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‘Honour killing’ offenders must be tried as violators of fundamental rights

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“We don’t live in a world in which there exists a single definition of honour anymore, and it’s a fool that hangs on to the traditional standards and hopes that the world will come around him.” –  Joseph J. Ellis

To begin with, the fabric which binds and protects the integrity of this nation as a whole has been tested time and again and one being on the abrupt practice of ‘Honour Killings’. The terms «honour killings» and «honorable crimes» have been used interchangeably to describe the incidents involving the brutality and badgering caused primarily to young couples who intend to marry someone of their own choice[1]  including those who dare to ceasefire the boundaries of “whom to love” set by their family members. Murders like these which are the acts of retribution, usually death, performed generally by the patriarch›s mind as a response to protect and maintain the dignity and pride of the family.  The element which gives rise to such abrupt and feudal practices are the perception or apprehension of bringing dishonor to the society/family by one of their own family members. These barbaric practices have now taken a front pew in our society, resulting in the suppression of inalienable rights, enshrined under Article 21 of the Constitution of India. 

Democracy in Quarantine 

The COVID- 19 pandemic needs no introduction and description now. In India, amid lockdown, an unprecedented event of honour killing was reported from the southern part of India[2] where, M. Sudhakar, 24, was killed by his wife’s father for marrying outside of his caste. Cases surrounding feudal practices in the name of gender, caste, and religion; have demolished the hailed findings and verdicts of the Supreme Court on what we call as the basic feature of the Constitution of India ‘The Rule of Law’. Supreme Court recently delivered another notable judgment wherein the court said that the law will not come to guard any person who in the name ‘honour’ takes a life of another person[3].

 Another, odd practice which has locked the still has a pew especially in rural sectors of the country is the informal system of ‘Khap Panchayats’;  wherein the society and especially the men who consider themselves as the protectors of their culture and family issue severe orders or ‘dikats’ to restrict and remind the realm of love. In the case of Shakti Vahani[4] the apex court of the country categorically laid down stringent guidelines, thereby ensuring protection to young couples against the feudal orders of the Khap panchayats. It further ensured an immediate registration of FIR against such orders andx extended to provide safety, if needed. The ghost which has confined the system of democracy into the four walls is the hinge of traditions vs modernity.

 Pandemic of Caste

 The impact of the caste system has been wide and varied across the country. It has burnt a family of Dalits including kids alive. It has beheaded a person who had ‘dared to contest’ in local body elections. Dalit women continue to be sexually harassed across the country. The list is endless. Honour killings perhaps have the most dreadful impact upon the caste systems in the country today. The Supreme Court judgment of 2006[5] delivered a notable finding on ‘Honour Killing’ and it stated that «There is nothing honorable in such killings, and in fact, they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment», but, it failed to incentivize the government to bring a new code on ‘honour killing’ thereby criminalizing such barbaric, feudal practices at large. Murder in its very name is a heinous crime. Murder in name of caste inevitably murders the principles of Dr. B.R. Ambedkar, who once remarked that if the practice of building and taking shelters in the temples of caste would continue then it will only deteriorate the integrity of this country[6]. But in my notion, the Indian Laws have miserably failed to distinguish between a murder and a caste murder. Honour killings, thus, has proved to be at the top of the list of spate crimes across the country. 

 In the culture of patriarchal control and notions of feudal minds, where women are not free to fall in love with a man of their choice, particularly from different religion or caste, these egregious violations of inalienable rights need to be addressed with utmost caution which will not only provide rigorous punishment to those who consider ‘Honour’ in abysmal killings, but will also break the hornet’s- nest of queer notions.  In the year 2018, the Apex court of the country refused to take note of brutal murder[7]  of a 23-year-old Delhi based photographer by the family members of his girlfriend. Another incident which imbalanced the bedrock of the Rule of Law was the reported murder of Shankar[8], a Dalit man from Coimbatore who daringly fell in love with Kawsalya, an upper-caste Hindu which resulted in an escalation of caste-based violence where a group of men hacked Shankar to death for daring to marry an uppercaste woman without the permission of her family. In 2018, the data available with the National Crime Records Bureau (NCRB) reported that 10,773 people eloped due to the familial denial upon marrying someone of their own choice, suggesting only the number of people who are at risk over distinction in their caste, class, or religion. These distressing instances of killings and feudal practices are only a few out of plethora that has taken place across our country.

 In light of these blatant instances, one question that inevitably strikes down is, whether the government is shunning the desperate need of a stringent code on “honour killing” or is it the question of Who, as to who will take traditional values within the realm of judicial setup.

  A RoadMap for Curbing Menace

 Even if the local governments decide to step on the pedestal by introducing a separate regime on ‘Honour Killing’, it would require it to be enforced effectively. Police cooperation, in India, is yet another glaring issue, instances of outright refusal to register the complaint or perhaps officials harassing the complainant resulting in either withdrawing or not registering the complaint. 

The foremost facet of honour killing which needs utmost consideration is the tracking of honour killing cases across the country. The killings which take place in the name of ‘honour’ are frequently reported by the family members as suicide, the relatives and family members destroy every shred of evidence by immediate cremation of the victim. In 2019, a similar incident of murder of a minor girl by her family members was reported[9]. To control the exponential growth of such practices, one must start with the root cause. ‘Police’ and ‘Public Order’ being the subject matter of the State list, empowers them to make policies or laws on the same, as the case of the State of Rajasthan, in 2019 the Rajasthan Assembly introduced a bill mandating the death penalty for the crimes and practice of ‘Honour Killing’[10]. Such dedicated regimes if gets introduced at the centric level, would not only bolster up the safety of young couples who wish to marry the person of their own choice but would also let us all know the depth of the cavity caused by the distinction in religion and caste.   

The Tool of Amendments 

To construct robust and stringent law on the subject of honour killing, amendments majorly in the areas of Indian Penal Code, 1862, Hindu Marriage Act, 1955, and Evidence Act, 1872 can help in achieving the same. To mention a few, amendment in the definition of Murder under Section 300 of the IPC, must be done with an inclusion of the term ‘Honour Killing’; doing the same would generate more clarity on classification of honour killing cases thereby it would be easy for the justices to punish the victim pursuant to the succinct definition of honour killing. Apart from this, an amendment must also be made under Section 34 of the IPC to the extent of inclusion of the system of ‘Joint Liability’ in the cases of arising out of barbaric orders (dikats) of ‘Khap panchayat’ in order to accord stringent punishments to those to issue dikats along with those who are involved in the execution of such brutal orders.

 Along with these amendments, the offenders of ‘honour killing’ must also be tried as the violators of the fundamental rights facilitated by the Constitution of India to all its citizens. Therefore, the cases of honour killing must be put under constitutional scrutiny in order to ensure the facilitation of inalienable rights especially to every woman who suffers from the patriarch notions of living life and as aptly elucidated by an American poet “There are miles to go before we sleep, miles to go before we sleep”; and hence the only vaccine for this pandemic of caste would be a separate regime on honour killing.

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Legally Speaking

Sir Crawford leaves his aura on golden jubilee in the fraternity

Anu Bhuvanachandran

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Sir James Richard Crawford may not be popular to an undergrad student but will be familiar with the cases he appeared and the cause titles for which he delivered exceptionally marvelous judgements. In a way Sir Crawford live through his contributions rather than the contributions live through him. This was the magic of Crawford’s pen. Many idle soulful corpse sweeps century where Sir Crawford could not and we are unlucky to be bagged by his more contributions to the fraternity.

The reason why Sir Crawford could deliver his contribution being a jurist, an attorney and a judge is just because he found himself limitless. Let us commemorate his contribution right from graduation in Bachelor of Laws Degree in 1971 to the year Sir took his last breath i.e. 2021 which is fifty years.

BEING A JURIST

In the initial years, Sir Crawford handled international law and was appointed at Australian Law Reform Commissions in 1984 where he penned a series of reports on recognition of aboriginal acceptance of customary law, sovereign immunity, patriation and federalization of Admiralty Law and jurisdiction. In the report on Foreign State Immunity Sir Crawford was appointed as the Commissioner in-charge and identified “In the absence of satisfactory arrangements for securing compliance with judgments, the assertion of judicial jurisdiction over a foreign state entails an assertion of the right to enforce any resulting judgment, if it is not complied with, by appropriate means.”

In 1992, Sir Crawford was elected to be a member at International Law Commission where he served as Special Rapporteur to State Responsibility for almost four years and was also in-charge of Draft Statute for International Criminal Court. During this venture some of the notable contributions include “Articles on Responsibility of States for Internationally Wrongful Acts” where foundations of state responsibilities are analyzed and counter measures towards breach of peremptory norms were identified. In 1996, Sir Crawford assumed the directorship of the Lauterpacht Centre for International Law at Cambridge twice i.e. 1997-2003 and 2006-2010. The major juristic contribution in the form of text books and commentaries from Sir Crawford includes “The Rights of Peoples, The Creation of States in International Law, International Law as an Open System, Brownlie’s Principles of Public International Law and State Responsibility”. This is just touching the feather tip of Sir Crawford’s contribution as jurist.

BEING AN ATTORNEY

Sir James Crawford started his practice at the High Court of Australia in 1977 and was later moved to South Wales Bar in 1987 and later engaged as counsel before the International Court of Justice in several cases. He was also the counsel for Australia before the ITLOS and for China before the Settlement Body of WTO in the US- Definitive Anti-Dumping case.

In handling cases, Sir Crawford showed a very unique approach of imputing the cause title to the international history. This can be done only if the intellect, hard work, dedication and passion always go in right proportion. I have tried to discuss few cases where Sir Crawford appeared and paved way to magical decisions from the judiciary.

East Timor (Australia v. Protugal) for Australia Sir Crawford relied on Monetary Gold Removed from Rome 1943 decided by ICJ to establish his argument “the Court would not be able to act if, in order to do so, it were required to rule on the lawfulness of Indonesia’s entry into and continuing presence in East Timor, on the validity of the 1989 Treaty between Australia and Indonesia, or on the rights and obligations of Indonesia under that Treaty, even if the Court did not have to determine its validity.”

Case concerning the Oil Platforms (Islamic Republic of Iran v. United States of America) Sir Crawford appeared as Senior Counsel for Iran and argued “the destruction caused by several warships of the United States Navy, in October 1987 and April 1988, to three offshore oil production complexes, owned and operated for commercial purposes by the National Iranian Oil Company, constituted a fundamental breach of various provisions of the Treaty of Amity and of international law.”

In Pulau Batu Puteh (Malaysia v. Singapore) Crawford appeared as the Senior Counsel for Malaysia and submitted supporting the Malaysia’s sovereignty over Pulau Batu Puteh.

In Maritime Delimitation in Black Sea (Romania v. Ukraine) Crawford appeared as Senior Counsel for Ukraine argued on artificial character of Romania’s two sector approach where he pointed that “Romania then compounds its error by using, as the relevant basepoint on the Romanian side for constructing its equidistance line, the seaward most point on a man-made feature – the Sulina Dyke – which Romania itself concedes, although without giving details, “underwent major extension works from the 1950s until the 1980”.

With regard to Case Concerning Whaling in Antarctic (Australia v. Japan)- Counsel for Australia “The commercial whaling activity prohibited within the Southern Ocean Sanctuary is the same as that prohibited under the commercial whaling moratorium. While the language used in paragraph 7(b) of the Schedule (“commercial whaling”) is not identical to that of paragraph 10(e) (“killing [whales] for commercial purposes”), these are simply two ways of describing the same activity. Both prohibitions regulate the same category of whaling under the ICRW – commercial whaling.”

Ariel Herbicide Spraying (Ecuador v. Columbia)- Senior Counsel for Columbia “It is a key feature of the aerial spraying campaign that it was conducted across the entirety of Colombia, wherever illicit crops were detected. It was not focused on border areas but on Colombian territory.”

Questions relating to the Seizure and Detention of documents and data (Timor-Leste v. Australia)- Counsel for Australia- “Timor-Leste has asserted rights over the Materials, not only in terms of confidentiality and ‘legal professional privilege’ (which, to the extent such rights exist, are qualified by the applicable law and subject to important limitations), but also in terms of ownership, inviolability and immunity (rights which Timor-Leste presents as unqualified and unlimited). The exercise of these rights, both generally and in the specific circumstances of this case, is discussed later in this Counter-Memorial. However, in any case, a necessary predicate to any of the claims listed above is a sufficient factual basis connecting the claimant to the claimed object (a point Timor-Leste now effectively concedes by abandoning claims as to individual items which it now accepts do not belong to it).”

Application of International Convention on Elimination of All forms of Racial Discrimination (Georgia v. Russian Federation)- Senior Counsel for Georgia- “the Russian Federation, through its State organs, State agents, and other persons and entities exercising governmental authority, and through the South Ossetian and Abkhaz separatist forces and other agents acting on the instructions of, and under the direction and control of the Russian Federation, is responsible for serious violations of its fundamental obligations under CERD, including Articles 2, 3, 4, 5 and 6.”

Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (Senior Counsel for Croatia “There are regrettably large number of other persons who are understood to be within the jurisdiction of the FRY (Serbia and Montenegro) and who have not been Landed over to the ICTY, or submitted to trial in the FRY (Serbia and Montenegro) or handed over to Croatia, in respect of acts or illicitly giving rise to genocidal acts occurring in the territory of Croatia and which are the subject of these proceedings.”

Maritime Dispute (Peru v. Chile)- Senior Counsel for Chile- “Peru’s two submissions are logically inconsistent with each other. If the boundary were an equidistance line (which it is not), there could not be any “outer triangle”. The respective maritime zones of the Parties would be coterminous at the end of the equidistance line, and that line would give to Peru the alta mar area”.

BEING A JUDGE

When Sir Crawford left his aura behind, his tenure as member at International Court of Justice was due to expire only in 2024. He was initially served as President of various international tribunals. Let us now go through some historic revolutionary judgements paved modernity to face the dynamic developments at global parlance.

In 2016, Obligations concerning Negotiation relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India) Sir Crawford was one among the judges upheld in favour of India – “The Court therefore concludes that the first objection made by India must be upheld. It follows that the Court does not have jurisdiction under Article 36, paragraph 2, of its Statute. Consequently, it is not necessary for the Court to deal with the other objections raised by India. The questions of the existence of and extent of customary international law obligations in the field of nuclear disarmament, and India’s compliance with such obligations, pertain to the merits. But the Court has found that no dispute existed between the Parties prior to the filing of the Application, and consequently it lacks jurisdiction to consider these questions.”

Further in 2017, Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Sir Crawford was in favour of “The Court observes that the fact that an applicant may have breached a treaty at issue in the case does not per se affect the admissibility of its application. Moreover, the Court notes that Somalia is neither relying on the MOU as an instrument conferring jurisdiction on the Court nor as a source of substantive law governing the merits of this case. Thus, Somalia’s objection to CLCS consideration of Kenya’s submission does not render the Application inadmissible. In the circumstances of this case, there is no need for the Court to address the more general question whether there are situations in which the conduct of an applicant would be of such a character as to render its application inadmissible. In light of the foregoing, the Court finds that the preliminary objection to the admissibility of Somalia’s Application must be rejected.”

In 2018, Sir Crawford favored judgement pronounced against abuse of process or rights in Immunities and Criminal Proceedings (Equitorial Guinea v. France) “The Court concludes that it lacks jurisdiction pursuant to the Palermo Convention to entertain Equatorial Guinea’s Application. The Court further concludes that it has jurisdiction pursuant to the Optional Protocol to the Vienna Convention to entertain the submissions of Equatorial Guinea relating to the status of the building at 42 Avenue Foch in Paris as diplomatic premises, including any claims relating to the seizure of certain furnishings and other property present on the above-mentioned premises. Finally, the Court finds that Equatorial Guinea’s Application is not inadmissible on grounds of abuse of process or abuse of rights.”

In 2019, Certain Iranian Assets (Islamic Republic of Iran v. United States of America) Sir Crawford favored “The Court begins by noting that the United States has not argued that Iran, through its alleged conduct, has violated the Treaty of Amity, upon which its Application is based. Without having to take a position on the “clean hands” doctrine, the Court considers that, even if it were shown that the Applicant’s conduct was not beyond reproach, this would not be sufficient per se to uphold the objection to admissibility raised by the Respondent on the basis of the “clean hands” doctrine. Such a conclusion is however without prejudice to the question whether the allegations made by the United States, concerning notably Iran’s alleged sponsoring and support of international terrorism and its presumed actions in respect of nuclear non-proliferation and arms trafficking, could, eventually, provide a defence on the merits. In light of the foregoing, the two objections to admissibility of the Application raised by the United States must be rejected”

Further in the same year the Jadhav case Judgement was pronounced by the ICJ where Sir Crawford favored “Finds that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017. Rejects the objections by the Islamic Republic of Pakistan to the admissibility of the Application of the Republic of India and finds that the Application of the Republic of India is admissible. Finds that, by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations. Finds that the Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr. Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations. Finds that the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations. Finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention, taking account of paragraphs 139, 145 and 146 of this Judgment. Declares that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.”

In 2020, Appeal relating to the jurisdiction of the ICAO Council under article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia, and United Arab Emirates v. Qatar) Sir Crawford favored “Rejects the appeal brought by the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates on 4 July 2018 from the Decision of the Council of the International Civil Aviation Organization, dated 29 June 2018. Holds that the Council of the International Civil Aviation Organization has jurisdiction to entertain the application submitted to it by the Government of the State of Qatar on 30 October 2017 and that the said application is admissible.”

Again in 2020, the Arbitral award of 3rd October 1899 (Guyana v. Venezuela) Sir Crawford supported “Finds that it has jurisdiction to entertain the Application filed by the Co-operative Republic of Guyana on 29 March 2018 in so far as it concerns the validity of the Arbitral Award of 3 October 1899 and the related question of the definitive settlement of the land boundary dispute between the Co-operative Republic of Guyana and the Bolivarian Republic of Venezuela. Finds that it does not have jurisdiction to entertain the claims of the Co-operative Republic of Guyana arising from events that occurred after the signature of the Geneva Agreement”.

In 3rd February 2021, ICJ passed its judgement on Alleged Violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights (Islamic Republic of Iran v. United States of America) where Sir Crawford favored “Rejects the preliminary objection to its jurisdiction raised by the United States of America according to which the subject-matter of the dispute does not relate to the interpretation or application of the Treaty of Amity, Economic Relations, and Consular Rights of 1955. Rejects the preliminary objection to its jurisdiction raised by the United States of America relating to the measures concerning trade or transactions between the Islamic Republic of Iran (or Iranian nationals and companies) and third countries (or their nationals and companies). Rejects the preliminary objection to the admissibility of the Application raised by the United States of America. Rejects the preliminary objection raised by the United States of America on the basis of Article XX, paragraph 1 (b), of the Treaty of Amity, Economic Relations, and Consular Rights of 1955. Rejects the preliminary objection raised by the United States of America on the basis of Article XX, paragraph 1 (d), of the Treaty of Amity, Economic Relations, and Consular Rights of 1955. Finds, consequently, that it has jurisdiction, on the basis of Article XXI, paragraph 2, of the Treaty of Amity, Economic Relations, and Consular Rights of 1955, to entertain the Application filed by the Islamic Republic of Iran on 16 July 2018, and that the said Application is admissible.”

On 4th February 2021, Crawford favored the judgement of ICJ in Application of International Convention on Elimination of all forms of Racial Discrimination (Qatar v. United Arab Emirates) “In light of the above, the Court concludes that the first preliminary objection raised by the UAE must be upheld. Having found that it does not have jurisdiction ratione materiae in the present case under Article 22 of the Convention, the Court does not consider it necessary to examine the second preliminary objection raised by the UAE. In accordance with its jurisprudence, when its jurisdiction is challenged on diverse grounds, the Court is “free to base its decision on the ground which in its judgment is more direct and conclusive”.

Going just through the arguments and pies of findings will not provide you the full knowledge as to how Sir Crawford’s judgements in ICJ contribute to mitigate the dynamic developments at the global parlance. For the same you need to go through full judgement.

My writeup is just a platform to commemorate this great jurist, noble attorney and a most just and prudent judge. The life of Sir Crawford is the best example for law students, lawyers, judges, jurists and professors to learn how to balance and excel in multiple areas of the same fraternity in the limited span of time.

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Legally Speaking

Filing affidavits by advocates’ clerks impermissible: Orissa High Court

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While reiterating the significance of personal affidavits of parties and their ensuing probative value in smooth administration of justice, the Orissa High Court in a latest, learned, laudable and landmark judgment titled Thabir Sagar vs State of Odisha in BLAPL No. 748 of 2021 whose date of hearing was June 8, 2021 and was delivered on June 18, 2021 has held in no uncertain terms that the practice of Advocate’s clerks filing affidavits on behalf of parties is unacceptable. Such a practice is in gross violation of Rule 26 of the Orissa High Court Rules. It has therefore rightly directed its Registry to ensure that steps are taken forthwith to stop the practice of accepting such affidavits which form part of petitions/applications under the original jurisdiction of the Court.

To start with, a Single Judge Bench of Justice SK Panigrahi of Orissa High Court who authored this leading judgment sets the ball rolling by first and foremost observing in para 1 that, “The petitioner has filed the instant application under Section 439 of Cr. P.C seeking bail in connection with G.R. Case No.951 of 2020 pending in the Court of the learned SDJM, Koraput corresponding to Koraput Sadar P.S. Case No.120 of 2020. The petitioner is accused in connection with the alleged commission of offence punishable under Section 395 of the IPC.”

While dwelling on FIR and arrest made, the Bench then puts forth in para 2 that, “FIR was registered against unknown persons in FIR No.120 of 2020 before Koraput Sadar P.S. Two persons, namely, Dhananjay Nayak and Surendra Sagar, were arrested in connection with the case, during the course of investigation. It is submitted that, thereafter, the petitioner was arrested and taken into custody on 13.11.2020 on the basis of the statement of the abovementioned accused.”

While mentioning about the petitioner’s prayer, the Bench then brings out in para 3 that, “Previous bail applications moved by the petitioner before the learned SDJM, Koraput as well as the learned Additional Sessions Judge, Koraput stood rejected mainly on the ground that some cash has been recovered from some of the co-accused and some of the co-accused are still at large. The learned Judge is of the view that if the petitioner is enlarged on bail, it would hamper the investigation. Aggrieved by the above order, the petitioner has approached this Court.”

What really perplexes the Bench is then stated in para 4 that, “Strangely, we find that the affidavit accompanying the petition has been filed by one Tophan Pradhan who is the advocate’s clerk-incharge. Curiously enough, the advocate’s clerk has sworn that he is looking after the case on behalf of the petitioner. This Court fails to understand as to how an advocate’s clerk can swear an affidavit claiming to be “looking after” a case before this Court in gross violation of the Orissa High Court Rules.”

Needless to say, it is of immense significance to state that the Bench then observes in para 5 that, “An affidavit is an affirmation of truth. It is a willing declaration made in writing, signed by a deponent and accompanied by an oath to prove the veracity of its contents. In India, the law on affidavits is governed by Order XIX of the Code of Civil Procedure, 1908. Further, every High Court, in furtherance of its own requirements from an affidavit, has framed its own Rules. The very essence of an affidavit lies in the fact that the person deposing the same, affirms on oath that all the representations made in the affidavit are true and correct to the best of his knowledge. While it is permissible that if the knowledge is not personal, it can be gathered from other sources (provided details of the sources are mentioned), it is in flagrant violation of rule of law to execute an affidavit without having any knowledge of the averments made therein. Courts rely heavily on affidavits and their ensuing probative value for the smooth administration of justice. Noting the importance of an Affidavit, courts have strongly deprecated the practice of affidavits being sworn by someone who has no knowledge of the facts or who has no means of achieving said knowledge.”

Alarmingly, the Bench then notes with concern in para 6 that, “Recently, it is noticed that there has been a growing trend of advocates’ clerks signing affidavit for applications/petitions/counter affidavits etc. imperviously and oblivious of the contents therein. A Vakalatnama to represent a party in Court is held by an Advocate and the brief is entrusted to the Advocate. The Advocate-client relationship is quite clearly accepted as a fiduciary relationship and the communication is privileged and confidential. It is strictly between the client and the Advocate. Neither the brief nor is the permission to represent a party to be shared by the Advocate with his clerk. An advocate’s clerk signing an affidavit instead of the party himself or a person designated/authorised by the party or the Advocate holding the Vakalatnama is unacceptable and such attempts to subvert the law is impermissible. An advocate’s clerk as defined in The Orissa Advocates’ Clerks Welfare Fund Act, 2008 is as under:

“2 – b) “Advocates’ clerk” means a clerk employed by an Advocate and recognized by such authority and in such manner as may be prescribed and who is a member of an Advocates’ Clerks’ Association;”

An advocate’s clerk, no doubt, renders invaluable assistance in the advocate’s office in various day to day matters including filing, effecting service, coordination etc. Nothing entitles or enables an advocate’s clerk to appear before a Court on behalf of an advocate. Similarly, an advocate’s clerk cannot swear affidavits in a perfunctory manner for petitions/applications on behalf of a party before the court, especially those which include facts beyond his personal knowledge or where he cannot completely explain how he derived knowledge of the facts he has affirmed.

The Courts have always come down heavily on the practice by initiating contempt proceedings where they have discovered that an advocate’s clerk has falsely signed an affidavit. The most recent instance of the same being the order passed by a coordinate bench of this Court, wherein a show cause contempt notice was served on an advocate’s clerk who had sworn an affidavit in a bail application of an accused on the basis of forged medical certificates.”

To put things in perspective, the Bench then while dwelling on affidavit and mentioning the relevant provisions observes in para 7 that, “The relevance of Affidavit is ingrained in both the procedural codes in India. The word “Affidavit” has its roots from a Latin word which literally means to “pledge one’s faith.” It is a written statement from an individual which is sworn to be true and the contents of an affidavit reflect the personal knowledge of the individual making the statement. The Civil Procedure Code deals with the issue in the following terms:

Civil Procedure Code, 1908 – Order XIX – Affidavits:

“3. Matters to which affidavits shall be confined. – (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted:

Provided that the grounds thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hear say or argumentative matter, or copies of or extracts from document, shall (unless the Court otherwise directs) be paid by the party filing the same.”

Similarly, the Orissa High Court Rules, Chapter VI – General Rules regarding Applications and Affidavits provides as follows:

“4. Every petition and every affidavit shall be entitled “In High Court of Orissa” and shall be:

(i) neatly typed on foolscap thick white paper with a margin of five centimetres and shall contain approximately twenty-four lines in each full page and only one side of the paper shall be used;

(ii) couched in proper language; and

(iii) signed and dated either by the petitioner or declarant or his advocate.

Provided that in case where the petition is filed from the judgment or order of a Subordinate Court as in the case of Civil Revision, Criminal Revision and Civil Review and where the facts are borne out by the records of the Court, an affidavit signed and dated by the Advocate’s clerk may be accepted and the parties’ affidavit dispensed with.

(iv) presented either by the petitioner or declarant or his recognised agent or his Advocate or some person appointed in writing in each case by such Advocate to present the same.

14. When the petitioner in any petition or the declarant in any affidavit speaks to any fact within his knowledge he must do so directly and positively using the words I affirm (or make oath) and say.

15. When in an affidavit on an interlocutory application the declarant makes a statement of his belief he shall, if the facts are ascertained-

(i) from another person, give such details of such person as are required by Rule 11;

(ii) from a document or copy of a document, state the source from which it was procured and shall state his belief as to the truth of such fact.

26. No petition or affidavit shall be read or used in the High Court which does not comply with the provisions of this Chapter.””

While underscoring the importance of affidavits and citing the relevant case laws, the Bench then states in para 7 that, “The relevance of Affidavit is ingrained in both the procedural codes in India. The word “Affidavit” has its roots from a Latin word which literally means to “pledge one’s faith.” It is a written statement from an individual which is sworn to be true and the contents of an affidavit reflect the personal knowledge of the individual making the statement. The Civil Procedure Code deals with the issue in the following terms:

Civil Procedure Code, 1908 – Order XIX – Affidavits:

“3. Matters to which affidavits shall be confined. – (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted:

Provided that the grounds thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hear say or argumentative matter, or copies of or extracts from document, shall (unless the Court otherwise directs) be paid by the party filing the same.”

Similarly, the Orissa High Court Rules, Chapter VI – General Rules regarding Applications and Affidavits provides as follows:

“4. Every petition and every affidavit shall be entitled “In High Court of Orissa” and shall be:

(i) neatly typed on foolscap thick white paper with a margin of five centimetres and shall contain approximately twenty-four lines in each full page and only one side of the paper shall be used;

(ii) couched in proper language; and

(iii signed and dated either by the petitioner or declarant or his advocate

Provided that in case where the petition is filed from the judgment or order of a Subordinate Court as in the case of Civil Revision, Criminal Revision and Civil Review and where the facts are borne out by the records of the Court, an affidavit signed and dated by the Advocate’s clerk may be accepted and the parties’ affidavit dispensed with.

(iv) presented either by the petitioner or declarant or his recognised agent or his Advocate or some person appointed in writing in each case by such Advocate to present the same.

14. When the petitioner in any petition or the declarant in any affidavit speaks to any fact within his knowledge he must do so directly and positively using the words I affirm (or make oath) and say.

15. When in an affidavit on an interlocutory application the declarant makes a statement of his belief he shall, if the facts are ascertained-

(i) from another person, give such details of such person as are required by Rule 11;

(ii) from a document or copy of a document, state the source from which it was procured and shall state his belief as to the truth of such fact.

26. No petition or affidavit shall be read or used in the High Court which does not comply with the provisions of this Chapter.””

While citing more relevant case laws to drive home the point, the Bench then envisages in para 8 that, “The importance of affidavits, strictly conforming to the requirements laid out in Order XIX Rule 3 of the Civil Procedure Code, 1908 has been discussed as far back as in 2010 in Padmabati Dasi v. Rasik Lal Dhar (1910) ILR 37 Cal 259, wherein the Hon’ble High Court of Calcutta held as under:

“…We desire to impress on those who propose to rely on affidavits that, in future, the provisions of Order XIX, Rule 3, must be strictly observed, and every affidavit should clearly express how much is a statement of the deponent’s knowledge and how much is a statement of his belief, and the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it would be sage to act on the deponent’s belief….”

The Hon’ble Supreme Court of India confirmed the aforesaid position in State of Bombay v. Purushottam Jog Naik AIR 1952 SC 317, wherein a Constitution Bench, while considering the importance of verification of an affidavit, among others, held as under:

“…We wish, however, to observe that the verification of the affidavits produced here is defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verifications should invariably be modelled on the lines of Order 19 Rule 3 of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed…”

Further, in Barium Chemicals Ltd. v. Company Law Board 1966 (Suppl) SCR 311, the Hon’ble Supreme Court has posited that where evidence was adduced by affidavit, such an affidavit could be verified either on knowledge or from sources but the basis of such knowledge or source of information must be clearly stated. Further, more recently in Amar Singh v. Union of India (2011) 7 SCC 69, the Hon’ble Supreme Court struck a note of caution as under;

“64. This Court wants to make one thing clear i.e. perfunctory and slipshod affidavits which are not consistent either with Order 19 Rule 3 CPC or with Order 11 Rules 5 and 13 of the Supreme Court Rules should not be entertained by this Court. In fact three Constitution Bench judgments of this Court in Purushottam Jog Naik [AIR 1952 SC 317] , Barium Chemicals Ltd.[AIR 1967 SC 295] and A.K.K. Nambiar [(1969) 3 SCC 864] and in several other judgments pointed out the importance of filing affidavits following the discipline of the provision in the Code and the said Rules.”

It is trite law that an affidavit shall always be confined to such facts as the deponent has his own knowledge to prove, except on interlocutory applications, on whose statements of his belief may be admitted, provided that the grounds thereof are stated.”

Quite pertinently, the Bench then hastens to add in para 9 that, “Interestingly, the question of whether an advocate’s clerk is empowered to swear an affidavit was thoroughly discussed in the leading case of Smt. Savitramma v. Cicil Naronha and Anr. 1988 Supp SCC 655, wherein the Hon’ble Supreme Court held that;

“2. …In the case of statements based on information the deponent shall disclose the source of his information. Similar provisions are contained in Order 19, Rule 3 of the Code of Civil Procedure. Affidavit is a mode of placing evidence before the Court. A party may prove a fact or facts by means of affidavit before this Court but such affidavit should be in accordance with Order XI, Rules 5 and 13 of the Supreme Court Rules. The purpose underlying Rules 5 and 13 of Order XI of the Supreme Court Rules is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief as this is relevant for the purpose of appreciating the evidence placed before the Court, in the form of affidavit…If the statement of facts is based on information the source of information must be disclosed in the affidavit.”

“5. The matter does not rest here. The affidavit filed on behalf of the accused in reply to the contempt petition is shocking. The office clerk of the advocate for the accused has filed affidavit on behalf of the accused in reply to the contempt petition. The deponent of the counter-affidavit has verified the affidavit saying that the statements of the case of the accused are true and correct which are based on the records maintained in the office of the advocate and based on the instructions received from the clients. Such an affidavit is wholly improper and inadmissible in evidence and liable to be rejected. What reliance can be placed on an affidavit filed by a person sitting at Delhi and that too a clerk of an advocate practising at Delhi giving reply to the allegations and facts and circumstances existing at Karnataka on the basis of records maintained in advocate’s office at Delhi. The practice of clerks of advocates filing affidavits without a proper verification should be deprecated. As matters before the Apex Court are determined on the basis of the statements contained in affidavits it is the duty of the litigants and the lawyers to file affidavits in accordance with the rules to assist the court in administering justice.”

Furthermore, in Someswar Gogoi v. State of Assam 1988 SCC OnLine Gau 10, the Hon’ble High Court of Gauhati held as under;

“We are of the view that the best person to swear an affidavit is undoubtedly the petitioner himself, and normally an affidavit should be verified by him. In case the petitioner be ailing or infirm he can definitely depute somebody else who is to full know of things whose affidavits would satisfy the mind of the Court about the correctness of the averments; made in the petition. It is too well-known that when a writ petition is filed either the petitioner or somebody being in know of things comes to brief the Counsel. In such a situation it should not be difficult to get the required affidavit verified by such a person. If an Advocate’s clerk has to verify the affidavit, all that he can say is that what has been stated by him relating to the facts of the case is true to the information derived by him either from the petitioner or some tadbir karak. Now, if the petitioner or tadbir karak had come to brief the counsel, we do not find any reason as to why such I a person should not be asked to verify the affidavit. It may be pointed out that provision of Order 19 Rule 3 requires giving of source off information when the fact is not true to the knowledge of the deponent. In such a situation if the advocate’s clerk has merely to say what has been stated by him is true to the information supplied by the petitioner, as he shall have to say unless he has direct knowledge of the facts, the Court would not know whether the information supplied by the petitioner was true to his knowledge, or he himself in turn has derived the same from some other source. An affidavit of an Advocate’s clerk in such a situation cannot inspire full confidence in the mind of the Court about the correctness of the averments made in the petition.”

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It would be apposite to note the following observations made by the High Court of Madras in Tamizhaga Panchalai Thozhilalar Sangam v. The Presiding Officer and Ors 2012 SCC OnLine Mad 3105., :

“23. Though under the Vakalat, an Advocate is authorised to appear and defend the proceeding, has the duty to represent the proceedings, a Party to the lis cannot fix responsibility on the clerk. The brief is not in held in trust, by the advocate’s clerk. Neither the Civil Rules of Practice nor the rules framed by the High Court to regulate the registration of recognized clerk and communicated to the lower courts, enable the pleader’s clerk to file an affidavit on behalf of the litigant. Where the Advocate’s clerk, has committed a bona fide or inadvertent mistake or there is an accidental omission, or typographical error in a pleading by the typist engaged by the pleader in his office, it is the litigant or the pleader, to file an affidavit, explaining the reasons for the said mistake, on the basis of his personal knowledge, or information, as to the facts pleaded. There cannot be any extension of the vakalat given to an Advocate, to a Clerk or to a typist, to any other employee, in the Pleader’s office, to act on behalf of a party. Authorisation given under Vakalat cannot be extended to an Advocate Clerk for the purpose of swearing an affidavit.”

Be it noted, the Bench then minces no words to state in para 10 that, “An affidavit is an accepted mode of placing evidence before the Court. A party uses an affidavit to prove a fact or facts before the Court. Perforce, such an affidavit should always be in accordance with the prescribed Rules. The purpose underlying the Rules is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief. This is relevant for the purpose of appreciating the evidence placed before the Court, in the form of affidavit, in the right perspective. It is for this very reason that a party swearing an Affidavit must disclose as to what facts are true to his personal knowledge, information or belief. If the statement of fact is based on information, such source of information must be disclosed in the affidavit. An affidavit which does not comply with these provisions has no probative value and it is liable to be rejected. An advocate’s clerk who has no personal knowledge of the facts of the case, nor is independently empowered to swear such an affidavit is not permitted in law to file a token and mechanical affidavit. When the Rules clearly lay out the form, content and degree of knowledge required to be included in an affidavit, to ensure the reliability and veracity of the same, any affidavit which is not in strict consonance with the same has to be discarded.”

As is quite ostensible, the Bench then states in para 11 that, “It is clear that Rule 4(iii) of the Orissa High Court Rules contemplates that in cases where this court exercises appellate powers, as in cases involving civil or criminal revision as well as cases where the Court is exercising its power of Review, a specific exception has been made wherein the affidavit by the parties may be dispensed with and the accompanying affidavit can be filed by an advocate’s clerk. This specific exception was made, perhaps, keeping in mind that in certain cases, as aforementioned, the records of the case are already present in the records of the Court. In such a situation, the advocate’s clerk is not required to furnish any additional new information or put forth any original fact. That is the only extent to which such an exception may be made. Since the Rules made by different High Courts have to be in conformity with Order XIX of the CPC, which broadly deals with affidavits, this exception envisaged in the Orissa High Court Rules is restricted in its use.

In all cases arising out of the original jurisdiction of the Court, including any other matter which does not fall under the categories expressly provided for in the proviso to Rule 4(iii), the question of an affidavit being filed by an advocate’s clerk is impermissible and perverse. When a rule provides for an exception, it has to be strictly construed and cannot be diluted.”

What’s more, the Bench then while citing the relevant state rules in para 12 elucidates that, “Furthermore, a perusal of Rule 14 and Rule 15 of the Orissa High Court Rules which lays down how an affidavit is to be framed by the declarant, the Court while accepting the affidavit of a declarant casts a strict responsibility on them to make certain disclosures to ensure that the facts, statements, etc. contained in the affidavit are based on personal knowledge or on belief which can be traced back to its sources. Even then, the affidavit will be subject to Rule 26. Given the fact that a clerk has no means of having any personal knowledge or belief with respect to the facts in an original petition, the question of him being permitted to file an affidavit does not arise. It has rightly been left out in the Rules which specify that only the petitioner/ declarant or an advocate can sign such an affidavit.”

Without mincing any words, the Bench then observes in para 13 that, “This practice of advocate’s clerks filing affidavits is unacceptable. The Registry is directed to ensure that steps are taken forthwith to stop the practice of accepting such affidavits which form part of petitions/applications under the original jurisdiction of the Court, made in gross violation of Rule 26 of the Orissa High Court Rules.”

As a corollary, the Bench then holds in para 14 that, “A conjoint reading of the above-mentioned Rules thereby lead this Court to an irresistible conclusion that:

i. An affidavit must strictly be restricted to the facts that the deponent is able to prove are within his own knowledge;

ii. In certain situations, i.e., in interlocutory applications, if the deponent chooses to rely on other sources on which he bases his belief, the details of such person, document, etc. must clearly be stated and it must be explained how the information was procured;

iii. An affidavit may be presented either by the petitioner, or the declarant or the Pairokar, or advocate or such person as duly appointed in writing only;

iv. If a petition is filed from the judgment or order of a Subordinate Court, where the facts are borne out by the records of the Court, an affidavit signed and dated by the Advocate’s Clerk may be accepted as per Rules; and

v. Any affidavit not in complete compliance with the provisions shall not be relied upon or used.”

Finally, the Bench then holds in the last para 15 that, “In view of the above, this Bail Application being defective, is accordingly dismissed. It is further made clear that any of the observations made in this judgment shall not come in the way of a fair trial of the case, nor shall the trial Court be influenced by these observations. The petitioner can file a fresh Bail Application, if he is so advised.”

Of course, what this brief, brilliant and balanced judgment by Justice SK Panigrahi of the Orissa High Court makes manifestly clear is that advocates clerks cannot file affidavits on behalf of parties on original side as it clearly violates Rule 26 of the Orissa High Court Rules. It has therefore very rightly directed its Registry to ensure that steps are taken forthwith to stop the despicable practice of accepting such affidavits which form part of petitions/applications under the original jurisdiction of the Court. Justice SK Panigrahi very rightly affirmed that, “Given the fact that a clerk has no means of having any personal knowledge or belief with respect to the facts in an original petition, the question of him being permitted to file an affidavit does not arise….An advocate’s clerk cannot swear affidavits in a perfunctory manner for petitions/applications on behalf of a party before the court especially those which include facts beyond his personal knowledge or where he cannot completely explain how he derived knowledge of the facts he has affirmed.”

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LABOUR LAW: ASSESSING LIABILITY AND OBLIGATION OF PRINCIPAL EMPLOYER AND CONTRACTOR

In recent times, there have been sincere attempts to ensure that employees/workers are adequately compensated.

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Employee benefit plans and investment schemes are a vital part of the overall compensation package of employees and acts as an important social security parameter for a large workforce in India. While such benefits surely boost the welfare of the bottom line in the short run, a cohesive employee benefit and investment package ensures prosperity of the organization in the long run inasmuch when the employees feel that the benefits and financial security provided by their job is adequate, they tend to be more productive. Over the last few decades, a huge emphasis has been given by the legislature to these investment schemes and benefits to ensure that the employees / workers are adequately compensated. The Employees’ Provident Fund (“EPF”), the Employees’ State Insurance (“ESI”) and Gratuity have been of particular emphasis and importance in this regard. While separate legislations have been enacted to operationalize the payment / deduction of EPF, ESI and Gratuity, namely the Employees’ Provident Funds & Miscellaneous Provisions Act, 1952 (“EPF Act”), the Employees’ State Insurance Act, 1948 (“ESI Act”) and the Payment of Gratuity Act, 1972 (“Gratuity Act”) respectively, the obligation to make such payments / deductions still remains an issue of concern and contention. In most cases, the Principal Employer attempts to shift the liability of the payment / deduction to the Contractor and vice versa. While there are a line of judicial precedents coupled with the provisions of the EPF Act, ESI Act and Gratuity Act which bring about clarity to the issue of liability, it can be often seen that Principal Employers and/or Contractors attempt to evade this liability by misinterpretation and/ or ignorance of law, thereby resulting in prejudice to the workers and protracted litigations thereafter.

DEDUCTION / PAYMENT OF EMPLOYEES’ PROVIDENT FUND UNDER THE EPF ACT

Section 2(e) of the EPF Act defines ‘employer’ in relation to the EPF Act and includes the owner, occupier and/or the person who has the ultimate control over the affairs of the establishment. Further, Section 2(f) defines ‘employee’ which includes any person who gets, his wages directly or indirectly from the employer and specifically includes any person employed by or through a ‘contractor’. Additionally, paragraph 30 of the EPF Scheme, 1952 (“EPF Scheme”) stipulates that the payment of employee contributions (including Employees’ Provident Fund) and those pertaining to the Contractor, shall be the obligation of the ‘employer’. On a perusal of the aforementioned provisions, it appears that the Principal Employer shall be liable for all PF contributions, including for those belonging to the labourers / workers of the Independent Contractor, particularly in view of paragraph 30 of the EPF Scheme. Further, Section 2(f) includes within its ambit even those persons who are appointed through an Independent Contract, which gives the impression that the Principal Employer would be liable for all statutory disbursements / deductions pertaining to such employees, including PF contributions. However, judicial precedents on the issue have clarified the position in relation to the liability of Principal Employer and the Independent Contractor pertaining to the payment of PF contributions. It has been repeatedly held by Courts that in the event the Independent Contractor operates independently having its own code, it would be liable for the PF deductions / disbursements themselves and such liability cannot be imputed on the Principal Employer. The High Court of Madras in its ruling in The Madurai District Central Cooperative Bank Ltd. v. EPFO [2012 LLR 702], while dealing with a situation where an independent code was allotted to the Independent Contractor, clearly stipulated that the obligation under paragraph 30 of the EPF Scheme would only fall on the Principal Employer in the event the Independent Contractor does not have an independent code. However, when such independent code has been obtained, the independent contractor shall be liable for all PF payments. Similarly, the High Court of Madras in its ruling in Brakes India Ltd. v. EPFO [2015 (2) LLN 233 (Mad.)] while dealing with the aspect of PF deductions / contributions by the Principal Employer and/ or the Independent Contractor wherein the Independent Contractor had an independent PF Code, relied on the aforementioned ruling in Madurai District Central Cooperative Bank Ltd of the High Court of Madras and held the Independent Contractor shall have the liability in relation to the PF payments. Further, the High Court of Punjab and Haryana at Chandigarh in its ruling in Calcutta Constructions Company v. Regional Provident Fund Commissioner and Ors. [2015 (146) FLR 579] has held on similar lines that in the event the Independent Contractor has an independent code, such Independent Contractor shall be liable for the PF contributions and not the Principal Employer.

DEDUCTION / PAYMENT OF EMPLOYEES’ STATE INSURANCE UNDER THE ESIC ACT

 Section 2(9) of the ESI Act has stipulated the scope and ambit of ‘employee’ in relation to the ESI Act and includes anybody who is employed through an immediate employer and who works under the supervision of the Principal Employer. Clearly therefore, pursuant to the aforementioned provision, the workers of the Independent Contractor over which the Principal Employer has control and supervision would fall within the ambit of employee under the ESI Act and their monetary liabilities would have to be taken care of by the Principal Employer. However, the element of ‘supervision’ becomes extremely crucial to determine the liability of the Principal Employer for monetary deductions / disbursements. The Division Bench of the Madras High Court in its ruling in South India Surgical Company v. The Regional Director, ESIC [L.P.A. No. 74/1992], while dealing with an issue relating to ESI disbursements / deductions by the Principal Employer and/or the Contractor, held that when the Principal Employer had no control and supervision over the workers of the Independent Contractor, such workers would not fall within the ambit of Section 2(9) of the ESI Act and accordingly would not be ‘employees’ as per the Act. Clearly therefore, the ESI compliances in relation to such workers would have to be taken care of by the Independent Contractors. A Full Bench of the Madras High Court, thereafter in its ruling in ESI Corporation v. Bethall Engineering Company [C.M.A. (NPD) No. 1765 of 1999], while relying of the aforementioned Division Bench decision of the Madras High Court in South India Surgical Company held that in the event the Principal Employer does not exercise ‘supervision’ over the workers of the Independent Contractor, then such workers would not fall within the ambit of ‘employees’ under Section 2(9) of the ESI Act and the monetary liabilities in relation to the workers would accrue to the Independent Contract in such case. Similarly, the Madras High Court in its ruling in Deputy Director, Insurance No. V, ESIC v. India Pistons Repco Limited [C.M.A. No. 1516 of 2010] held that the liability of ESI would only on the Principal Employer when the Principal Employer controls and supervises the work in relation to the workers of the Independent Contractor, otherwise, such liability would be imputed to the Independent Contractor.

DEDUCTION/PAYMENT OF GRATUITY UNDER THE GRATUITY ACT

 Section 1(3) of the Gratuity Act stipulates the scope of the Gratuity Act and includes within its ambit ‘establishments’ within the meaning of any law and/ or where ten or more employees are employed. Section 2(f) of the Gratuity Act defines ‘employer’ to be the authority having control and supervision of the employees working in the establishments. Further, it is pertinent to note that Section 2(e) of the Contract Labour (Regulation & Abolition) Act, 1970 (“Contract Labour Act”) defines establishment to include any place where any industries, trade, business or manufacture or occupation is carried out. Additionally, Section 2 (vi) of the Payment of Wages Act, 1936 (“Payment of Wages Act”) becomes relevant inasmuch it defines ‘wages’ and includes sums on the termination of the employment of the person. The aforementioned provisions clearly give the impression that the Principal Employer shall be responsible for the payment of gratuity in relation to the workers of the Independent Contractor inasmuch such Principal Employer shall be an ‘establishment’ and liable for wages on termination, which would include gratuity. However, Section 21(4) of the Contract Labour Act stipulates that in the event the Independent Contractor fails to make payment of wages, then the same shall be paid by the Principal Employer which can thereafter be recovered from the Independent Contractor. Accordingly, Section 21(4) of the Contract Labour Act makes it clear that if the primary liability for payment of gratuity to its workers lies on the Independent Contractor, in the absence of which the liability shall lie on the Principal Employer. In the aforementioned context, the Madras High Court in its ruling in Madras Fertilizers Limited v. The Controlliing Authority, Assistant Commissioner of Labour (Gratuity) and Ors. [2003 (97) FLR 275], while dealing with the aspect of gratuity compliances pertaining to the Principal Employer and/or the Independent Contractor, categorically held that in the event the Independent Contractor, who has engaged the workmen does not pay gratuity, then pursuant to Section 21(4) of the Contract Labour Regulation Act, the Principal Employer shall be liable to pay such dues and then recover the same from the Independent Contractor. The aforementioned ruling therefore clearly stipulated that the Independent Contractor, who hires the labourers, shall fall within the ambit of ‘establishment’ in the Contract Labour Act and accordingly the primary liability to pay gratuity would be on such Independent Contractor. In the event such Independent Contract does not fulfill its obligations of paying gratuity, the same shall be fulfilled by the Principal Employer. The Bombay High Court, thereafter, in its ruling in Cummins (I) Limited and Ors. v. Industrial Cleaning Services and Ors. [2017 (1) ARB 705] held on similar lines that in the event the Independent Contractor does not pay gratuity to its workers, the Principal Employer shall pay the same and thereafter recover the amounts from the Independent Contractor. Further, The Madras High Court recently, in its ruling in Superintendent Engineer, Mettur Thermal Power Station v. Appellate Authority, Joint Commissioner of Labour, Coimbatore and Another [(2012) 3 CLR 243], while relying on the decision of the Madras High Court in Madras Fertilizers Limited, held the Principal Employer shall pay the gratuity and recover the same from the Independent Contractor in case of defaults by the Independent Contractor.

CONCLUSION

1. In the light of the aforementioned legal analysis, the following conclusion can be derived in relation to statutory contributions / deductions pertaining to EPF, ESI and Gratuity: i. In the event the Contractor / Sub-contractor has an independent code, the Principal Employer shall not be liable to make PF deductions / contributions pursuant to paragraph 30 of the EPF Scheme and such liability shall be on the Contractor / Sub-contractor. ii. In the event Principal Employer exercises supervision and control over the workers of the Independent Contractor, then such workers would fall within the ambit of Section 2(9) of the ESI Act, and accordingly the ESI liabilities would accrue to the Principal Employer in such case. Otherwise, such liability would be imputed to the Independent Contractor. If the Contractor / Subcontractor has defaulted in its gratuity payments, the Principal Employer shall be liable to make such payments and thereafter recover such amounts from the Contractor / Sub-contractor.

On a perusal of the aforementioned provisions, it appears that the principal employer shall be liable for all PF contributions, including for those belonging to the labourers/ workers of the independent contractor, particularly in view of paragraph 30 of the EPF Scheme. Further, Section 2(f) includes within its ambit even those persons who are appointed through an independent contract, which gives the impression that the principal employer would be liable for all statutory disbursements / deductions pertaining to such employees, including PF contributions.

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Public servants & rule of law: An analysis

A person who does any rash or negligent act which puts the human life or personal safety of others in danger can be punished under Section 336. A negligent act is that act which is committed without taking reasonable and proper care as the circumstances required. Similarly, a rash act is that act which a person commits with the consciousness that harm might be caused to someone by that act but still commits with the hope that it will not.

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With the lockdown opening again, the realization sets in that the second wave of the pandemic came and became a horrifying nightmare come true. India was in international eyes as India recorded lacks of news infections and thousands of deaths every day. The sudden upsurge in cases saw hospitals filled and an acute shortage of oxygen beds, oxygen cylinders, medicines and oxygen concentrators. What we also saw was people losing their loved ones. Everyday praying to not hear of another death. Undoubtedly, to some extent, every individual has his share of responsibility to stay safe. However, the responsibility of the state and its various organs who have duty to manage and foresee the situation is much more. When the second wave came on its peak, sadly the members of State organs instead of fulfilling their responsibilities committed some grossly negligent acts which may fasten criminal liability upon them. We have examined the criminal liability of these state instrumentalities in the view of the conduct of super spreader events, which directly stem out of maladministration.

WHETHER THERE IS ANY IMMUNITY AGAINST CRIMINAL CHARGES

The answer is no. This can be inferred from a judgement of the Apex court wherein it has held that Council of Ministers are public servants within the meaning of Section 21 of Indian Penal Code (IPC) and thus, offences defined under IPC apply equally to Council of Ministers as well as members of Election Commission. However, this immunity is subject to a procedural requirement provided under Section 197 CrPC.

(i) Officials may be held liable under Section 336 and Section 269 of Indian Penal Code, 1860

A person who does any rash or negligent act which puts the human life or personal safety of others in danger can be punished under Section 336. A negligent act is that act which is committed without taking reasonable and proper care as the circumstances required. Similarly, a rash act is that act which a person commits with the consciousness that harm might be caused to someone by that act but still commits with the hope that it will not.

Now let’s see what happened in India, the event of Kumbh Mela Shahi Snan was allowed to happen without following Covid protocols where even Chief Minister of the State was seen without any mask. It was also reported that thousands took the bath in the Ganges without a mask and COVID-19 negative report. All this happened without taking any proper and reasonable care. These facts clearly make the case of a rash and negligent act which endangered the lives of indefinite amount of people.

Then comes the political rallies. Most of the political leaders were found flouting the Covid protocols i.e., not wearing a mask. Election Commission forced the teachers and investigators to perform their duties in the absence of RT-PCR Test. By virtue of Section 32 IPC, the commitment of an offence by performing an act is equivalent to commitment of offence by not taking any action. Thus, the act of members of Election Commission of being mute spectators to the violations of covid protocols by political parties, it makes them liable under Section 336 IPC read with Section 32 IPC.

Proceeding next, a person who commits any act even when he knows that he by that act may spread a disease which is dangerous to life is punishable under Section 269 IPC. It needs no explanation that officials knew that allowing these super spreader activities in the pandemic without following necessary Covid protocols led to the spread of this deadly disease.

It is also important to note here that the “doctrine of contributory negligence” i.e. that the victim too was negligent along with accused does not apply to criminal cases. Thus, the defense that the people in rallies were themselves negligent would not be considered as a legitimate defense if the officials themselves were negligent under these sections.

(ii) Officials can also be made liable under Sections 337, 338 and 304A IPC

Apart from the liabilities mentioned above, if it is proved that any person contracted the disease only from the place of rally or polling station, these officials can be made liable under Section 337 IPC. Further, if the level of infection was so high that it nearly endangered the life of that patient, the officials would be liable under Section 338 IPC. More severely, if it is proved that the person died due to the infection, the officials can be held liable under Section 304A IPC. In fact, the Allahabad High Court has taken judicial notice of the death of 135 persons who were on election duty during Panchayat elections in the State due to Covid-19 because the social distancing norms were not followed at counting areas.

(iii) Liability under Disaster Management Act, 2005

Clause (b) of Section 51 of the Act may also make them liable because they have not followed the directions issued by Government under this Act. The Union Home Ministry has mandated the strict compliance of wearing masks in public places. The refusal of the wearing of masks by the officials in elections may make them liable under this provision.

Further, Section 55 further makes the heads of Department liable if any offence is committed by a specific department. The conduct of the Election Commission which did not mandate the RTPCR tests during elections makes its officials liable under Section 55 of the Act.

CONCLUSION

Clearly, the facts show incidents of clear injustice to the people. The question arises what can be done? The apex court may take action on its own against the officials if it is of the opinion that injustice has been caused to public. Additionally, anyone can also file PIL in Supreme Court under Article 32 or High Court under Article 226 of the Constitution to remedy the injustice caused because of the deprivation of right to life guaranteed under Article 21 of the Constitution. The courts have now become chief social activists by giving interest to society’s paramount importance and instituting legal actions against the criminal acts happening in the country to protect the rights of its citizens. It’s the time for courts to exercise that power.

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Forum shopping: Responsibility to recuse, but when

The problem of forum shopping can be congruously solved by the very judge who has been requested to recuse by his deliberation upon the matter on the basis of facts presented whether his recusal is appropriate for the case or whether the application for his recusal reeks malice. Further impetus can also be provided toward curbing the practice of forum shopping by penalising such litigants and their counsel for their effort toward perversion of the course of justice.

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Litigant cannot be permitted to browbeat the court by seeking a Bench of its choice.

Justice M.R. Shah

INTRODUCTION

Judges like other human beings are at times prone to succumb to their emotion while delivering their judgment instead of applying proper and sound reasoning to substantiate their decision. While most of the time it goes unnoticed, there are instances when it becomes too evident to be ignored by arguing counsel and justice seeking client before his bench. This change in heart while delivering judgement can be attributed to their prior personal or incidental experience of the Judge. While this unintended bias is possible this is not the case all the time. Such instances are used as a means to secure a judge who has a lenient attitude towards the litigant’s case. This practice of securing a more compassionate judge toward for the litigant is called forum shopping.

While, forum shopping predominantly relates to selection of country on the basis of laws in international transaction which appears more favourable in nature, this concept has now seeped into our own municipal legal system with clients trying to have their case presented before a judge who is considered more inclined to deliver judgement in favour of him or his class of litigant. The concept of forum shopping does not find any place in our statute books but numerous precedents and judgements delivered by Hon’ble Supreme Court and numerous High Courts has composed a basic jurisprudence around it.

SUPREME COURT AND HIGH COURTS’ VIEW ON THIS ISSUE

Justice Gautam Patel of Bombay High Court in the recent case of Raja Mahendragir & Anr v Shankuntaladevi Shankar Puri, came down heavily on the litigant seeking his recusal on the ground that his client will never get justice from him. The contention of litigant and his counsel were on flimsy grounds comprising of a string of judgements delivered on similar matter by him against a class of litigant to which the present litigant belonged. In his application requesting for recusal, he stated that,

“From the orders passed by the Honourable Justice G.S. Patel till this day as well as his way of working of not giving to the real heir enough opportunity to collect the necessary documents, I have become absolutely certain that I will never get justice from him. Hence, our aforesaid matter may kindly be transferred from his Court to some other Court as we have no faith in him.”

Thus, it was an identifiable trend in the Judge’s judgement (whether the trend identified by the litigant was erroneous or not the author does not wish to comment) which prompted the litigant to seek his recusal which was ultimately dismissed.

The Hon’ble Supreme Court has not just disapproved such practice but also depreciated it considering the effect it evidently has on the image of the impugned Judge and the Judiciary as a whole. In the case of M/s Chetak Construction Ltd. v. Om Prakash & Ors, the court deliberated upon the issue at length and remarked that litigants endeavour for forum shopping cannot be allowed by courts in the interest of impartial justice delivery system. The court further opined that, “A litigant cannot be permitted choice of the forum and every attempt at forum shopping should be crushed with a heavy hand”. The court in the aforementioned case categorised a set of acts which can be considered as forum shopping. Primary among them were.

Requesting the concerned Judge to recuse himself on flimsy grounds of conflict of interest.

In cases where the presiding Judge has a conflict of interest and has an inherent interest in the output of the case, he is required to recuse himself from the bench deliberating upon it. This is because; there is a possibility that the Judgement delivered by the Judge might be biased. While this rule is an unwritten one governed by good conscience and moral rectitude of the Judge, at times, this rule is used by litigants to have a judge recused from the case who has a record of delivering judgements not in favour of litigant belonging to particular class. Such instance puts the Judge in a state of topsy turvy where the Judgement he will be delivering at a future date will most probably be brought to question for its healthfulness.

By stipulating the valuation of suit in manner which put it before a judge or court of preferable jurisprudential standing.

One other way to have the case brought before a favourable court is to have the valuation according to the requirement of the preferred court. The jurisdiction of a court is determined by the plaintiff’s valuation in the plain. For instance under Andhra Pradesh Civil Courts (Amendment), Act, 2018, a case amounting to 20 Lakh Rs will be presented before Junior Civil Judge, cases amounting to between 20 Lakh to 50 Lakh Rs will be before Senior Civil Judge and cases amount to above 50 lakh will be before District Court. The litigant in such a situation will be within his right to stipulate the valuation in his Suit at such amount on reasonable grounds in order that his case may be presented before a judge or class of judge who is more likely to deliver judgement in his favour.

Appeal to superior court on not attaining a favourable Judgement

While this category cannot be considered as a mode of forum shopping per se but it has been used by litigants to have a critical judgement overturned on appeal in favour of him.

The principle laid down in the case of M/s Chetak Construction Case was further reiterated in the recent case of Neelam Manmohan Attavar v. Manmohan Attavar by a division bench of Hon’ble Supreme Court.

The law in this realm was succinctly laid down in the case of Seema Sapra v. Court on its own Motion wherein the court drew support from the Schedule Three of Indian Constitution which provides Oath of Judge for Judges of High Courts and Supreme Court requiring them to duly and faithfully perform the duties of the office they are upon to enter without fear and ill will. The Supreme Court considered the judge’s succumbing to such pressure to recuse from delivering judgement as not fulfilling the very oath they took will entering the coveted office to render service to the people.

In the very case of Seema Sapra, while it was being heard by the High Court of Delhi, a total of 28 judges had to recuse from hearing the case for one reason or another. Furthermore, even at the Supreme Court three judges had to recuse themselves from hearing it on grounds of conflict of interest. Such instance led to imposition of undue burden on the already over burdened courts which are required to hear hundreds of cases every single day.

SOLUTION TO THE PROBLEM OF FORUM SHOPPING

Their cannot be an absolute solution to this nodus of forum shopping. The solution to it lies with the decision of concerned judge on whether he will recuse himself or not. One has to keep in mind that recusal is matter own choosing for the concerned judge. It is open to him to either reject the application for his recusal or to accept it. While an impartial judge is quintessential to the justice deliverty system in our country or for that matter any other country, it is oblivious duty of the concerned judge to discharge the responsibilities he has been bestowed with.

The problem of Forum Shopping can be congruously solved by the very judge who has been requested to recuse by his deliberation upon the matter on the basis of facts presented whether his recusal is appropriate for the case or whether the application for his recusal reeks malice. Further impetus can also be provided toward curbing the practice of forum shopping by penalising such litigants and their counsel for their effort toward perversion of the course of justice. Such penalty will ensure that the litigants and their counsels are aware of possible ramification of their misadventure if it gets exposed before the court.

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Obligation of a father to maintain his son will not come to an end when he attains majority: Delhi High Court on Section 125 of CrPC

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In a brilliant, balanced, bold and brief judgment titled Urvashi Aggarwal & Ors vs Inderpaul Aggarwal in CRL.REV.P. 549/2018 & CRL.M.A. 11791/2018 (Stay) delivered on June 14, 2021, the Delhi High Court has minced no words to make it clear that the obligation of a father to maintain his son under Section 125 of CrPC would not come to an end when the son attains the age of majority after reasoning that the entire burden of his education including other expenses would fall entirely upon the mother. A single Judge Bench comprising of Justice Subramonium Prasad who delivered this extremely learned, laudable and landmark judgment directed that a sum of Rs 15,000 per month is to be given as interim maintenance to the mother from the date of the son attaining majority till completion of his graduation or starts earning, whichever is earlier. The Court observed that, “It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority.” It also did not shy away from observing that, “The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter.”

To start with, Justice Subramonium Prasad of Delhi High Court who authored this notable judgment first and foremost sets the ball rolling by observing in para 1 that, “The present revision petition is directed against the order dated 21.04.2018, passed by the Additional Principal Judge, Family court, Tis Hazari, Delhi, declining maintenance to the petitioner No.1/wife and granting maintenance only to the petitioner Nos.2 and 3 herein.”

While elaborating on the facts of the case, the Bench then puts forth in para 2 that, “The facts leading to the present petition are as under:

a) The petitioner No.1 got married to the respondent herein on 11.11.1997. Out of the wed-lock two children i.e. the petitioner Nos. 2 and 3 were born on 14.8.2000 and 14.8.2002 respectively.

b) Disputes arose between petitioner No.1 and the respondent herein. Petitioner No.1/wife filed a petition under Section 125 Cr.P.C for grant of maintenance.

c) The respondent/husband instituted a suit for divorce. d) During the pendency of the divorce petition, the petitioner No.1 filed a petition under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance. The Family Court declined maintenance to the petitioner No.1 and granted maintenance of Rs.7,000/- per month to the two children which was later enhanced to Rs.13,000/- per month.

e) A decree of divorce was granted on 28.11.2011.

f) The petitioner No.1 filed MAT. APP. No.6/2012 challenging the decree of divorce, which is pending before this Court. This Court vide order dated 25.03.2015 directed the respondent to pay maintenance of Rs. 15,000/- each to the respondent Nos.2 and 3.

g) The respondent has married again and has got a child from the second marriage.

h) A perusal of the material on record shows that the petitioner No.1 and the respondent are both Government employees. The petitioner No.1, at the time when the impugned order was passed, was working as an Upper Divisional Clerk in Delhi Municipal Corporation and the respondent is working as a Joint General Manager (HR) with the Airports Authority of India. The monthly income of the petitioner No.1, in the affidavit filed by her in the year 2016, is shown as Rs.43,792/- per month and she has stated that her monthly expenditure is Rs.75,000/-. She also stated that her net income is Rs.37,762/- per month. On the other hand, according to the affidavit dated 06.02.2016, filed by the respondent, he was earning a gross salary of Rs.96,089/- per month.

i) The petitioner No.1 moved an application for grant of interim maintenance claiming a sum of Rs.40,000/- per month. The learned Family Court after considering various factors came to the conclusion that since the petitioner No.1 is earning sufficiently for herself, she is not entitled to any maintenance. As far as petitioner Nos. 2 and 3 are concerned, the learned Family Court apportioned the income of the respondent into 4 shares, out of which two shares have been given to the respondent and one share each i.e. 25% has been given to the two children. Out of 25% for each children, as directed by the Family Court, the respondent had to pay 12.5% to each of the child out of his gross income less minimum statutory deductions which were to be computed by the employer of the respondent. The learned Family Court has said that the petitioner No.2 i.e. the son of the parties would be entitled for maintenance till he attains the age of majority and the petitioner No.3 i.e. the daughter would be entitled for the maintenance till she gets employment or gets married whichever is earlier. The learned Family Court further said that since the respondent has to maintain his son, born from his second marriage, it was directed that from the date of birth of his son from the second marriage, the share of the respondent shall be 10% each for 2 kids, from the wedlock with the petitioner No.1, as his entire salary was apportioned to five shares (two for the respondent, one each for the three kids). It has been held that since the second wife of the respondent herein is also working, she has the liability to bear 50% of the cost of her son, thereby making the share of the respondent herein as 10% towards the child from the second marriage. The order dated 21.04.2018, reads as under:

“8. Interim maintenance to petitioner no. 1 is declined at this stage as she is able bodied and earning sufficiently for herself and as regards the standard of living behoving with the status of the respondent, the same are questions of fact and triable issues and would be looked into when it would be decided finally after trial whether petitioner no. 1 is entitled for maintenance or not.

9. As regards petitioner no. 2&3 are concerned, the income of the respondent has to be apportioned in four shares @25% i.e. two for himself and one each for the children and from that 25% share for each kid 50% thereof has to be contributed by the respondent for each kid. So the respondent is liable to pay 12.5% each to both the children as his share out of his gross income minus minimum statutory deductions which would be computed by the employer of the respondent However, amount of reimbursement obtained by the respondent for which he has spent from his own pocket will not be calculated for the purposes of apportionment of the share in favour of the children. The petitioner no. 2 and 3 would be entitled to 12.5 % each per month as share of the respondent in the aforesaid manner from the date of application till the pendency of the case. The son of the parties shall be entitled for the maintenance till he attains the age of majority and the daughter till she gets employment or gets married whichever is earlier. The respondent has no liability to maintain his mother-in-law and sister-in- law being under no such legal obligation. The mother of the respondent being pensioner as father of the respondent was a government employee, the respondent has no obligation to maintain her financially. 10. Since the respondent in this case has the liability to maintain his son born from his present wedlock it is ordered that from the date of birth of his son from second wedlock the share of the respondent shall be 10% each for 2 kids from the wedlock with the petitioner as his entire salary in the above terms needs to be apportioned to five shares (two for the respondent, one each for the three kids). Each shares comes to 20%. The second wife of the respondent being also working has the liability to bear 50% for son thereby making the share of the respondent as 10% for the son from second wedlock.”

j) It is this order which is under challenge in the instant revision petition.

k) It is pertinent to mention here that a number of petitions have been filed by the parties against each other. This Court is not dwelling into the details of those petitions since they are not relevant for the present proceedings.”

On the one hand, the Bench then points out in para 3 that, “The learned counsel for the respondent has taken the primary objection stating that the present application is not maintainable and is barred under Section 397(2) Cr.P.C inasmuch as the order granting interim maintenance is an interlocutory order. The said argument has been rebutted by the learned counsel for the petitioners.”

On the other hand, the Bench then brings out in para 4 that, “The learned counsel for the petitioners places reliance on the judgment of this Court in Manish Aggarwal v. Seema Aggarwal, 2012 SCC OnLine Del 4816, which reads as under:

“17. Interim maintenance had been granted under Section 125 Cr. P.C. and the issue arose whether a revision petition could be preferred against that order, as it was alleged to be interlocutory in nature. It was held that the order of interim maintenance was an intermediate or quasi final order. Analogy was drawn from Section 397(2) of the Cr. P.C. and the pronouncement of the Supreme Court in Amarnath v. State of Haryana, (1977) 4 SCC 137 : AIR 1977 SC 2185 qua the said provision was relied upon. Thus, an order which substantially affects the rights of an accused and decides certain rights of the parties was held not to be an interlocutory order so as to bar revision. However, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in the aid of pending proceedings would amount to interlocutory orders against which no revision would be maintainable under Section 397(2) of the Cr. P.C. On the contrary, those orders which decide matters of moment and which affect or adjudicate the rights of the accused, or a particular aspect of trial could not be labeled as interlocutory orders. The Madhya Pradesh High Court held that an application for interim maintenance is a separate proceeding, to be disposed of much earlier than the final order in the main case. Qua the said issue the matter is finally decided by the order passed by reference to the second proviso to Section 125(1) of the Cr. P.C. Such orders were, thus, intermediate or quasi final orders. Thus, if an order does not put an end to the main dispute, but conclusively decides the point in issue it can certainly not be said to be an interlocutory order. The judgement drew strength also from the observations of the Supreme Court in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : AIR 1978 SC 47, where the Supreme Court held that ordinarily and generally the expression “interlocutory order” has been understood and taken to mean as a converse of the term final order. But the interpretation, and the universal application of the principle that what is not a “final order” must be an “interlocutory order” is neither warranted nor justified. In V.C. Shukla v. State, 1980 (2) SCR 380 the Supreme Court held that the term “interlocutory order” used in the Cr. P.C. has to be given very liberal construction in favour of the accused in order to ensure complete fairness of trial, and revisional power could be attracted if the order was not purely interlocutory but intermediate or quasi final.

26. We, thus, conclude as under:

(i) In respect of orders passed under Sections 24 to 27 of the HM Act appeals would lie under Section 19(1) of the said Act to the Division Bench of this Court in view of the provisions of sub-section (6) of Section 19 of the said Act, such orders being in the nature of intermediate orders. It must be noted that sub-section (6) of Section 19 of the said Act is applicable only in respect of sub-section (1) and not sub-section (4) of Section 19 of the said Act.

(ii). No appeal would lie under Section 19(1) of the said Act qua proceedings under Chapter 9 of the Cr. P.C. (Sections 125 to 128) in view of the mandate of sub-section (2) of Section 19 of the said Act.

(iii). The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr. P.C. under sub-section (4) of Section 19 of the said Act. (iv). As a measure of abundant caution we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act.” (emphasis supplied)

In view of the above, this issue is no longer Res Integra and stands covered fully in favour of the petitioners and the revision petition is maintainable.”

To put things in perspective, the Bench then puts forth in para 5 that, “It is contended by the learned counsel for the petitioners that after holding that each of the child is entitled to 25% of the amount of the income of the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent. It is contended by the learned counsel for the petitioners that each of the child is entitled to full 25% of the amount of the salary earned by the respondent. It is further contended by the learned counsel for the petitioners that the learned Family Court has also erred in limiting the maintenance to be given to the petitioner No.2/son till he attains the age of the majority. It is contended by the learned counsel for the petitioners that Section 125 Cr.P.C has to be interpreted in such a manner that the object of Section 125 Cr.P.C is achieved. It is further contended by the learned counsel for the petitioners that the responsibility of a father to take care of his child does not cease after the child attains majority if the child is not able to sustain himself.”

As against what is stated above, the Bench then also points out in para 6 that, “Per contra, the learned counsel for the respondent contends that there is no infirmity in the order of the learned Family Court and that it is a well reasoned order. It is contended by the learned counsel for the respondent that the total amount paid by the respondent to the petitioner Nos.2 and 3 till date is about Rs. 29,25,825/- which is much more than the amount which has been directed by the learned Family Court. It is also submitted by the learned counsel for the respondent that apart from the salary, the petitioner No.1 has got several properties and has got income from other sources and is not only confined to her salary.”

Be it noted, after hearing the counsel of both the parties and perusing the material on record as stated in para 7, the Bench then envisages in para 8 that, “The purpose of Section 125 Cr.P.C has been laid down by the Supreme Court in several judgments. The object of Section 125 Cr.P.C is to prevent vagrancy and destitution of a deserted wife by providing her for the food, clothing and shelter by a speedy remedy. The object of Section 125 Cr.P.C is to bring down the agony and financial suffering of a women who left her matrimonial home so that some arrangements could be made to enable her to sustain herself and her child (refer: Chaturbhuj v. Sita Bai, (2008) 2 SCC 316, and Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353).”

Simply put, the Bench then states in para 9 that, “Since the purpose of granting interim maintenance is to ensure that the wife and the children are not put to starvation, the Courts while fixing interim maintenance are not expected to dwell into minute and excruciating details and facts which have to be proved by the parties.”

It would be worthwhile to mention here that the Bench then without mincing any words states in para 10 that, “The contention of the learned counsel for the petitioners that after recording that both the children are entitled to 25% each of the amount of the salary earned by the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent, cannot be accepted. The balance has to be taken care of by the wife i.e. the petitioner No.1 herein, who is also earning and is equally responsible for the child. The respondent has married again and has a child from the second marriage. This Court cannot shut its eyes to the fact that the respondent has equal responsibility towards the child from the second marriage. The further reduction of the amount after the birth of the child from the second marriage of the respondent also cannot be found fault with and the reasoning given by the Family Court does not warrant any interference at this juncture.”

As it turned out, the Bench then holds in para 11 that, “The learned Family Court refused to grant maintenance to the petitioner No.1 herein on the ground that the petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation and is earning sufficiently for herself. The learned Family Court further held that as regards the standard of living which was being enjoyed by the petitioners when the marriage subsided is a question of fact and would be looked into when the case is decided finally after both the parties lead evidence.”

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Finally and far most crucially, the Bench then holds in para 12 that, “The petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation, earning about Rs.60,000/- per month. The records indicate that the respondent has filed his salary certificate which shows that his gross monthly income, as on November, 2020, is Rs.1,67,920/-. The two children are living with the mother. After attaining the age of majority, the entire expenditure of the petitioner No.2 is now being borne by the petitioner No.1. The petitioner No.1 has to take care of the entire expenditure of the Petitioner No.2 who has now attained majority but is not earning because he is still studying. The learned Family Court, therefore, failed to appreciate the fact that since no contribution is being made by the respondent herein towards the petitioner No.2, the salary earned by the petitioner No.1 would not be sufficient for the petitioner No.1 to maintain herself. This Court cannot shut its eyes to the fact that at the age of 18 the education of petitioner No.2 is not yet over and the petitioner No.2 cannot sustain himself. The petitioner No.2 would have barely passed his 12th Standard on completing 18 years of age and therefore the petitioner No.1 has to look after the petitioner No.2 and bear his entire expenses. It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority. The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter. The amount earned by the petitioner No.1 will not be sufficient for the family of three, i.e. the mother and two children to sustain themselves. The amount spent on the petitioner No.2 will not be available for the petitioner No.1. This Court is therefore inclined to grant a sum of Rs.15,000/- per month as interim maintenance to the petitioner No.1 from the date of petitioner No.2 attaining the age of majority till he completes his graduation or starts earning whichever is earlier. The instant petition was filed in the year 2008. The learned Family is directed to dispose of the petition as expeditiously as possible, preferably within 12 months of the receipt of a copy of this order.” It is then held in the last para 13 that, “Accordingly, the revision petition is allowed in part and disposed of along with the pending application.”

In essence, the crux of this notable judgment delivered by Justice Subramonium Prasad of the Delhi High Court is that the obligation of a father to maintain his son will not come to an end when he attains majority and only the mother alone would not maintain her without any contribution by the father just because the son has attained majority! The Court very rightly took into account the rising cost of living and obligated the father to maintain his son till he completes his graduation or starts earning whichever is earlier as this is what is in the best interest of the child and of the family! It is the bounden duty of all the lower courts to abide by this notable judgment in all such similar cases without fail.

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