Admissibility of Previous Depositions in subsequent proceedings

The general Rule of law of Evidence is that oral evidence must be direct that is to say a fact to be proved by oral evidence must be deposed before the court by one who has first hand knowledge of that fact. This Rule that oral evidence must be direct is incorporated u/s 60 of Evidence Act. Rule makes hearsay evidence or indirect evidence inadmissible. Basis of this Rule is legal necessity. When a person appears in court to depose about a fact of which he has direct or first hand or original knowledge, then (a) his statement can be recorded on oath (b) The party against whom he is deposing in court will have opportunity to cross examine him to test his veracity (c) Such witness if found to be deposing false can be subjected to penalty of deposing false. But if `Hearsay Evidence' being allowed than such witness could not be put on oath neither opposite party will have opportunity to cross examine his testimony because whatever he will say will be based on second hand information or hearsay fact Therefore law insists upon that oral evidence must be direct within the meaning of Section 60 of Act.

Section 33 is another exception to the Rule that oral evidence must be direct. Section 33 of Act provide:

"Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving it in subsequent judicial proceedings or in latter stage of the same judicial proceedings, the truth of fact which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by adverse party or his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the court considers unreasonable:

Provided

that the proceeding was between the same parties or their representatives in interest.

that adverse party in the first proceeding had the right and opportunity to cross examine.

that the questions in issue were substantially the same in the first as in the second proceedings " So previous deposition of witness is relevant u/s 33 for proving the truth of fact stated therein when

(a) That deposition is made in a judicial proceeding or before a person authorised by law to take it.

(b) When proceedings is between the same parties or between their representative in interest.

(c) When the opposite party had right and opportunity to cross examine such witness

(d) When issue in question is substantially the same in both proceeding.

(e) When the witness is dead or cannot be found or is incapable of giving evidence or is kept out of way by adverse party or when whose presence cannot be obtained without delay and expense.

Relevancy of `Confession' in criminal proceeding

 Relevancy of confession in Criminal Trial : Section 24 to 30 of Indian Evidence Act deal with relevancy of `Confession' in criminal proceeding. Term `confession' has not been defined in Indian Evidence Act. Most acceptable definition of term `confession' was given by Privy Council in Pakala Narain Swamy v. Empr. AIR 1939 P.C. 47 Wherein it was observed:

"No statement that contains a self exculpatory matter can amount to confession, if exculpatory statement is of some fact which if true would negative the offence alleged to be confessed.... a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence." Section 24 of Indian Evidence Act says:

"A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appears to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." In Veera Ibrahim v. State of Maharashtra AIR 1976 SC 1167Supreme Court had observed that to attract prohibition enacted in Section 24 of Evidence Act, following facts must be established

(1) Statement in question is a confession

(2). Such confession is made by accused person

(3) It has been made to a person in authority

(4) Confession has been obtained by reason of any inducement, threat or promise proceeding from a person in authority

(5) Inducement, threat or promise, must in the opinion of court be sufficient to give accused grounds which would appear to him reasonable for supposing that by making of it he would gain any advantage or avoid any evil of temporal nature in reference to proceedings against him.

Section 25 of Evidence Act then provide `No confession made to a police officer shall be proved as against a person accused of any offence and Section 26 of Act says `No confession made by any person whilst he is in custody of police officer unless it be made in immediate presence of magistrate shall be proved as against such person. Section 27 of Evidence Act then provides"Provided that when any fact is deposed as discovered inconsequence of information received from a person accused of any offence in the custody of police officer, so much of such information whether it amounts to confession or not as relates distinctly to the facts thereby discovered, may be proved". In Inayatulla v. State of Maharashtra AIR 1976 SC 483 It was observed by Supreme Court that Section 24, 25 and 26 exclude confession under certain circumstance. Section 24 lays down that if the confession appears to have been caused by threat, or promise, or inducement, it cannot be proved. Section 25 lays down that confession made to the police officer cannot be proved against an accused. Section 26 lays down that a confession made by any person while in custody of a police officer to any person other than a Magistrate will not be proved. Section 27 is a proviso, that is, a controlling Section and furnishes an exception to the Rule of excluding the confession. It lays down that a confession is admissible if it leads to the discovery of some fact.

In Jaffar Hussain Dastgir v. State of Maharashtra (1969)2 SCC 872, It was observed "The essential ingredient of Section 27 is that information given by accused must lead to the discovery of the fact which is direct outcome of such information secondly. Only such portion of the information given as is distinctly connected with said discovery is admissible against accused. Thirdly, the discovery of the fact must relate to commission of some offence."

Section 28 of Evidence Act then says "If such a confession as is referred to in Section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court been fully removed it is relevant. Section 29 of the Act says "If such a confession is otherwise relevant it does not become irrelevant merely because it was made under a promise of secrecy or in consequence of deception practiced on the accused person for the person of obtaining it or when he was drunk or because it was made in answer to question which he need not to have answered, whatever may have been the form of those question or because he was not warned that he was not bound to make such confession and that the evidence of it might be given against him." In Rangappa Hanamppa v. State, AIR 1954 Bom 285 Held Section 29 assumes that there is no bar to the admissibility of the confession in question arising from any of the earlier provision i.e. from Section 24 to 26 and it then proceeds to invalidate or negative other positive objections or bars that may be raised against its admissibility. Reference may be made of State of U.P. v. Singara Singh AIR 1964 SC 358. Section 30 of Indian Evidence Act provide that "when more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession."

Article 20-Self Incrimination,Double Jeopardy and Ex-Post Facto

Protection Against Ex-Post Facto Law The Clause (1) of Article 20 : Provides protection to the persons accused of crimes against ex-post-facto law - It prohibits the legislature to make retrospective criminal laws. The first part of clause (1) provides that "no person shall be convicted of any offence except for violation of `law in force' at the time of the commission of the act charged as on offence." This means that if an act is not an offence at the date of its commission it cannot be an offence at the date subsequent to its commission. The protection afforded by clause (1) is available only against conviction or sentence for a criminal offence under ex post facto law and not against the trial. The protection of clause (1) of Article 20 cannot be claimed in case of preventive detention, or demanding security from a person. The prohibition is just for conviction and sentence only and not for prosecution and trial under a retrospective law. The second part of clause (1) protects a person from `penalty greater than which he might have been subjected to at the time of the commission of the offence'. But the accused can take advantage of the beneficial provisions of the ex post facto law. The rule of beneficial interpretation required that ex-post-facto law when is beneficial to the accused is not prohibited by clause (1) of Article 20.

In Shiv Bahadur Singh v. State of U.P., AIR 1953 SC 394 - It was observed that what is prohibited U/Article 20 is only conviction or sentence under an ex post facto law and not the trial thereof, such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to unconstitutional. Article 20(1) in its broad import has been enacted to prohibit convictions and sentences under ex-post facto laws. This article must be taken to prohibit all convictions or subjections to penalty after the Constitution in respect of Ex post facto law whether the same was a post-Constitution Law or a pre-Constitution Law.

In G.P. Nayyar v. State (Delhi Admn.), AIR 1979 SC 602 - Article 20(1) deals with Ex post facto laws though that expression has not been used in the article. Though sovereign legislature has power to legislate retrospectively, creation of an offence for an act which at the time of its commission was not an offence or imposition of a penalty greater than that which was under the law provided violates Article 20(1). All that Article 20(1) prohibits is ex- post facto law and is designed to prevent a person being punished for an act or omission which was considered innocent when done. It only prohibits the conviction of person or his being subjected to a penalty under ex-post facto laws.

(B) Protection Against Double Jeopardy Clause (2) of Article 20 : The clause (2) provides protection to the accused persons against double jeopardy the clause (2) declares that no person shall be prosecuted and punished for the same offence more than once. This clause embodies the common law rule of memo debts vis vexari which means that no man should be put twice in peril for the same offence. If he is prosecuted again for the same offence for which he has already been prosecuted he can take complete defence of this former acquittal or conviction. Article 20(2) embodies the following essentials for the application of double jeopardy rule - (1) The person must be accused of an `offence'. The word `offence' as defined in general clauses Act means `any act or omission made punishable by law for the time being in force; (2) The proceeding or the prosecution must have taken place before a `court' or `judicial tribunal'; (3) The person must have been `prosecuted and punished' in the previous proceeding; (4) The `offence' must be the same for which he was prosecuted and punished in the previous proceedings. Proceedings before departmental and administrative authorities cannot be a proceeding of judicial nature. The clause (2) of Article 20 does not apply where the person is prosecuted and punished for the second time and subsequent proceeding is a mere continuation of the previous proceeding, e.g., in the case of an appeal against acquittal.

In Venkataraman v. Union of India, AIR 1954 SC 375 - It was observed that -

"The roots of the principle which Article 20(2) enacts are to be found in the well established rule of English law which finds expression in the maxim `Nemo debet bis vexari' - a man must not be put twice in peril for the same offence. If a man is indicted again for the same offence in an English Court, he can plead, as a complete defence his former acquittal or conviction or as it is technically expressed, take the plea or `autrefois acquit' or "autrefois convict."

In Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 - It was observed that -

In order to invoke the protection of Article 20(2) there must have been a prosecution and punishment in respect of the same offence before a Court of law or judicial tribunal, required by law to decide the matters in controversy, judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The Article contemplates proceedings of the nature of criminal proceedings before Court of law or a judicial tribunal and the prosecution in this context means initiation of proceedings of a criminal nature before such a Court or tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulated the procedure.

In Vekata Raman v. Union of India (supra) it was observed that the language of Article 20 and the words actually used in Article 20(2) afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of criminal proceeding before a court of law or judicial tribunal and not before a tribunal which entertains a departmental or administrative enquiry even though, set up by a statute but which is not required by law to try a matter judicially and on legal evidence.

In State of Bombay v. S.L. Apte, AIR 1961 SC 578. It was observed that-

"If the offences were distinct there is no question of the rule as to double jeopardy as embodied in Article 20(2) of the Constitution being applicable.

Though S. 26, of the General Clauses Act, in its opening words refers to `the Act or omission constituting an offence under two or more enactments', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute two offences with which a person is charged. This is made clear by concluding portion of the section which refers to `shall not be liable to be punished twice for the same offence.'

The above construction of Article 20(2) of the Constitution and S. 26 of the General Clauses Act is precisely in line with the terms of S. 403(2) of the Criminal Procedure Code.

Where therefore the accused are sought to be punished for the offence under Section 105 Insurance Act, after their trial and conviction for the offence under S. 409, Penal Code, they are not being sought to be punished for the same offence twice but for two distinct offences constituted or made up of different ingredients and therefore the bar of Article 20(3) of the Constitution or of S. 26 of the General Clauses Act, 1897, is not applicable.

(c) Prohibition Against Self Incrimination Clause (3) of Article 20 : The clause (3) provides protection to the accused persons against self-incrimination. It provides prohibition against self- incrimination. Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. This guarantee extends to any person accused of an offence and prohibits all kinds of compulsion to make him witness against himself. In M.P. Sharma v. Satish Chandra [AIR 1954 SC 300] case the court observed that this right embodies the following essentials; (1) It is a right pertaining to a person who is "accused of an offence"; (2) It is a protection against "compulsion to be a witness"; (3) It is a protection against such compulsion relating to his giving evidence "against himself". A person is said to be an accused person against whom a formal accusation relating to the commission of an offence has been levelled which in normal course may result in his prosecution and conviction. It is not necessary that the actual trial or inquiry should have started before the court. In M.P. Sharma Satish Chandra case, it was held that a person, whose name was mentioned as an accused in the FIR by the police and investigation was ordered by the Magistrate, could claim the protection of this guarantee. The protection under Article 20(3) covers not merely testimonial compulsion in a court room but also compelled testimony previously obtained and any compulsory process for production if evidentary documents which are reasonably likely to support the prosecution against him. The compulsory taking of finger impressions or specimen handwriting of an accused would come within the mischief of Article 20(3). But in State of Bombay v. Kathi Kalu [AIR 1961 SC 1808] case the court held that when a person gives his finger impression or specimen writing or signature, though, it may amount to furnishing evidence in the large sense is not included within the expression "to be a witness". Hence, neither seizures made under search warrant, not the compulsory taking of photographs, finger prints or speciman writing of an accused would come within the prohibition of Article 20(3). What is forbidden under Article 20(3) is to compel a person to say something from his personal knowledge relating to the charge against him. The protection under Article 20(3) is available only against the compulsion of accused to give evidence "against himself". But left to himself he may voluntarily waive his privilege by entering into the witness box or by giving evidence voluntarily on request. Request implies no compulsion, therefore, evidence given on request is admissible against the person giving it. To attract the protection of Article 20(3) it must be shown that the accused was compelled to make the statement likely to be incrimination of himself.

Reasonable Classification- Article 14 of Constitution

 Equal protection of laws guaranteed by Article 14 does not mean that all laws should be general in character and universal in application. It does not mean that same laws should apply to all persons. Varying needs of different classes of persons often require separate treatment. In fact, equal treatment in unequal circumstances would amount to inequality. Therefore a reasonable classification is not only permitted but it is necessary if the society is to progress.

Equality is for equals, that is to say, those who are similarly circumstanced are entitled to an equal treatment. The guarantee of equality does not imply that the same rules should be made applicable to all persons in spite of differences in their circumstance and conditions. (Ramesh Prasad Singh v. State of Bihar, A.I.R. 1978 S.C. 327).

So the guarantee of `Equal protection of Law' and Equity before law does not prohibit reasonable classification.

In Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191 - It was observed -

"While Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the objects of the Act under consideration. Article 14 condemns discrimination not only by a substantive law but also by a law of procedure."

Similarly in Vajravellu Mudaliar v. Special Deputy Collector for Land Acquisition, AIR 1965 SC 1017 Supreme Court observed -

Under Article 14 of the Constitution of India the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. But this does not preclude the Legislature from making a reasonable classification for the purpose of legislation. The said classification has to pass two tests, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons and things left out of the group and (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question.

In State of W.B. v. Rash Behari Sarkar (1993) 1 SCC 479 - "Equality means equality in similar circumstances, between same class of persons for same purpose and objective. It cannot operate amongst unequals. But even amongst equals the legislature or executive may classify on distinction which is real. A classification amongst groups performing shows for monetary gains and cultural activities cannot be said to be arbitrary. May be that both groups carry out legislative objective of promoting social and educational activities and, therefore, they are alike but distinction between the two on monetary gains and otherwise is real and intelligible. So long the classification is reasonable it cannot be struck down as arbitrary. Likes can be treated differently for good and valid reasons. The State in treating the group performing theatrical shows for advancement of social and educational purpose, differently, on basis of profit making cannot be said to have acted in violation of Article 14 of Constitution."

The true meaning and scope of Article 14 have been explained by Supreme Court in numerous cases. Principles as laid down inR.K. Dalmia v. Justice Tendulkar, AIR 1958 SC 538 still hold valid ground, which are follows -

(1) A law may be Constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him but not applicable to others, that single individual may be treated as a class by himself.

(2) There is always a presumption in favour of the Constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of Constitutional principles.

(3) It must be presumed that legislature understands and correctly appreciates the needs of its own people, that laws are directed to problem, made manifest by experience and that its discriminations are based on adequate ground.

(4) The Legislature is free to recognise degrees of harm and may confine its restriction to those cases where the need is deemed clearest.

(5) In order to sustain the presumption of Constitutionality the court may take into consideration matters of Common Knowledge, matters of common report, the history of times and may assume every state of facts which can be conceived existing at the time of legislation.

(6) While good faith and knowledge of the existing conditions on the part of the legislature are to be presumed, if there is nothing on the face of law or the surrounding circumstances brought to the notice of the court on which the classification may be reasonably regarded as based, the presumption of Constitutionality cannot be carried to the extent of always, holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations hostile or discriminating legislation.

(7) The classification may be made on different basis e.g., geographical or according to objects or occupations or the like.

(8) The classification made by a legislature need not be scientifically perfect or logically complete. Mathematical nicety and perfect equality are not required.

(9) Article 14 applies to both, the discrimination of the substantive law as well as procedure law. If the classification satisfies the above propositions, the law will be declared Constitutional.

Article 13- Doctrine of Severability ,Eclipse and Waiver

Article 13 of the Constitution lays down as follows :-

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of Part III of the Constitution shall be void to the extent of inconsistency with Part III of the Constitution.

(2) The State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause to the extent of the contravention shall be void.

(3) In this Article, unless the context otherwise requires :-

(a) `law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law;

(b) `law in force' includes laws passed or made by a legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

(4) Nothing in this Article shall apply to any amendment of this Constitution made under Article 368.

Effect on existing laws :- Article 13(1) is prospective in nature that is, they operate from the date of the commencement of the Constitution and not retrospectively. All pre-constitution or existing laws shall be void only if they are inconsistent with the fundamental rights enshrined in Part III of the Constitution.

In Keshwa Madhava Menon v. State of Bombay, AIR 1951 SC 128 proceedings had been started against the appellant for an offence punishable u/s 18 of the Indian Press Emergency Powers Act, 1934 in respect of pamphlet published in 1949. The appellant's contention was that the Act was inconsistent with fundamental rights conferred by the Constitution and therefore it had become void u/Article 19(1) after 26th January, 1950 and the proceedings against him could not be continued. Supreme Court has held that all laws in force at the commencement of the Constitution which are inconsistent with Part-III of the Constitution, shall be void to the extent of inconsistency. Article 13(1) had no retrospective effect but only prospective in its operation.

(A) Doctrine of Severability It is not the whole Act which would be held invalid by being inconsistent with Part III of the Constitution but only such provisions of it which are violative of the fundamental rights, provided that the part which violates the fundamental rights is separable from that which does not isolate them. But if the valid portion is so closely mixed up with invalid portion that it cannot be separated without leaving an incomplete or more or less mingled remainder the court will declare the entire Act void. This process is known as doctrine of severability or separability.

The Supreme Court considered this doctrine in A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27 and held that the preventive detention minus section 14 was valid as the omission of the Section 14 from the Act will not change the nature and object of the Act and therefore the rest of the Act will remain valid and effective. The doctrine was applied in D.S. Nakara v. Union of India, AIR 1983 S.C. 130 where the Act remained valid while the invalid portion of it was declared invalid because it was severable from the rest of the Act. In State of Bombay v. F.N. Balsara, A.I.R. 1951 S.C. 318 it was held that the provisions of the Bombay Prohibition Act, 1949 which were declared as void did not effect the validity of the entire Act and therefore there was no necessity for declaring the entire statute as invalid.

The doctrine of severability has been elaborately considered by the Supreme Court in R.M.D.C. v. Union of India, AIR 1957 S.C. 628, and the following rules regarding the question of severability has been laid down:

(1) The intention of the legislature is the determining factor in determining whether the valid part of a statute are severable from the invalid parts.

(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from the another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid what remains is itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest had become unenforceable.

(3) Even when the provisions which are valid, are distinct and separate from those which are invalid if they form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.

(4) Likewise when the valid and invalid parts of a Statute are independent and do not form part of a Scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of legislature, then also it will be rejected in its entirety.

(5) The severability of the valid and invalid provisions of a Statute does not depend on whether provisions are enacted in same section or different section, it is not the form but the substance of the matter that is material and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein.

(6) If after the invalid portion is expunged from the Statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void as otherwise it will amount to judicial legislation.

(7) In determining the legislative intent on the question of severability, it will be legitimate to take into account the history of legislation, its object, the title and preamble of it.

(B) Doctrine of Eclipse. - The Doctrine of Eclipse is based on the principle that a law which violates fundamental rights, is not nullity or void ab initio but becomes, only unenforceable i.e. remains in a moribund condition. "It is over-shadowed by the fundamental rights and remains dormant, but it is not dead." Such laws are not wiped out entirely from the statute book. They exist for all post transactions and for the enforcement of the rights acquired and liabilities incurred before the commencement of the Constitution. It is only against the citizens that they remain in a dormant or moribund condition but they remain in operation as against non-citizens who are not entitled to fundamental rights.

For solving such a problem, Supreme Court formulated the doctrine of eclipse in Bhikhaji v. State of M.P., AIR 1955 S.C. 781. In this case the provisions of C.P. and Berar Motor Vehicles (Amendment) Act 1948 authorised the State Government to take up the entire motor transport business in the Province to the exclusion of motor transport operators. This provision though valid when enacted, but became void on the commencement of the Constitution in 1950 as they violated Article 19(1)(g) of the Constitution. However, in 1951 Clause (6) of Article 19 was amended by the Constitution (1st Amendment Act) so as to authorise the Government to monopolise any business. The Supreme Court held that the effect of the amendment was to remove the shadow and to make the impugned Act free from blemish or infirmity. It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed. This law was eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed, the law begins to operate from the date of such removal.

(C) Doctrine of Waiver. - Can a person waive his fundamental right ? A reference to the doctrine of waiver was first made inBehram v. State of Bombay, AIR 1955 S.C. 123. While discussing the question of legal effect of a statute being declared unconstitutional, Justice Venkatarama Aiyer gave the opinion that a law, unconstitutional by reason of its repugnancy to a fundamental right which is enacted for the benefit of individuals and not for the benefit of the general public, is not a nullity but merely enforceable and such an unconstitutionality could be waived, in which case the law becomes unenforceable for that individual e.g. the right guaranteed under Article 19(1)(f) is for the benefit of the owners of property and when a law is found to infringe that provisions, it is open to any person whose right has been infringed to waive it, and when there is a waiver there is no legal impediment to the enforcement of the law.

The question of waiver directly arose in Bashesher Nath v. Income Tax Commissioner, AIR 1959 S.C. 149. The petitioner whose case was referred to the Income Tax Investigation Commissioner under Section 5(1) of the Act, was found to have concealed large amount of income. He thereupon agreed at a settlement in 1954 to pay Rs. 3 lacs in monthly installments by way of arrears of tax and penalty. In 1955, the Supreme Court in other cases declared Section 5(1) ultra vires Article 14. The petitioner thereupon challenged the settlement between him and the Commissioner. The main question that arose for consideration was whether or not, the assessee had waived his fundamental right under Article 14 by entering into the settlement. In this case the Supreme Court held "A large majority of our people are economically poor, educationally backward and politically not conscious of their rights. Individually or even collectively, they cannot be pitted against the State Organisations and institutions, nor can they meet them on equal terms. In such circumstances it is the duty of the court to protect their rights against themselves." In the end, the court upheld unanimously that the petitioner could not waive his rights under Article 14 of the Constitution.

Circumstances under which Fundamental Rights can be curtailed or suspended. - The fundamental rights can be suspended or curtailed in the following circumstances :

1. The Parliament can restrict or abrogate by law the fundamental rights in their application to the members of the Armed Forces, of Forces charged with the maintenance of public order with a view to ensure proper discharge of their duties and maintenance of discipline among them. (Article 33).

2. Fundamental Rights can be curtailed or restricted when Martial Law is in force in any area (Article 34).

3. During the period in which the proclamation of emergency is in operation, the rights conferred by Article 19 are suspended (Article 358). Also where a proclamation of emergency is in operation the President may, by order, declare that the right to move any court for the enforcement of such rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of rights so mentioned shall remain suspended for a period during which the proclamation of emergency is in force or for such shorter period as may be specified in the order. An order made as aforesaid may extend to the whole or any part of the territory of India. Every such order shall, as soon as be may be after it is made, be laid before each House of Parliament. (Article 359).

4. All or any of the fundamental rights can be curtailed, suspended or modified by an amendment of the Constitution itself under Article 368.

Rights Of Female Heirs In Dwelling Houses

Section 23 of Hindu Succession Act 1956 provides: "Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein, but the female heir shall be entitled to right of residence therein, provided that where such female heir is a daughter she shall be entitled to right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow."

So Section 23 of the Hindu Succession Act says that it would be wrong on the part of the female heirs to ask for partition of the dwelling house unless the male heirs of intestate choose to divide their respective shares therein. Section 23 has provided two safeguards:

(a) Dwelling house should wholly be occupied by the members of the family of intestate.
(b) Female heirs of intestate shall have a right of residence in dwelling house. However, married daughters have no right of residence in the dwelling house.
However if a married daughter becomes widow, separates from her husband or is deserted by her husband, her right of residence revives.
In Narashimha Murthy v. Smt. Susheela Bai and others, AIR 1996 SC 1826, it was observed that when succession of a Hindu intestate is open his/her class I heirs are entitled at a partition to their respective shares. Succession cannot be post-poned. However, exception has been engrafted by Section 23 respecting tradition of preserving family dwelling house to effectuate family unity and prevent its disintegration by dividing it by meets and bounds------. A female heir's right to claim partition of the dwelling-house does not arise until the male heirs chose to divide their respective shares therein, but till that happens the female heir is entitled to the right to reside therein. The female heir already residing in the dwelling-house has a right to its continuance but in case she is not residing, she has a right to enforce her entitlement of residence in a Court of law. The proviso makes it amply clear that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or a widow. The proviso thus is meant to cover all daughters, the word "daughter" in the proviso is meant to include daughter of a predeceased son, daughter of a predeceased son of a predeceased son and daughter of a predeceased daughter.
It was also observed that, Dwelling house is that house which is in actual, physical inhabited possession of one or more members of intestate's family and if some are absent due to exigencies of service or vacations, the dwelling house remains available to them to re-enter without obstruction or hinderance and on that premise enabling the female heir to assert a right of residence and entery therein. A tenanted house does not fit into this description.

Rights Of Female Heirs In Dwelling Houses

 Section 23 of Hindu Succession Act 1956 provides: "Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein, but the female heir shall be entitled to right of residence therein, provided that where such female heir is a daughter she shall be entitled to right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow."

So Section 23 of the Hindu Succession Act says that it would be wrong on the part of the female heirs to ask for partition of the dwelling house unless the male heirs of intestate choose to divide their respective shares therein. Section 23 has provided two safeguards:

(a) Dwelling house should wholly be occupied by the members of the family of intestate.

(b) Female heirs of intestate shall have a right of residence in dwelling house. However, married daughters have no right of residence in the dwelling house.

However if a married daughter becomes widow, separates from her husband or is deserted by her husband, her right of residence revives.

In Narashimha Murthy v. Smt. Susheela Bai and others, AIR 1996 SC 1826, it was observed that when succession of a Hindu intestate is open his/her class I heirs are entitled at a partition to their respective shares. Succession cannot be post-poned. However, exception has been engrafted by Section 23 respecting tradition of preserving family dwelling house to effectuate family unity and prevent its disintegration by dividing it by meets and bounds------. A female heir's right to claim partition of the dwelling-house does not arise until the male heirs chose to divide their respective shares therein, but till that happens the female heir is entitled to the right to reside therein. The female heir already residing in the dwelling-house has a right to its continuance but in case she is not residing, she has a right to enforce her entitlement of residence in a Court of law. The proviso makes it amply clear that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or a widow. The proviso thus is meant to cover all daughters, the word "daughter" in the proviso is meant to include daughter of a predeceased son, daughter of a predeceased son of a predeceased son and daughter of a predeceased daughter.

It was also observed that, Dwelling house is that house which is in actual, physical inhabited possession of one or more members of intestate's family and if some are absent due to exigencies of service or vacations, the dwelling house remains available to them to re-enter without obstruction or hinderance and on that premise enabling the female heir to assert a right of residence and entery therein. A tenanted house does not fit into this description.

Appointment Of Guardian Of Minor

Where the court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property or both, the court may make an order under the Guardians and Wards Act, 1890, appointing a guardian. In appointing or declaring a person as the guardian of a minor the welfare of the minor shall be the paramount consideration. Section 13 of the Hindu Minority and Guardianship Act, 1956 says:

(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law, relating to guardianship in marriage among Hindus, if the court is of the opinion that his or her guardianship will not be for the welfare of the minor.

In considering as to what will be for the welfare of the minor, the court shall have regard to the age and sex of the minor; the character and capacity of the proposed guardian and his nearness of kins to the minor ; the wishes, if any, of a deceased parent; and any existing or previous relations of the proposed guardian with the minor or his property. If the minor be old enough to form an intelligent preference, the court may consider that preference.

In case of S.L. Mohini v. Virendra Kumar (AIR 1977 S.C. 1389), the Supreme Court held that the welfare of the minor is the supreme consideration for the court. Where the decree of divorce has been passed between husband and wife the interest and welfare of the child is of utmost importance of the court.

The question of appointment by the court, of a guardian can be considered on the application of :-

(1) the person desirous of being or claiming to be the guardian of the minor ; or

(2) any relative or friend of the minor ; or

(3) the Collector of the district or other local area in which-

(a) the minor ordinarily resides; or

(b) the minor holds property; or

(4) if the minor belongs to a class, the Collector who has authority with respect to that class.

Maintenance to Husband or Wife Under Hindu law

                                                                                                                               

                                                                                                                             
Maintenance Pendente lite - 

Section 24 of Hindu Marriage Act 1955 deals with Maintenance pendente lite i.e. maintenance during pendency of litigation. Provision is based on the principle that any party to marriage should not be deprived of taking any relief under the Act only because he or she has less or no means to approach the court or engage the counsel. Section 24 of the Act provides :-

"Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable."

So once either party to marriage has initiated any proceedings under Hindu Marriage Act then during pendency of such proceedings, either party to marriage may demand maintenance and cost of proceedings from other party to the marriage and if this prayer is granted by court, then other party is bound to pay maintenance and cost as directed by court.

In P.S. Krishna Murthy v. P.S. Mahadevi, AIR 1987 A.P. 237 it was observed : A reading of the provision of Section 24 of the Act would adumbrate that the condition precedent for an application under Section 24 is that the spouse, either wife or husband has no independent income sufficient to the spouse for his or her maintenance and of necessary expenses. In determining the quantum regard should also be had to the petitioner's own income and the income of the other spouse in computation of the monthly maintenance payable by the other spouse and that matter was left to court's discretion determine the quantum on the fact and circumstances in such case.

In Jasbir Kaur Sehgal v. Dist. Judge Dehradun, AIR 1997 SC 3397 it was observed that Section 24 of the Act, no doubt talks of maintenance of wife during pendency of the proceedings, but this section cannot be read in isolation and cannot be given restricted meaning, therefore right of wife to maintenance u/s 24 of the Act would include her own maintenance as well as maintenance of her unmarried daughter living with her.

Permanent alimony and Maintenance. -

 Section 25 of the Hindu Marriage Act, 1955, lays down that :

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

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

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


                                                                                                     Shama Sinha
                                                                                                            Advocate