes business transactions to suffer a serious setback. Chapter XVII was introduced in the Act with the aim of restoring the credibility of cheques as a trustworthy substitute for cash payments.[50] In order to bring about uniformity, certainty and consistency in the judicial pronouncements of the country as regards the accountability of an HUF and a trust under sections 138 and 141 of the Act, it is necessary for the Supreme Court to declare binding law in respect of their treatment as an ‘association of individuals’ by exercising its jurisdiction under article 141 of the Constitution of India.

WRITTEN BY- SAURAV KAKRODA, LEGAL INTERN, PRIME LEGAL

REVIEWED BY- RITI GUPTA, LEGAL ASSISTANT, PRIME LEGAL

 

References:

[1] The Negotiable Instruments Act, 1881, No. 26, Acts of Parliament, 1881 [“NI Act”].

[2] Sen Gupta, Negotiable Instruments Act 1881, Kamal Law House 112 (1998).

[3] Law Commission of India, Fast Track Magisterial Courts for Dishonoured Cheque Cases, Report No. 213, http://lawcommissionofindia.nic.in/reports/report213.pdf.

[4] Id.

[5] Modi Cement Ltd. v. Kuchil Kumar Nandi, (1998) 3 SCC 249.

[6] M/s Dalmia Cement (Bharat) Ltd. v. M/s Galaxy Traders and Agencies Ltd., AIR 2001 SC 676.

[7] Gupta, supra note 2, at 450.

[8] Damodar S. Prabhu v. Sayed Babalal H., AIR 2010 SC 1907.

[9] NI Act, supra note 1, § 138.

[10] S. Krishnamurthi Aiyar, Law Relating to the Negotiable Instruments Act, Universal Law Publishing (2012) 12.

[11] Id. § 141.

[12] Ramanlal Bhailal Patel & Ors. v. State of Gujarat, (2008) 5 SCC 449 ¶ 22-32.

[13] Dadasaheb Rawal Co-operative Bank of Dondaicha Ltd. v. Ramesh s/o Jawrilal Jain & Ors., 2009 (2) MhLJ ¶ 7-11.

[14] Abraham Memorial Educational Trust v. C. Suresh Babu, 2012 (5) CTC 203.

[15] Id.

[16] Rajiv Runcie Ebenezer & Ors. v. C. Suresh Babu, Special Leave to Appeal (Crl.) Nos. 6763-64/2012.

[17] Murali Krishnan, Only ‘Karta’ of a Hindu Undivided Family can be prosecuted for dishonour of cheques Gujarat HC, Bar & Bench (2017), https://www.barandbench.com/news/karta-can-prosecuted-dishonour-cheque-huf-not-covered-section-141-ni-act-rules-gujarat-high-court.

[18] Shah Rajendrabhai Jayantilal v. D. Pranjivandas & Sons & Ors.,2017 GLH (2) 328.

[19] Hakkimuddin Taherbhai Shakor (Trustee) & Ors. v. State of Gujarat & Ors., 2017 CriLJ 3143.

[20] Shah Nitinkumar Dhirajlal vs Patel Mahendrakumar, R/SCR.A/2750/2015.

[21] Shibhu K. P. & Ors. v. State of Kerala & Ors., 2019 (3) KHC 1.

[22] Workmen v. Board of Trustees, Cochin Port Trust (1978) 3 SCC 119; Indian Oil Corp. v. State of Bihar (1986) 4 SCC 146l; Supreme Court Employees Welfare Association v. Union of India & Ors. (1989) 4 SCC 187.

[23] Ministry of Finance, Government of India, Decriminalization of Minor Offences for Improving Business Sentiment and Unclogging Court Processes (8th June 2020).

[24] Law Commission of India, supra note 2.

[25] Kusum Ingots and Alloys Ltd. v Pennar Peterson Securities Ltd., (2002) 2 SCC 745.

[26] Id.

[27] R. Vijayan v. Baby, (2012) 1 SCC 260, ¶ 16; see also, Rangappa v. Sri Mohan, (2010) 11 SCC 441.

[28] Palash Taing, Decriminalization Of Criminal Offence Under Section 138 Of Negotiable Instruments Act, 1881, (2020), https://www.mondaq.com/india/crime/966664/decriminalization-of-criminal-offence-under-section-138-of-negotiable-instruments-act-1881.

[29] Sakshi Satnalika, Is Decriminalisation of Section 138 of Negotiable Instrument Act, 1881 a Step Ahead?, Neolexvision Blogs (2020), https://www.aequivic.in/post/is-decriminalisation-of-section-138-of-negotiable-instrument-act-1881-a-step-ahead.

[30] Id.

[31] Meters and Instruments Private Limited and Anr. v. Kanchan Mehta, (2018) 1 SCC 560.

[32] Law Commission of India, supra note 2.

[33] Yashika Saravria, Decriminalising The Offence Of Dishonour Of Cheque: Why Not Desirable?, (2021), https://www.mondaq.com/india/financial-services/955680/decriminalising-the offence-of-dishonour-of-cheque-why-not-desirable.

[34] Satnalika, supra note 29.

[35] Dayawati v. Yogesh Kumar Gosin, (2001) 6 SCC 463.

[36] Satya Prashanth, Critical Analysis of Section 138 of the Negotiable Instruments Act, (2020), http://www.legalserviceindia.com/legal/article-1558-critical-analysis-of-section-138-of-negotiable-instruments-act.html.

[37] Law Commission of India, supra note 2.

[38] Agrima Sharma, Section 138 Negotiable Instruments Act, 1881 – An In Depth Analysis, Mondaq (Oct. 9, 2015), https://www.mondaq.com/india/trials-appeals-compensation/433334/section-138-negotiable-instruments-act-1881–an-in-depth-analysis.

[39] Id.

[40] Law Commission of India Report titled “Fast Track Magisterial Court for Dishonoured Cheque cases”, https://lawcommissionofindia.nic.in/reports/report213.pdf.

[41] Court Fees Act, 1870.

[42] NI Act, supra note 1, § 143(4).

[43] R. Vijayan v. Baby, (2012) 1 SCC 260.

[44] Rajesh Laxmichand Udeshi v. Pravin Hiralal Shah, Appeal (L) No.202 of 2012.

[45] Devansi Desai, Decriminalising Section 138 of Negotiable Instruments Act, 1881: Whether a right manoeuvre to boost the economy?, (2020), http://www.tjprc.org/publishpapers/2-52-1600671345-6IJPSLIRDEC20206.pdf.

[46] Goa Plast (P) Ltd. v. Chico Ursula D’Souza, (2004) 2 SCC 235.

[47] Id.

[48] Sharma, supra note 38.

[49] Desai, supra note 45.

[50] Law Commission of India, supra note 2.

0

Legal recognition to- ‘Battered Women Syndrome’

Articles

Introduction

The battered women syndrome is a psychological condition and describes a pattern of behaviour that develops in victims of domestic violence after suffering long-term abuse. This syndrome can lead to psychological paralysis where the women undergo depression and feel defeated due to continued oppression from her batterer.

In the 1970s Lenore E. Walker explained the psychological state of women who suffer from violence and abuse from their partners. The woman is subjected to long term domestic abuse, verbal harassment, sexual abuse, physical abuse, the threat of punishment etc which affects her psychological state of mind

Domestic violence is considered a social evil under the Indian penal code however no specific provisions are constituting to the battered women syndrome. However, it has been recognized by many state courts and there are helplines available to domestic violence and victims of the battered women syndrome. The judgments pronounced by the judges are mostly in favour of battered women.

Battered women syndrome as a legal defence

The most vital understanding is whether the killing of the abusive partner would amount to murder or can be used as a legal defence most of the case laws have focused on the action of the battered (defendant) that is whether the killing of their husbands have been reasonable or not.

Now under the criminal justice system, the testimonies which supported the existence of psychological trauma suffered by the battered have agreed to use it as a legal defence. In the Indian courts, battered women syndrome has been recognized under the private defence and grace and sudden provocation

Elements of Battered women syndrome

  1. Cyclical violence theory

    This takes place in three stages, it begins with the tension building phase i.e., the tension caused due to physical abuse. Further, the second stage is that the husband becomes uncontrollably violent upon the women and final stage he becomes remorseful. Therefore, the cycle of abuse is complete and ignites a fear within the woman and the next time when the attack occurs, she finally defends herself because it is her only opportunity and ends up killing her partner. The most important question is can be liable under section 300 IPC “Murder”? We will understand how the law treats such an act.

  2. Learned helplessness theory

    The description is that “a state of paralysis gets induced upon the woman by continuous battering which makes her feel perpetually trapped in the relationship”. Due to the abuse, there is a state of helplessness in the woman where she loses all her hope to escape. The response from the woman is to ensure her survival and not escape. This makes her unable to free herself from the abusive control of her partner.

  • Types of abuse that contributes to battered women syndrome
  • Sexual abuse: This includes rape, unwanted sexual contact, and verbal sexual harassment.
  • Stalking: A person uses threatening tactics that cause a person to feel fear and concern for their safety.
  • Physical abuse: Including slapping, shoving, burning, and the use of a knife or gun to cause bodily harm.
  • Psychological aggression: Examples include calling a person name, humiliating them, or coercive control, which means behaving in a way that aims to control the person.
  • Battered women syndrome under the international law

Here we will understand how battered women syndrome has been recognized under international law how it began through justification for the claims of self-defence the most important case laws

  1. R v. Ahluwalia[1]    There was one Kiranjit Ahluwalia an Indian woman who was subjected to 10 years of violence and abuse from her husband and later on was convicted for murdering her husband after setting his feat on fire and he died after 10 days due to the injuries suffered which caused severe burns over 40% of his body, later on, she gave a testimony that she suffered from domestic abuse., physical violence, food deprivation and marital rape.She had fetched some petrol and caustic soda mixture from the garage and mixed it to create napalm, the reason the court convicted her the first time was because creating napalm was not of common knowledge and pre-meditated and had some time to cool off as her husband was sleeping when she created the napalm and due to her broken English and no support from the lawyers she was arrested and charged with murder and was also sentenced to life imprisonment, later on, the case came to the attention of the Southall black sisters who established grounds for a mistrial and her sentenced was reduced and was constituted as manslaughter and not murder.

This case raised awareness worldwide concerning domestic violence and how battered women syndrome can be used as a legal defence especially for the non-English speaking immigrants in western countries. Even the English laws were amended concerning domestic violence.

  1. In –State v Leidholm[2]

    The court held that the “expert testimony was admissible and the court should consider the prior history of abuse suffered by the accused in determining the guilt of the accused”.

  2. In R v Chhay[3]

the husband was killed with a meat cleaver and later the defendant held that she suffered a long term of abuse from her husband and the court held that there is a possibility of a loss of self-control during an abusive relationship even though there has been an absence of a particular triggering incident.

  1. In R v Duffy [4]

    the court emphasized “sudden and temporary loss of control.”  the trial judge left provocation to the jury but erroneously excluded evidence of past sexual abuse of the accused which was relevant to the gravity of the provocation.

  • Battered women Syndrome under the Indian law

The Indian penal code, 1860 has laid down certain general exceptions from sections 96 to 106 where certain crimes committed as exempted from the law or justified by the law due to the circumstances. Section 100 emphasizes private defence and under section 300  the first exception “ Grave and sudden provocation” will also be applicable in the case.

  • The right to private defence

Section 100 indicates certain necessities under which the right of private defence of the body can extend to causing death. When it comes to the situation where the women kill her batterer cannot be easily identified as a private defence. Private defence can only be exercised when there is a reasonable apprehension of danger, to seek relief under this section the battered woman is required to prove that a reasonable apprehension of danger was present and that’s why she caused the death or grievous hurt, now the problem with this is that sometimes the battered women would not be able to prove the conditions under this section that’s why a separate provision for battered women syndrome is required so that no women is oppressed under a batterer. Another main ingredient of private defence is based on the proportionality of a response

    1. R v. Thornton[7]

The husband abused the woman and told her that while she is sleeping he will kill her later due to the battered state of mind the accused stabbed her husband while he was sleeping as she was psychologically paralysed here the circumstances do not satisfy the condition for section 100 and that’s why there is a need for a specific provision for battered women syndrome

2. Malliga v. State by Inspector of Police [8]

the woman was threatened to be murdered by her husband and in her battered state of mind when her husband went to sleep she put an end to his life by dropping heavy stones on him. So in India, there is a need to expand the notion of private defence beyond the immediate physical threat and to include the private defence in case of battered women as they do not kill their batterer in immediate physical self-defence but they kill them to protect their psychological self.

  • Grave and sudden provocation

Under section 300 in the Indian penal code, “Murder”, the first exception to the same is grave and sudden provocation where the death caused by grave and sudden provocation will not be determined as murder but culpable homicide if the offender is deprived of Self Control due to the grave and sudden provocation. Here the battered women can seek relief only when they can prove before the court that she had a loss of self-control which is not always true in the case when it comes to battered women syndrome it is prolonged torture for many years and not a specific incident therefore for a battered woman to seek relief under grave and sudden provocation is difficult another reason as to why the Indian penal code requires a sperate provision for batter women syndrome. The flowing cases indicate where the court reduced the sentence for a battered woman.

  1. Suyambukkani v state of Tamil Nadu [9] 

The wife was facing cruelty from the husband and she was in a battered state of mind to end her misery she decided to jump into the well along with her children however the children died and the women survived and she was charged with murder and attempt for suicide, the High court of madras took into consideration battered women syndrome and her circumstances and reduced her sentence.

  1. Manju Lakra v State of Assam [10] 

The woman was subjected to continuous violence and abuse from her husband, in her battered state of mind, she resisted the violence and took a piece of wood and hit her husband and he later died of injuries and she was charged with murder. However, the Guwahati High Court reduced her conviction to culpable homicide from murder as she was a battered woman. This was the first case to recognize the Nallantangal syndrome in Indian Courts, (Nallathangal syndrome for women who are coerced to commit suicide and kill their kids to escape the misery of the violence they are subjected to).

  • Conclusion

Under Indian jurisprudence, the Battered Women Syndrome has not seen much progress beyond the Nallathangal syndrome. Therefore, the requirement for separate provisions relating to the battered women syndrome is vital the foremost necessity for the Indian law in the matter of Battered Women Syndrome is to recognize the psychological aspect of battered women.

  • FOOTNOTES:

[1] R v Ahluwalia [1992] 4 All ER 889; (1993) 96 Cr App R 133; [1993] Crim LR 63; (1992) 142 NLJ 1159

[2] State v Leidholm 334 N.W.2d 811(N.D. 1983)

[3] R v Chhay (1994) 72 A Crim R

[4] R v Duffy [1949] 1 All ER 932

[5] Stingel v The Queen 1990 171 CLR 312 at 326

[6] Green v The Queen (1997) 191 CLR 334

[7] R v Thornton [1996] 1 WLR 1174

[8] Malliga vs State By Inspector Of Police on 12 September, 2002

[9] Suyambukkani v state of Tamil Nadu LAWS(MAD)-1989-2-14

[10] Manju Lakra vs The State Of Assam on 5 August, 2013 CRIMINAL APPEAL NO. 116 (J) OF 2007

 

ARTICLE BY – A Beryl Sugirtham

Article reviewed by – Riti Gupta, Legal Assistant, Prime Legal

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