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WritingLaw.com
 INDEX OF THIS PDF

1. 5 Facts About Constitution

2. Quasi Contracts Explained

Finder’s title is better than everybody except the true owner.
3. Difference Between Public and Private Documents

Case names

How the Public Documents may be proved?
4. Right to Life and Personal Liberty with very Important Landmark Cases

Scope of Article 21
5. Admission Under Evidence Act

Condition for admissibility of Admissions.

Who can make Admissions?

Evidentiary value of Admission
6. Arrest Explained

Arrest and Custody.

Arrest Without Warrant, Medical Examination.

Supreme Court’s 11 important guidelines for all cases of arrest and
detention.
7. CAG Explained

What is it?

What are its Functions and Role?

Current CAG.
8. Can there be Direct Transfer to Unborn Person? Explained.
9. Legal Rights and Duties

8 Classification of Rights.

Theories of Rights etc.
10. Offer under Indian Contract Act

Essential Elements and Kinds of Offer.
11. Constitutional Provisions on Centre State Relations

10 points that show that Centre was made more powerful than States.
12. Difference Between-

a. Complaint and FIR

b. Investigation and Inquiry

c. Inquiry and Trial
13. Difference between Ordinary Witness and Expert Witness
14. Difference between Rioting and Affray

Essentials of Rioting and Affray.
15. Direct and Circumstantial Evidence

Presumption of Law

Presumption of Fact
16. Acceptance in Contract Act

Essentials of Acceptance.

Communication of Acceptance to Wrong Person.
17. 14 Indian Constitutional Features taken from other Countries
18. Information and Investigation

FIR.

FIR On telephone.

Where FIR is lodged.

Delay in filing FIR.

Evidentiary value of FIR.

Confessional FIR etc.
19. What is Fraudulent Transfer in Transfer of Property Act?

Essentials of Fraudulent Transfer.

Burden of Proof.
20. Guardianship in Muslims

Guardianship in Marriage

Guardian of the Body of Minor (Hizanat)

Where wife loses her Right of Custody

Guardianship of minor's property (Wilayat-e-mal)

Kinds, Definition, Persons entitled.

Legal Guardian of Minor’s property.

Guardian appointed by court.
21. How can a New Partner be Introduced in a Firm?

Liability of outgoing partner on death and insolvency.

Minor's position if he becomes a partner.
22. Maintenance of Parents, Wife and Children

Also, When wife is not entitled for Maintenance.
23. Indigent Person under CPC, CrPC and Constitution

How to sue as an Indigent Person?

Procedure if Application Admitted.
24. Inherent Powers of High Courts

Investigation after Chargesheet

Cancellation of Bail by High Court

Quashing of FIR by High Court
25. Lease under Transfer of Property Act

Essential Elements of Lease

Rights and Duties of Lessee and Lessor

Termination of Lease
26. Legitimacy and Acknowledgement in Muslims

Maternity and Paternity how established?
27. Marriage and Divorce

Reasons for matrimonial disputes

Matrimonial Reliefs

Restitution of Conjugal Rights

Judicial Separation
28. What is Caveat and Who may Lodge a Caveat?



29. Mediation and Marriage Counselling
30. Muta Marriage - A marriage mostly for sexual enjoyment.
31. Natural Justice

Types of Bias

Exclusion of Principles of Natural Justice.
32. What is Onerous Gifts in Property Law?
33. Ostensible Owner Defined
34. Ownership and Possession

Kinds of Ownership

Kinds of Possession

Elements of Possession

Definition of Legal Person.

Legal status of unborn child, dead man, animal, idol, mosque, Guru Granth
Sahib etc.
35. Public Interest Litigation (PIL)

Epistolary Jurisdiction
36. Plea Bargaining in CrPC

Who may apply for Plea Bargaining?

Cases where plea bargaining is allowed.

Mutual Satisfactory Disposition.
37. Status and Position of Minor in Partnership
38. Power of Pardon

Difference between Pardoning power of President and Governor.
39. Res Judicata
40. Contract of Bailment

Rights and Duties of Bailee and Bailor.
41. Status of Posthumous Child in Succession
42. 5 Theories of Punishment
43. Trial of Warrant Cases by Magistrate

Trial of Warrant Cases instituted otherwise than on a police report.

Death of complainant in trial.
44. Elements, parties and 6 Kinds of Mortgage
45. What is Void Marriage and What is Voidable Marriage?

What are the differences between these two?

Grounds of Void and Voidable Marriage
46. Wakf Explained

Essentials, Legal Effects, Modes of Creation and Types of Wakf.

Mutawalli Explained.

Minor as a Mutawalli.

Doctrine of Cypres.
47. 7 ways of Dissolution of a Partnership Firm
48. 9+ Types / Ways of Divorce in Muslims

Extra Judicial Divorce in Islam

Judicial Divorce in Islam
49. What is Retracted Confession?

Evidentiary value of Retracted Confession.
50. When Communication is said to be completed?
51. Opinions of Third persons when relevant

Evidentiary value of expert evidence.
52. How Much of Information Received from Accused May be Proved?

Section 27 of Evidence Act Explained
53. What is the evidentiary value of accomplice evidence?

Victim of Rape as Accomplice
54. Digital Transformation in Legal Sector

National Judicial Data Grid etc
55. Legal Affairs : VVI Cases

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 WritingLaw.com

5 FACTS ABOUT INDIAN CONSTITUTION

1. Dr. B. R Ambedkar, the chief architect of the constitution

of India is also known as 'Modern Manu'.

2. Lord Mountbatten became the first governor general of

the new dominion of India.

3. Satyendra Prasad Sinha became the first Indian to join

the viceroy's executive council. He was appointed as the
law member.

1
4. Constituent assembly adopted the national flag on July
22, 1947.

5. The calligraphy of the Hindi version of the original

constitution was done by Vasant Krishan Vaidya.
 
This page will be updated along the way with more facts.
Until then please read oConstitution

2
 WritingLaw.com

QUASI CONTRACTS

The word 'Quasi' means 'pseudo'.


The word 'pseudo' means 'resembling or imitating' or
'supposed or purporting to be but not really so; false; not
genuine'.


Thus we can also say that Quasi Contract is a Pseudo-

Contract.

Section 68-72 deals with certain relations resembling those

created by contract. These obligations are known as Quasi-
Contract.

3
The Quasi Contract are not contract in full fledge
because there is no offer and acceptance by the parties,
but there are some circumstances where the contractual
obligation arises.

These circumstances are as follows-

Section 68 : CLAIM FOR NECESSARIES SUPPLIED

TO PERSON INCAPABLE OF CONTRACTING, OR
ON HIS ACCOUNT.
Where one person supplies necessaries suited to the
condition in life of a person, who is incompetent to contract
(minor or lunatic) or to anyone whom such incompetent
person is legally bound to support.

For Example-

to a lunatic’s wife or children.

The person who is supplying, is entitled to recover from the
property of such incompetent person.

Note: Such incompetent person is not personally liable.

Section 69 : INTERESTED PERSON.

For the application of this section following two essentials
are there-
1. One person is interested in the payment of money, that is
why he pays for it.
2. Another person is bound by law to pay the same but he
fails to pay.
The person so making the payment is entitled to recover the
amount by the person who was bound to pay.

4
Section 70 : OBLIGATION OF PERSON ENJOYING
BENEFITS OF NON-GRATUITOUS ACT.
For the application of this section following conditions are
to be satisfied-
1. A person should lawfully do something for another
person or should deliver something to him.
2. If the person making the payment or delivering the thing
must not do so gratuitously which means he should expect
payment for the same.
3. The other person should enjoy the benefits of this
payment or the delivery of the thing.

When all the above conditions are satisfied, the person
receiving the benefit becomes bound to pay the
compensation to the person conferring the benefit.
Enjoyment of benefit by the defendant is necessary.

Section 71 : RESPONSIBILITY OF FINDER OF

GOODS.
Section 71 is another situation of Quasi Contract, when a
person is finder of goods.
Finder of goods to a person who finds goods belonging to
another and takes the goods into his custody. Although as
between the finder and the owner of the goods there is no
contract, yet the following responsibility has been fixed by
section 71, on the finder of goods.

The position of finder of goods is similar as of the Bailee.

The finder of goods is bound to take as much care of goods
as a man of ordinary prudence would do.

5
It may be noted that the position of finder of goods is that of
a Bailee only against the true owner of the goods and he is
bound to return the goods to the owner.
Finder’s title is better than everybody except the true
owner.
When finder of goods return the property to the true owner
then he is entitled to get the expenses from the true owner
which he has expended regarding the goods.

Section 72 : LIABILITY OF PERSON TO WHOM

MONEY IS PAID, OR THING DELIVERED, BY
MISTAKE OR UNDER COERCION.
Section 72 covers a situation where money has been paid or
anything delivered by one person to another either by
mistake or under coercion.
According to this section the person to whom the money
has been paid or anything delivered by mistake or under
coercion, must repay or return it.
 

Read all these sections in proper bare act form. Very

Important.

Read more Law Notes

6
 WritingLaw.com

DIFFERENCE BETWEEN PUBLIC AND

PRIVATE DOCUMENTS

1. Section 74 of the Indian Evidence Act defines public

documents:-

Documents forming the act or records of sovereign
authority namely Parliament, Legislative Assemblies,
official bodies, tribunals, public officers or any part of
India or of Commonwealth or foreign country.

Section 75 says that all other documents other than

public documents are private documents.
 

7
2. Public documents are prepared by public servants while
discharging their official or public duty.
Private documents are those documents which are
prepared by a person in his private interest and right.
 
3. Public documents are available for inspection to public
in public office during official time after prescribed fee.

Example-

The copy of judgement may be inspected by concerned
parties of case.
Private documents are kept in the custody of the person to
whom it belongs and it is not available for inspection to
general public.

Example-

A person's ID card, gift deed, passport are all private
documents.
 
4. The secondary copy of public documents is to be
admitted in judicial proceedings. As per section 65 (e) a
certified copy of public document is admissible in court.
Before proving private documents one of the conditions
laid down under section 65 is to be fulfilled else it cannot
be admitted in judicial proceedings.
 
5. As a general rule, public document is proved by
secondary evidence.
As a general rule private document is to be proved by
original that is primary evidence.
 

8
6. Section 79 says the court is bound to presume the
genuineness of public document from its certified
secondary copy.
In private documents no presumption of genuineness of
original from secondary evidence is made except in
exceptional circumstances.
 
7. Some of examples of public documents are birth
register, electoral roll, RTI reports, records of banks,
chargesheet, deposition of witness, entry in Register of
Power of attorney, notice under section 107 CrPC,
record of information under section 145 CrPC.

Some examples of private documents are salary slips,

unregistered will, registered sale deed, memorandum,
documents kept by post and telegram office.

The CPIO, SC of India vs Subhash Chandra

Agarwal 2009 SC

An application was made by a citizen seeking to know
whether judges of Supreme Court and High Court were
filing their assets declarations in accordance with 1997
resolution of Supreme Court.
This decision clarified and expanded the citizen's right to
information. The court held that all information available
with the public authorities are covered by RTI Act, 2005
being public documents.

9
Fazal Sheikh and others v Abdul Rehman
Mia 1990 Gujarat HC

In this case Gujarat High Court held that a private Waqf
deed which is recorded in the office of sub-registrar is a
public document.

How the public documents may be proved?

Acts, order, notification of government → Records of
department certified by HODs
Proceedings of the legislature → Journals, published acts,
copies printed by order of garment
Program elation, orders, reserve regulation issued by
Majesty or Privy Council → Copies in London Gazette,
printed by Queen's printer.

10
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11
 WritingLaw.com

RIGHT TO LIFE AND PERSONAL LIBERTY

(Article 21)

 
AK Gopalan v State of Madras, 1951


Hon'ble Supreme Court held that the protection of Article

21 is available only against the executive action. But
legislative may deprive a person by making a law.

12
Maneka Gandhi v UOI AIR 1978

In this case Hon'ble Supreme Court held that the protection
of Article 21 is available not only against executive action
but also against legislative.

In simple words the legislature cannot deprive a person

from right to life and personal liberty even by making a
law.

A person can only be deprived from his right to life and

personal liberty by procedure which is established by law.
(Death sentence while satisfying rarest of the rare case
theory.)

SCOPE OF ARTICLE 21

Right to life does not mean only the animal existence.

Under this article right to life means all the aspects of the
life which make the human life dignified.

Right to privacy is included in Right to Life.


Kharak Singh v State of UP and Others

Protection to the convicted and accused person.


Sunil Batra v Delhi Administration

In this case Supreme Court held that fatal cuffs is
unconstitutional for convicted person because it is an
inhuman behaviour with the prisoners and it is a violation
of Article 21.

13
Prem Shankar Shukla v Delhi Administration

Hon'ble Supreme court held that handcuffing is also
unconstitutional because it is violative of Article 21.

Right to life includes Right to Education


Mohini Jain v State of Karnataka AIR 1992 SC

Supreme Court held that right to life includes right to
education also.

Unni Krishnan v State of Andhra Pradesh AIR 1993 SC


Supreme court held right to education is a fundamental
right as decided in Mohini Jain Case. But in such case
Hon'ble Supreme Court fixed the age that it is a
fundamental right to the children for the age 6-14 years.

In the light of two above judgements the parliament enacted

the Free and Compulsory Education Act, 2009.

Satwant Singh v APO Delhi


In this case Hon'ble Supreme Court held that right to go
abroad is a fundamental right under Article 21.

Subhash Kumar v State of Bihar


Right to get the pollution free air is also a fundamental right
under Article 21.

Olega Tellis v B.M.C (Bombay Municipal Corporation)


In this case Supreme Court held that right to livelihood is
included in Article 21.

14
Lachma Devi v Attorney General of India

Supreme Court held that the execution of death sentence at
a public place is unconstitutional and it is violative of
Article 21.

Hussainara Khatoon v State of Bihar


Supreme Court held that equal justice and free legal aid of
an accused person is a fundamental right under Article 21.

Rudal Shah v State of Bihar


In this case Supreme Court held that to get compensation in
case of illegal imprisonment is a fundamental right of a
prisoner.

Chandrima Das v Railway Chairman Board


The compensation to the rape victim is also a fundamental
right under Article 21.

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15
 WritingLaw.com

ADMISSION DEFINED UNDER EVIDENCE ACT

(section 17)

This law note talks about:


What is Admission?

Who can make Admission?

What is evidentiary value of it?

Admissions may act as Estoppel - Section 31 r/w Section
115

What is Admission?
An admission is a statement - oral or documentary or
contained in electronic form which suggests any inference
as to fact in issue or relevant fact.

16
* Admission can be either self harming or self serving
(serve own interest)
* Self harming admissions are acceptable evidence.
* Confession is an admission of guilt. It is acceptable and
valid in evidence.
* There can be admission by silence also.

Bessela vs Stern (1877)

17
 ADMISSION CAN BE FORMAL OR INFORMAL

Formal admissions- Formal admissions are judicial

admissions and in such a case there is no need to prove the
facts admitted.

Informal admission- Informal admissions are usually

made in casual conversation in ignorance of possibility of it
being used in future litigation.

Admission as a waiver of proof


When parties make an admission of fact, it in turn amounts
to waiver of proof of such a fact.

CONDITIONS FOR ADMISSIBILITY OF

ADMISSIONS

1. Admission must relate to subject matter.

2. Admission must always be in nature of self-harming
form/statement.
3. Admission must be made by persons and in the
circumstances mentioned under Section 18 to 20.

WHO CAN MAKE ADMISSIONS?

(Section 18-20)

Section 18: Admissions by party to proceeding or his agent.

1. Party to the proceedings.
2. By agent of such party who is authorised.

18
3. Suitor in representative character, when he held that
character.
4. Party having pecuniary or proprietary interests.
5. Predecessor in title (who was in title before me)
6. Section 19: Person whose position or liability in
question.
7. Section 20: Referee

EVIDENTIARY VALUE OF ADMISSION

Admission is not conclusive proof of the fact admitted as it

is a prima facia evidence only but it may operate as
estoppel. The person can be stopped to deny the truth of the
statement.
Supreme Court in-

Banarasi Das vs Kanshi Ram, AIR 1963 said it is a weak
type of evidence and court may reject it if the contrary is
proved.
In Bishwanath Prasad vs Dwarka Prasad, AIR 1974
Supreme Court met further observations-
1. Admissions are substantive evidence by themselves
though they are not the conclusive proof of the matter
admitted.
2. Admission duly proved are admissible in evidence
irrespective of the fact whether the party making them
appeared as a witness or not.

19
3. Clarification- Admissions will be admissible even when
the party is not called as a witness.
Purpose of contradicting a witness in section 145 and the
object of proving admission here is entirely different. In
case of contradiction it will be necessary to put the
statement to the witness so that he will have an opportunity
to explain it. But it is not so required in admission and in
this context Justice Krishna Iyer pointed out that admission
is a substantive evidence while the purpose of section 145
is to clear doubt on the veracity (accuracy, truthfulness,
correctness, faithfulness, conformity to facts) of witness and
does not become substantive evidence.

Section 31 says admissions are not conclusive proof of the

matter admitted but it may operate as estoppel. And if it is
treated as estoppel, rules of section 115-117 will apply.
 
SECTION 21: PROOF OF ADMISSION AGAINST
PERSONS MAKING THEM, AND BY OR ON THEIR
BEHALF

Admissions will be proved against the person making it and

not in his favour. But except in the following cases. The
general rule is that one cannot prove a statement in his
favour but section 21 incorporates three exceptions which
even if being self serving can be proved by the party. These
are-
1. Admissions falling under section 32- This exception
enables a person to prove his own statement where the
circumstances are such that if he were dead the statement

20
would have been relevant in dispute between third parties.
(when veracity is not in doubt it can be brought)

2. Statement as to bodily feeling of state of mind falling

under section 14- The statement of men's mind or body is
relevant under section 14 and statement narrating such facts
which indicates the state of mind or body made at or about
the time when such state existed and which is accompanied
by conduct are relevant.

3. Statement otherwise relevant then it may be proved

as otherwise relevant fact and not as admissions.
 
SECTION 22: WHEN ORAL ADMISSIONS AS TO
CONTENTS OF DOCUMENTS ARE RELEVANT
Document must be proved by the document itself. But
when document is not available, then secondary evidence
may be given for it under section 65.

Section 59- All facts except the contents of documents or

electronic records may be proved by oral evidence.

Section 63(5)- Secondary Evidence. Oral accounts of the

contents of a documents given by some person who has
himself seen it.

When secondary evidence can be brought before the court

given under Section 65.

21
SECTION 22A: WHEN ORAL ADMISSIONS AS TO
CONTENTS OF ELECTRONIC RECORDS ARE
RELEVANT
Inserted by IT Act 2000. When genuineness of electronic
record produced is in question then only oral admissions as
to the contents of electronic records are relevant.
 
SECTION 23: ADMISSION IN CIVIL CASES, WHEN
RELEVANT
Where there is an agreement to the fact either express or
implied that evidence of admission will not be given then it
will not be produced/adduced before the court. It is just to
encourage the parties to settle their matter for dispute with
full freedom where they can diverse the things.

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 WritingLaw.com

ARREST EXPLAINED
(Section 46 of CrPC)

This section prescribes the mode of arrest.

"Arrest in the legal sense under CrPC means taking
into custody of another person under authority of law
for the purpose of holding and detaining him to answer
a criminal charge and preventing the commission of an
offence."

The words 'arrest' and 'custody' are not synonyms.

In every arrest there is custody but vice versa is not
true.

23
"According to this section, an arrest of a person consists
(except in the case of submission), of the actual seizure or
touching of the body of a person with a view to his
detention."

In the case of Birendra Kr Rai v UOI, 1992 Supreme Court

held that it is not necessary to handcuff a person but could
be completed even by spoken words, if a person submits to
the custody.

Section 50 : Arrest without warrant

The provisions of this section are mandatory. Where a
person is arrested without any warrant he should be
immediately informed to the particulars of the offence and
ground of his arrest and where the offence is bailable of his
right to be released on bail.

Section 51 : This section makes provision regarding search

of the arrested person and making an inventory of the
articles found upon him.

Kasturi Lal v State of UP, AIR 1965


It was held that when a person is arrested on suspicion that
he was carrying stolen property and the property found on
search is seized, such seizure shall be reported to a
magistrate.

Mahadev v State of UP


Taking of signature of person searched on the memo of
recovery list is not required by this section. And if the

24
recovery memo is not signed by the accused, then search is
not illegal.

Section 53 : This section provides that a medical

examination will be done at the request of police officer not
below the rank of S.I (Sub Inspector)

Anil A Lokhande v State of Maharashtra 1981


Supreme Court held that if it is necessary for doing justice
then police officer or court can exercise such power.

Explanation-

Here examination means-

Examination of blood, blood stains, semen, swabs in case of
sexual offences, sputum, hair samples, sweat, finger nail
clippings by the use of modern and scientific techniques.

(Swab- an absorbent pad or piece of material used in
surgery and medicine for cleaning wounds, applying
medication, or taking specimens.

Sputum- a mixture of saliva and mucus coughed up from the
respiratory tract)

With the scientific advancements in India, DNA Profiling

also comes under the ambit of examination under section
53.

Section 53A : Examination of person accused of rape by

medical practitioner (on request of Police Officer)
On the request of police officer not below the rank of sub
inspector, the examination may be conducted by

25
government medical practitioner but if the government
medical practitioner is not on the radius of 16 km from the
place where the offence is committed, the examination may
be conducted by any medical practitioner. (Read from bare
act section 53A)

Section 54 : Examination of arrested person by medical

practitioner at the request of the arrested person. (As a
Right)
This section confers on the arrested person, the right to
have his medical examination done.

DJ Vaghela v Kanti Bhai Jetha Bhai


This section protects the arrested person from physical
torture and mal treatment in police custody.

Sheela Barse v State of Maharashtra (Important case)


Supreme Court has warned the lower courts not to adopt a
casual approach to custodial torture.

Section 57 : This section says that a person detained in

custody must be presented before the nearest magistrate
within 24 hours of his arrest. The period of 24 hours does
not include the time necessary for the journey from the
place of arrest to the magistrate.

The purpose of this section is to ensure that accused is

presented before a magistrate competent to try with
minimum possible delay.

26
 D.K Basu v State of West Bengal AIR 1996
Date of judgement- 18-12-1996

Justice- Kuldeep Singh, A.S Anand

In this case Supreme court issued a list of eleven

guidelines in all cases of arrest and detention. These
guidelines are as follows:-

1. The police officer who is going to arrest a person should

bear accurate, visible and clear identification and name tag
with designation. The particulars of all police officers/
constables who handle interrogation of the arrestee must be
recorded in the register.

2. The police officer who is going to arrest shall prepare a

memo of the arrest and the time of the arrest and such
memo will be attested by at-least one witness who may be
either the member of the family of the arrestee or a
respectable person of the locality from where the arrest is
made. The memo will be signed by the arrestee and shall
contain the time and date of arrest.

3. A person who has been arrested or detained is entitled to

give information to his friend or relative or other person
known to him. (within 12 hours)

4. The time, place of arrest, venue of custody must be

notified by the police to the friend or relative or known
person.

27
5. The person arrested must be made aware of his right.

6. An entry must be made in the case diary at the place of

detention regarding the arrest of the person and also
mention the next friend of the arrestee who has been
informed of the arrest.

7. The arrestee should, where he requests be also examined

at the time of his arrest and major and minor injuries, if
present on his body be recorded at that time.

8. The arrestee should be subjected to the medical

examination by a trained doctor. (section 54)

9. Copies of all the documents including the memo of arrest

should be sent to the magistrate for his record.

10. The arrestee may be permitted to meet his lawyer

during the interrogation, not throughout the interrogation.

11. A police control room should be provided at all districts

and state head quarter, where information regarding the
arrest and place of custody of arrestee shall be
communicated by officer arresting within 12 hours of the
arrest and it should be displayed on a notice board.

Another important case on police custody is Nilabati Behra

v State of Odisha.
 
Read more Law Notes.

28
 WritingLaw.com

COMPTROLLER AND AUDITOR GENERAL OF

INDIA (CAG)

The Constitution of India provides for an independent

office of the CAG. He is the head of the Indian audit and
accounts department. He is the guardian of the public
purse and controls financial system of the country both at
central level and state level.

He is one of the strongest wall of the democratic system

like that of Supreme Court, Election Commission of India
(ECA) and the Union Public Service Commission (UPSC)

29
 Background

The role of CAG evolved in British India with Lord

Canning. In 1858 for the first time a separate department
was set up for auditing and accounting transactions under
the East India Company.


Sir Edward Drummond in 1860 took charge as first Auditor

General and the term 'Comptroller and Auditor General
of India' was first time used in 1884.

Constitutional Provisions

Part V, Chapter V of Constitution of India talks about

Comptroller and Auditor-General of India.

Article 148 speaks of the CAG, his appointment, oath of his

service.

Article 149 broadly speaks of the duties and powers of the

CAG.

Article 150 - The accounts of the Union and of states shall

be kept in sUch form as the president may prescribe on the
advise of the CAG.

Article 151 - The reports of the CAG relating to Union shall

be submitted to the president. The reports of the CAG
relating to state shall be submitted to the Governor.

30
 FUNCTIONS OF CAG

1. He audits all transactions of the Central and State

Governments related to debts, deposits, funds etc.

2. He audits the accounts of any other authority when

requested by the President or Governor.

Example- Local bodies.

3. He advises the President with regard to the prescription

of the form as to how the records of Centre and State shall
be kept.

4. He submits his report relating to Centre to the President,

who then places it before both houses of Parliament.

5. He submits his report relating to State to the Governor,

who then places them before State Legislature.

6. He ascertains and certifies the net proceeds of any tax or

duty and his certificate is final on the matter.

7. He submits three audit reports to the President:


a. Audit report on appropriation accounts.

b. Audit report on finance accounts.

c. Audit report on public undertakings.

31
 ROLE OF CAG

1. The CAG is an agent of the Parliament and conducts

audits of expenditure on behalf of the Parliament. Therefore
he is responsible only to the Parliament.

2. The CAG has to ascertain whether the money spent were

authorised for the purpose for which they were spent.

3. He focuses on whether expenditure made is in public

interest or not.

4. The role of CAG in the auditing of public corporations is

limited.

5. Some corporations are audited directly by the CAG.


For example- ONGC, Air India and others.

6. Some corporations are audited by private professional

auditors who are appointed by the Central Government in
consultation with CAG. If necessary there may be
supplementary audit by CAG.

7. The role of the CAG in the auditing of Government

Companies is also limited. They are audited by private
auditors who are appointed by the Central Government on
the advise of the CAG.

32
 Audit Board, 1968

In 1968 an Audit Board was established as a part of the

office of CAG to associate with outside specialists and
experts to handle technical aspects of audit. Board was
established on the recommendation of Administration
Reforms Commission of India.

Recent Issues

Mode of Appointment

The selection process is entirely internal to the Government
as to what criteria is applied and how names are shortlisted.
Presently there is a lack of clarity.

Recent Example

Two PILs have also been filed in Supreme Court against the
former Defence Secretary Shashi Kant Sharma as CAG
(2014-17). His appointment is thus being questioned in the
context of conflict of interest and also that it goes against
code of ethics of auditors.

Recommendation

There is a need to frame a transparent selection procedure
based on definite criteria. A selection committee may be
appointed in this regard.

33
 Current CAG

• The Current CAG is Rajiv Mehrishi.

• Rajiv Mehrishi was elected as Vice Chairman of United
Nations Panel of External Auditors at its annual
meeting held in New York.
• V Narahari Rao was the first Indian Civil Servant who
served as CAG.



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CAN THERE BE DIRECT TRANSFER TO UNBORN

PERSON?

There cannot be any direct transfer to unborn person.

An unborn person means a person who is NOT in

existence even in mother's womb.

For the transfer to unborn person the following three rules

must be followed:-

35
NO DIRECT TRANSFER.
Transfer can not be made directly to unborn person but can
be made only by creating life interest, that is, machinery of
Trust.

PRIOR INTEREST.
The transfer for the benefit of unborn person must be
preceded by a life interest in favour of a living person in
existence at the date of transfer.

ABSOLUTE INTEREST.
The entire property must be transferred to the unborn
person. It is not permissible to give life interest to an
unborn person.

Read Section 13 of TPA

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36
 WritingLaw.com

CLASSIFICATION OF RIGHTS AND DUTIES

Right means claims, titles, liberties, powers and

immunities summed together.

CLASSIFICATION OF RIGHTS
1. Perfect and Imperfect Right
A right which is enforceable by law is a perfect right but a
right which is not enforced by law is an imperfect right.

For Example-

Time barred debt.

37
2. Right in Rem and Right in Personam
Right in Rem → against the whole world.

For Example- Right to go on a public road.

Right in Personam → against an individual.

3. Antecedent Right and Remedial Rights

A substantive law may either be antecedent or remedial.
Antecedent right may either be a right in rem or a right in
personam.

For Example-

Purchaser of certain goods has an antecedent right over the
goods so purchased. When antecedent right is violated then
the role of remedial right begins.

4. Proprietary and Personal Rights

A person proprietary rights constitute his estate, his assets
and his property. These rights have some economic or
monetary significance and are elements of wealth.

For Example-

Money in a man's pocket or bank or land, houses etc are
proprietary rights.

On the other hand the personal rights are elements in a

person's well being. They have no monetary value.

For Example-

Right of reputation, personal liberty, freedom from bodily
harm etc.

38
5. Right in re-propria and Right in re-alina
Right in re-propria means right over one's own property.

Right in re-alina means right over the property of someone
else.

6. Principal Right and accessory Rights

The existence of principal right is independent of any other
right but accessory rights are ancillary to principal right.

7. Vested and Contingent Right

Vested right occurs when all the facts have been completed.

Contingent right occurs when some events is necessary to
happen.

8. Public and Private Rights

The violation of public rights which affects the community
as a whole. They are called crimes. Violation of private
rights are called civil injuries or tort.

THEORIES OF RIGHTS

1. WILL THEORY

2. INTEREST THEORY

39
Will Theory - Supporters - Hegel, Kant, Hume.
According to this theory, a right is an inherent element of
the human will. The subject matter of right is derived from
human will. The theory suggests that it is through a right
that a man expresses his will over an object.

Interest Theory- Supporters - German jurist Ehering.

According to this theory, 'A legal right is a legally
protected interest'. Ehering says the basis of legal right is
interest and not will. The main object of law is protection of
human interest and resolve the conflicts between human
interests.
However Salmond criticised this theory of Ehering.

LEGAL RIGHT IS AN INTEREST WHICH IS

RECOGNISED AND PROTECTED BY LAW

40
 LEGAL DUTIES

A duty is an obligatory act. It means it is an act the opposite

of which would be a wrong. Thus duties and wrongs are
generally co-related. The commission of a wrong is the
breach of duty and the performance of a duty is avoidance
of wrong.

CLASSIFICATION OF LEGAL DUTIES

1. Postitive and Negative Duty

Positive Duties → to do an act.

Negative Duties → not to do an act.

2. Primary and Secondary Duty

A duty may be either primary or secondary.

Primary duty is independent. Secondary duty is dependent
(but exist for the enforcement of other duties.)

3. Absolute and Relative Duties

Absolute duties are those duties which are owed only to the
state; breach of which is generally called a crime and
remedy is punishment.

Relative duties are owed to any person; breach of which is a
civil injury (tort)and the remedy is compensation.

Austin also supports the view that certain duties are

absolute, they do not have a corresponding right.


41
For Example-

Duty towards God, Duty towards state, Duty towards
himself, Duty towards animals.

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 WritingLaw.com

Concept of offer under Indian Contract Act

What is offer?
Offer is also known as proposal under Indian Contract Act
1872.

According to section 2 (A),


When any person signifies his willingness to another person
to do or not to do anything with a view to obtain his assent
on it, is said to make a proposal.

43
Essential elements of proposal are,
1. There must be two parties.

2. The proposal must be certain.

3. The offer must be communicated.


Related Case: Balfour v Balfour

4. There must be intention to create legal relationship.


Related Case: Lalman Shukla v Gauri Dutt

Note: ‘Communication’ means the content of offer must

come into the knowledge of the person to whom the offer is
made.

Note: There are some offers where there is no intention to

create legal relationship.

For example- Family matter, Religious matter, Political
matters etc.

KINDS OF OFFER

1. General Offer. It is an offer to the whole world.

2. Specific offer. It is an offer made to a particular person

or group of persons.

3. Express offer. It is an offer which is made by words

either oral or in writing.

44
4. Implied offer. It is an offer which is made by conduct or
gesture of the parties.

5. Counter offer. When a person to whom the offer is made

does not accept the offer [as it is] he counters the condition.
This is called counter offer.

6. Cross offer. When two offers of same terms and

conditions cross each other at same time, it is called cross
offer.

7. Standing offer. An offer is a standing offer if it is

intended to remain open for a specified period.

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45
 WritingLaw.com

CONSTITUTIONAL PROVISIONS ON CENTRE-

STATE RELATIONS

The Indian nation is said to be federation with a unitary

bias. Part XI of the Indian Constitution that is article 245 to
263 deals with Centre State relations.
The financial relationship between the Centre and states is
covered in Part XII of the Indian Constitution.

Article 280 deals with mandate provision for setting up

Finance Commission.

Indian Constitution → federal in form but unitary in

spirit.

46
Article 248 : The phrase "unitary bias" arises because
residuary powers to legislate on the matters not enumerated
in the central, state or concurrent list subjects is given to the
Centre under article 248.

The Centre was made more powerful as can be

recognised from the following points:-

1. Single citizenship
There is no state citizenship. Every Indian has same rights
of citizenship, no matter in which state he resides.

2. Centre can change name in boundaries of states

Article 3 give the Central Government the right to change
the name and boundaries of states.

3. Single unified judiciary

In India the Supreme Court and High Courts form a single
integrated judicial system. To ensure the uniformity of the
laws they are placed in the concurrent list.

4. Uniquely in emergencies
Under the Constitution, the President of the Republic has
been given emergency powers under article 352, 356 and
360.

5. Common all India services

The Constitution has certain special provisions to ensure
the uniformity of the administrative standards. These
services include IAS, IPS, IES and many others.

47
6. Inequality of representation in the council of states.
There is bicameralism (in government, bicameralism is the
practice of having two legislative or parliamentary
chambers) in India, but states have not been given equal
representation. Here the state with more population will
have greater representation than smaller ones.

7. Appointment of governors
The President appoints the Governor and this enables the
Union Government to exercise control over the State
Administration.

8. The office of Comptroller and Auditor General

The office of CAG comes under central government; But
his concern is not only with the accounts and auditing of the
union government but also states.

9. Centralised electoral machinery

The body of Election Commission is appointed by the
President. He is in charge of conducting elections not only
to Parliament but also to state legislature.

10. Financial dependence of states

In a federation, states should be financially self-sufficient to
ensure maximum autonomy. But in India, the states depend
on the Centre for all development. It is the centre who gives
grants to the states.
 
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DIFFERENCE BETWEEN COMPLAINT AND FIR

49
COMPLAINT
1. Complaint is defined under section 2(d) of CrPC.

2. Complaint is an allegation which is made orally or in

writing to a magistrate.

3. A complaint may relate to a cognizable offence or non-

cognizable offence.

4. A magistrate takes cognizance of an offence on a

complaint made to him. But he can not do so in FIR.

5. Complaint does not include the report of police officer.

FIR
1. FIR is given under Section 154 of CrPC.

2. FIR is given to an officer in charge of a police station.

3. FIR is related to a cognizable offence.

4. On FIR the magistrate can take cognizance.

5. The FIR of an offence may be given by anybody

including police officer.

50
 DIFFERENCE BETWEEN INVESTIGATION AND
INQUIRY

INVESTIGATION
Section 2(h) of CrPC

1. An investigation is made by a police officer or by some

person authorised by a magistrate.

2. The object of an investigation is to collect evidence for

the prosecution of the case.

3. Investigation is the first stage of a criminal case.

4. Investigation is not a judicial proceeding.

51
INQUIRY
Section 2(g) of CrPC

1. Inquiry is made by magistrate or court. Investigation is

never made by magistrate or court.

2. The object of inquiry is to determine the truth or false of

certain facts with a view to take in further action.

3. Inquiry is the second stage of a case.

4. Inquiry is a judicial proceeding.

52
 DIFFERENCE BETWEEN TRIAL AND INQUIRY

Both are judicial proceedings.

TRIAL
Inquiry is different from trial. Trial is not defined in the
code. Trail was defined in the code of 1872, but it has not
been defined in the subsequent code 1882, 1898 and 1973.

1. A trial is always for an offence.

2. A trial ends in acquittal or conviction of an accused.

53
3. Trial is the examination and determination of cause by a
judicial tribunal.

4. Trial follows inquiry.

5. Trial is the third stage.

INQUIRY
1. An inquiry does not necessarily relate to only offences.

For Example-

Inquiry made in disputes relating to an immovable property
with regard to possession, public nuisance or for the
maintenance of wives.

2. An inquiry into a offence never ends in a conviction or

acquittal.

3. Inquiry includes every inquiry other than a trial

conducted by magistrate or court.

4. Inquiry precedes trial.

5. Inquiry is the second stage in a criminal case.

 

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 WritingLaw.com

Differences between ordinary

witness and expert witness
1. Expert witness gives evidence of his opinion that is the
ground on basis of which he has given his opinion.

Ordinary witness is a witness of fact and gives evidence of

those facts which are under inquiry.

2. The expert witness supports his evidence by the

experiments which has been performed by him in absence
of opposite party.

55
Ordinary witness is available to opposite party for veracity
(truthfulness, accuracy, correctness, faithfulness, fidelity;
reputability, honesty, sincerity, trustworthiness, reliability,
dependability) (refer section 146)

3. The expert gives the rules and reasons which supports his
opinion.

For example-

If a medical expert gives opinion on symptoms or after
effects of a particular poison then he may also refer the
book in support to his opinion, on the basis of which he has
opined (suggest, comment, remark, declare.)

The ordinary witness gives evidence of what he has

perceived by his senses

The major difference between these two types of

witnesses is personal knowledge. Expert may use their
knowledge or skill to draw conclusions whereas
ordinary witness can base their opinion only on what
they observed.

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 WritingLaw.com

DIFFERENCE BETWEEN RIOTING AND AFFRAY

1. WHICH SECTION IN IPC?


Rioting is given under Section 146 of IPC.

Affray is given under Section 159 of IPC.

2. ESSENTIALS OF RIOTING

a) there must be an unlawful assembly.

b) the accused must be a member of such unlawful
assembly.

c) force or violence must be used by such unlawful
assembly or by any member of such assembly.

57
ESSENTIALS OF AFFRAY

a) a fight between two or more persons.

b) it must in a public place.

c) fight must disturb the public peace.

3. PLACE

Rioting may be committed at any place whether public or
private.

Affray is committed only in public place.

4. NUMBER OF PARTIES

In rioting there must be minimum of five persons.

In affray minimum two persons are required.

5. PUNISHMENT

In rioting every member is punishable irrespective of
whether he has actively participated or not.

In affray only those persons are punished who are
participating.

6. NATURE

Rioting is more serious in nature.

Affray is less serious in nature.
 
Very important that you please read CHAPTER VIII (141-160) of
IPC – OF OFFENCES AGAINST THE PUBLIC
TRANQUILLITY (It talks in depth about rioting, affray etc.)
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58
 WritingLaw.com

BRIEF ILLUSTRATIVE NOTE


(This question was asked in Delhi Judicial Services Exam 1973)

DIRECT AND CIRCUMSTANTIAL EVIDENCE

Direct Evidence
It means any fact which without the intervention of any
other fact proves the existence of a fact in issue.

Example-

A is tried for causing grievous hurt to B with a club. C
deposes to the fact that he saw the accused, inflicting the
blow, which caused the grievous hurt. The evidence
adduced (mentioned, pointed out, cite as evidence) by C is
direct evidence.

59
Circumstantial Evidence

It is that which relates to a series of facts other than fact in
issue. This evidence assumes great importance when direct
evidence is lacking.
The most fundamental decision on circumstantial evidence
is-

Hanumant Govind Nargundkar vs State of MP

J. Mahajan said that the circumstances should be of a
conclusive nature and tendency and they should be such as
to exclude every hypothesis excluding the one proposed to
be proved.

Presumption of Law and Presumption of Fact

Presumption of Law

Presumption of law is based on provisions of law. There

may be rebuttable presumption or irrebuttable presumption
of law. Irrebuttable presumption can be found in section 82
of IPC wherein it is laid down that 'Nothing is an offence
which is done by a child under seven years of age. No
evidence will be allowed to be adduced that the accused
was guilty'.

Rebuttable presumption of Law:


Example-

A man is presumed innocent until proven guilty, a child
born in a legal wedlock shall be presumed to be legitimate
and the one who questions his legitimacy must disprove it.

60
Courts can not ignore Presumption of Law. Presumption
of Law is mandatory and court is bound to presume the
same.

Presumption of Fact

These presumptions are indicated in the act as 'May

Presume'.

These presumptions are based on the discretionary power of
the court. They are rebuttable as their evidentiary effect
may be negated (invalidate, nullify, cancel, neutralise, make
ineffective) by contrary proof.

Position of presumption of fact is uncertain and transitory.

Court can ignore presumption of fact even if it is strong.
These presumptions are based on logic, law of nature and
human experience.

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Proposal + Acceptance = Promise

ACCEPTANCE IN CONTRACT ACT

Section 2(b) of Indian Contract Act


According to section 2(b) when the person to whom the

proposal is made signifies his assent thereto, the proposal
is said to be accepted.

Proposal when accepted becomes a promise.

According to William Anson:-

"An acceptance is like a stick of matchbox in front of a
truck of gunpowder."
 

62
 ESSENTIALS OF ACCEPTANCE

1. Acceptance should be communicated by the offeree to

the offeror.
Related Case: Felt house v Bindley

2. Acceptance should be absolute and unqualified.

For a valid acceptance it is also essential that acceptance
should be absolute & unqualified. When the acceptance
includes the negotiations or in other words the acceptor
does not accept the whole condition of offer and he makes
another condition on it then it becomes a counter offer.

Section 7: Acceptance must be absolute and unqualified.

Section 7 of the Act provides that in order to convert a
proposal into a promise, the acceptance must be absolute
and unqualified.

3. Acceptance should be made in some usual and

reasonable manner, unless the proposal prescribes the
manner of acceptance.

4. Acceptance should be made while the offer is still

subsisting.

5. No need of acceptance in general offer. Only

performance is enough.

6. Acceptance must be express or implied.

63
AN ACCEPTANCE WITH VARIATION IS NO
ACCEPTANCE, BUT SIMPLY A COUNTER OFFER.
A counter offer puts an end to the original offer and cannot
be revived by subsequent acceptance unless renewed.

COMMUNICATION OF ACCEPTANCE TO A
WRONG PERSON.
It has already been noted that the offerer becomes bound as
soon as the letter of acceptance is posted to him. It the letter
of acceptance is posted at a wrong address or to a wrong
person, that will not bind the offerer.

This page is very important and related to this note.

Must Read!

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64
 WritingLaw.com

14 INDIAN CONSTITUTIONAL FEATURES/

CONCEPTS TAKEN FROM OTHER COUNTRIES
 
Indian Constitution has the best of all worlds. There are
many features/concepts which have been taken or inspired
from different countries.

Here is a list of 14 features in Indian Constitution that has

been taken from other countries.

United Kingdom - Parliamentary government.

United Kingdom - Rule of Law.
United Kingdom - Single citizenship.

65
United Kingdom - Cabinet system.
United Kingdom - Concept of equality before law.

Ireland - Directive Principles of State Policy.

U.S.A - Fundamental Rights.

U.S.A - Judicial review.
U.S.A - Independence of judiciary.

Canada - Federation with a strong Centre.

(USSR) Russia - Fundamental duties.

Germany - Emergency provisions.

South Africa - Procedure for amendment of the

Constitution.

Japan - Concept of “procedure established by Law”.

 

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66
 WritingLaw.com

CRPC NOTES : INFORMATION AND

INVESTIGATION
(Chapter 12, Section 154-176)

Information → To Police

Investigation → By Police

67
Section 154 : FIR, First Information Report

This section has three objects-

1. To inform the magistrate of the district and the DSP who
are responsible for the peace and safety of the district of the
offences reported at the police station.

2. To make known to the judicial offices before whom the

case is ultimately tried.

3. To safeguard the accused against subsequent variation or

additions.

FIR

FIR is NOT defined in CrPC. It may be defined under

following points-
1. It is an information which is given to the police officer.

2. Information must relate to a cognizable offence.

3. It is an information first in point of time.

4. On the basis of FIR investigation starts.

5. Such information may be oral or in writing.

6. If it is oral then it must be reduced in writing by police

officer and must be read over to the informant and sign
must be there of the informant.

68
7. After the information it is the duty of police officer to
mention the substance of information in general diary.

According to clause 2 of section 154, a copy of FIR must be

given free of cost to the informant.

Non supply of copy of FIR

There is a question that the provisions of section 154(2) are
directory or mandatory. The answer is directory. Mere non
supply of copy of FIR to informant does not vitiate the
registration of FIR.

State of UP v Mukesh 2013


Hon'ble Supreme Court held that FIR is intimation about
occurrence of incident.

State of Haryana v Chaudhary Bhajan Lal 1992


It was held that when any information disclosing a
cognizable offence is laid before the officer in charge of a
police station, he has no option but to register the case on
the basis of such information.

FIR on Telephone
Cryptic (mysterious, confusing, mystifying, perplexing,
puzzling, obscure) and ambiguous (open to debate/
argument, arguable, debatable; obscure, unclear, imprecise,
vague, abstruse, doubtful, dubious, uncertain) telephone
message which do not clearly specify a cognizable offence
cannot be treated as FIR.

69
But where there is proper information about the
commission of a cognizable offence and is reduced in
writing by police officer then it can be treated as FIR.

Where FIR is lodged?

The general rule is that ordinarily the information about the
offence committed is to be given to the police station
having territorial jurisdiction where the offence has been
committed. But this does not mean that it can not be lodged
elsewhere.

In the case of,


State of AP v Punati Ramulu 1993 SC

The police constable refused to record the information on
the ground that the said police station had no territorial
jurisdiction over the place of crime. It was held by the
Supreme Court that such refusal is a negligence of duty on
the part of the constable. Because any lack of territorial
jurisdiction could not have prevented the constable from
recording information about the cognizable offence and
forwarding the same to the police station having
jurisdiction over the area in which the crime was said to
have been committed.

Delay in Filing FIR

Harpal Singh & Anr v State of Himachal Pradesh

In this case Hon'ble Supreme Court held that if in a rape
case lodging of FIR was delayed for 10 days, the delay will
be deemed to have been reasonably explained where the

70
honour of the family was involved and members had to
decide whether to take the matter to court of not.
Delay lodged FIR loses its weightage but if there is a
satisfactory reason behind the delay then it may be excused.
Where the delay in filing FIR is due to its being lodged at a
wrong police station, it was held to be a reasonable reason.
In rape cases the delay cannot diminish the weightage of
FIR.

State of Punjab v Gurmit Singh (1996)


In this case Supreme Court held that in sexual offences the
delay in lodging FIR is reasonable because of the reputation
of victim or her family members. They can take time to
think to go to police station or not.

Evidentiary value of FIR

A FIR is not a substantive piece of evidence. No person can
be convicted only on the basis of FIR.
In the cases of,

Hasib v State of Bihar AIR 1972 SC and Damodar Prasad v
State of Maharashtra AIR 1970 SC;

Hon'ble Supreme Court held that FIR may be used to
corroborate the statement of the maker under section 157 of
Indian Evidence Act, or to contradict under section 145 of
Indian Evidence Act.

Confessional FIR
A confessional FIR by the accused to the police officer
cannot be used against him in view of section 25 of the
Indian Evidence Act and the information by the accused

71
with the confessional FIR is relevant under section 27 of
Indian Evidence Act.

Second FIR Illegal

It is a well settled principle of law that there can be no
second FIR in the event of any further information being
received by the investigating agency in respect of offence.

Quashing of FIR
High Court is having the power to quash FIR under section
482 of CrPC by using the inherent powers, if High Court is
satisfied that there are facts and circumstances for quashing
FIR.

Gangadhar Kalita v State of Assam 2015 SC

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WHAT IS FRAUDULENT TRANSFER?

Section 53 of Transfer of Property Act

Every owner of property has right to transfer his property as

he likes. But the transfer must be made with a bonafide
intention.
Where the transfer is made with fraudulent intention, it
means with the intention of defeating the interest of creditor
or interest of any subsequent transferee.
Where the transfer is made with fraudulent intention, the
object of the transfer would be bad in the eyes of equity and
justice; though it is valid in law.

73
 ESSENTIALS OF FRAUDULENT TRANSFER

1. Transfer of an immovable property.

2. Made with intent to defeat or delay the creditors of the

transfer.

3. Shall be voidable at the option of the creditor so defeated

or delayed.

But the provisions of this sub section shall not affect-

a. The rights of subsequent transferee in good faith, for
consideration.
b. Any law for the time being in force relating to
insolvency.

NOTE: Partition and family settlement are not transferred

under this act. So this section may not apply to partition or
family settlement.

NOTE: Sham transfers means fictitious transfer / Benami

transfer which is outside the scope of this section.

Section 53 safeguards the interest of a creditor in case of

only real transfer which is made with a fraudulent intention.
On the other hand, a sham transfer is actually not a real
transfer.
NOTE: Section 53 is applicable to transfers only of
immovable properties. The provisions of this section do
not apply to a transfer of movable property.

74
MUSAHUR SAHU AND ANOTHER v HAKIM LAL
AND ANOTHER 1915
Privy Council held that transfer of property by a debtor to
one creditor in preference of the other is not a fraudulent
transfer with intent to defeat or delay the interest of another
creditors.

NOTE: If one creditor represents the other creditors, the

purpose of this rule is to protect the debtor from the
multiplicity of the suits by the other creditors.

ABDUL SHUKOOR SAHEB VS ARJI PAPA RAO AND

OTHERS
Hon'ble Supreme Court held that the creditor may claim the
attachment of the property of the debtor to protect
the mortgage money.
No separate suit will be filed by the creditor for attachment,
the creditor may seek attachment of the property in section
53.

BURDEN OF PROOF

The burden of proof lies on the creditors to show that the

transfer was made to defeat or delay the creditor.

A transferee who takes property in good faith for

consideration is protected. In other words when a transferee
has purchased the property in good faith from a debtor, the
creditor cannot make this transfer void.

75
Section 53 (2) Gratuitous transfer to defraud
subsequent transferee.
Section 53 (2) provides that gratuitous transfer of an
immovable property with intent to defraud a subsequent
transferee shall be voidable at the option of subsequent
transferee.
For Example-

A makes a gift of house to B in January 1990. In February
1990, A sells the same house to C. Here, B and C are two
claimants of same property.

The general rule is that first transferee has preference over

the second. Under this sub-section it is provided that if first
transfer is proved to be fraudulent, the subsequent transfer
shall prevail over the previous one.
In other words this sub section protects the interest of a
bona fide transferee for value from a fraudulent gratuitous
transfer made earlier.

Read Section 53 of TPA (VVI)

Read more Law Notes

76
 WritingLaw.com

GUARDIANSHIP IN MUSLIM LAW

Definition of Guardian and Minor

In the case of marriage, Mehar and divorce, 15 years is the
age of majority. Other than these provisions the age of
majority is 18 years.

Kinds of Guardianship in Muslim Law

Muslim Law recognises three kinds of guardianship:-
A. Guardianship in marriage (Jabar)
B. Guardianship of body of the minor (Hizanat)
C. Guardianship of property (Walayat-i-mal). It is classified
into three parts- a. De jure b. De facto c. Certified

77
A. Guardianship in Marriage
It is one of the essentials of a valid marriage that the parties
are competent to enter into marriage which means they
must have attained the age of puberty. This general rule
admits one exception- where the marriages is  solemnised
on behalf of minor by the guardian.

Under the Muslim law the father has the power to give his
children of both sexes in marriage without their consent to
enter into marriage but it is before the Shariri stage.

Persons Entitled

The following is the list of the persons who can act as a
guardian in the marriage of minor in following order-

* Father

* Father’s father, how high so ever.

* Full brother and other male relations on father's side.

* Mother

* Maternal relations within prohibited degree.

* Kaazi or the Court.

Under Shia Law only the father and failing him the father‘s
father how high so ever.

Testamentary Guardian for Marriage

Under Muslim law testamentary guardian for marriage are
not recognised. A father has no power to appoint any person
as guardian for marriage by his will.

78
B. Guardian of the Body of Minor (Hizanat)
The following are-

Mother.

The mother is entitled-

1. In Hanafi Law, the custody of her male child until he has
completed the age of seven years and of her female child
until she has attained puberty.

2. In Shia Law the custody of her male child till the age of
two years and the custody of her female child till the age of
seven years. The right continues though she is divorced by
the father of the child unless she marries a second husband
in which case the custody belongs to the father.

Where wife loses her Right of Custody

1. If she leads an immoral life.
2. If she neglects to take proper care of the child.
3. If she remarries.
4. If during the marriage she goes and resides at a distance
from the husband's place.

Female relations in Default of Mother

On the failing of the mother, the custody of the boy under
the age of seven years and of a girl who has not attained
puberty (Hanafi school) goes to following female relatives
in following order:-
* Mother’s mother

* Father’s mother

* Full sister


79
* Uterine sister

* Full sister daughter

* Uterine sister daughter

* Maternal aunt

* Paternal aunt

(Uterine means related to uterus or womb or born to same
mother but not same father.)

Other male relations

In default of the mother and other female relations the right
of custody in Hanafi Law belongs to the following persons:-
* Father

* Nearest paternal grandfather

* Full brother

* Full brother's son

* Full brother's of father

* Son of father‘s full brother

Father is entitled in Hanafi Law to the custody of a boy

over seven years of age and of an unmarried girl who has
attained puberty.

In Shia Law custody of male child over two years and an
unmarried girl of seven years or more.

The following are the grounds where a court will interfere

with the father‘s guardianship of his children:-
1. If he is unfit in character and conduct.
2. If he is unfit as regards to external circumstances.
3. If he waives his right.
4. If he enters into an agreement to the contrary.

80
5. If he is out of justification of court and intents to go
abroad.

C. Guardianship of minor's property (Wilayat-e-mal)

If a minor owns movable or immovable property, a
guardian is necessary to manage it. The guardianship of the
property of minor may be classified as follows-
1. Legal or natural guardian
2. Guardian appointed by court (certified guardian)
3. De facto Guardian

Legal Guardian- The person entitled in the following order

as a guardian of minor's property:-
1. Father

2. Executor appointed by the father's will.

3. Father‘s father

4. Executor by the will of father‘s father.

The mother, brother, the uncle etc are not entitled to be the
legal guardian of the property of the minor.

In the case of,


Ghulam Hussaini Qutubdin Maner v Abdul Rashid Abdul
Razzaq Maner 2000

Supreme Court of India has held that the mother of the
minor cannot be appointed as his guardian to accept gift on
his behalf during the lifetime of minor's father.

81
Guardian appointed by the court
In absence of legal guardian, the duty of appointing a
guardian for the protection and preservation of minor's
property fall in the Court.

While appointing a guardian the court takes into

consideration the welfare of the minor.

For Example-

Court may appoint a mother, instead of paternal uncle as the
guardian of the property of the minor.

Without the previous permission of the court, the guardian

appointed by the court cannot:-

* Charge the immovable property of the minor.

* Mortgage

* Transfer by sale

* Exchange

* Lease any part of the immovable property for a term
exceeding five years or for any term extending not more
than one year beyond the date when the ward will cease to
be a minor.

A person who is neither a legal guardian nor a guardian

appointed by the court but has voluntarily placed himself in
charge of the body and property of the minor.

The position of de-facto guardian is quite different from the

legal guardian and the guardian appointed by the court. He
has no power or authority to alienate the minor's property.
 

82
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INCOMING AND OUTGOING PARTNERS

Section 31: A new partner can be introduced into a firm

in the following ways.
1. With the consent of all existing partners.

2. In accordance with a contract between the partners.

3. In accordance with the provisions of section 30. (minors)


Liability of an incoming partner
Every partner is liable for all the acts of the firm done while
he is a partner. It is clear that as a general rule the liability
of an incoming partner begins from the date of his joining
the field.

84
Nothing can prevent a partner from agreeing to be liable for
the acts done before his admission. It the partner makes
such an agreement with his co-partners, the creditors can
make him liable if they can show the incoming partner had
agreed with them expressly or impliedly , for being liable
towards them for the acts done before admission.

Central Bank of India vs Tarseema Compress Wood
Manufacturing Co.

Outgoing Partner: A partner may cease to be a partner in

following ways:-

1. By retirement- Voluntary withdrawal of a partner from

firm.

2. By expulsion- Generally the expulsion of a partner is not

possible except under the following conditions:
If the power to expel has been conferred by a contract
between the partners.

Such power has been exercised in good faith.

3. By insolvency of the partner- An insolvent is not

allowed to continue as a partner and therefore a person who
is adjudicated insolvent ceases to be partner on the date on
which order of adjudication is made. Whether on
adjudication of a partner as insolvent the firm is also
dissolved or not depends on a contract between the
partners.

85
4. Death of a partner- A firm is dissolved but if other
partners so agree, the firm may not be dissolved and the
business of the firm may be continued with the remaining
partners.

LIABILITY OF OUTGOING PARTNER ON DEATH

AND INSOLVENCY

If the partner is adjudicated insolvent and the other partners

agreed to continue the business, the property of the
insolvent partner is not liable for an act of the firm after the
date of adjudication.
* No public notice is required of his being adjudicated
insolvent. His position is different from the retired or
expelled partner, whose liability for the acts of the firm
continues unless a public notice of retirement or expulsion
is given.

Rights of outgoing partners

1. Right to carry on a competing business.

2. Right to share subsequent profits until the amount due to
him has been paid.

Minor's position if he becomes a partner

Section 30(7): When minor becomes a partner as a

major, he will have all the rights and liabilities like other
partners.

His share in the property and profits of the firm shall be the
same to which he was entitled as a minor.

86
Section 30(8): Minor's position if he elects not to become
a partner.

When he elects not to become a partner, his rights and
liabilities continue to be the same as minor upto the date of
his giving public notice.

Application of the doctrine of holding out on minors

attaining majority.

Section 30(9): If after attaining majority he represents to be

a partner in the firm, his liability on the ground of holding
out can still be there.

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MAINTENANCE

(of Parents, Wife and Children)

Section 125 to 128 of CrPC make provisions for

maintenance of wives, children and parents.

It is a natural and fundamental duty of every person to

maintain his parents, wife and children so long as they are
not able to maintain themselves.

In the cases below, the courts provided some revolutionary

judgments.


88
Nanak Chand v Chandra Kishore AIR 1970
In this case Hon’ble Supreme Court held that provisions of
this chapter apply whatever may be the personal law by
which the parties are governed.

Mohd. Ahmad Khan v Shah Bano Begum (1985) SC

In this case Hon’ble SC held that Section 125 is secular in
nature which means it is applicable to all irrespective of
their religion.
After this revolutionary judgement of the Supreme Court,
which was truly intended to protect the interest of muslim
women, the muslim community opposed this judgement.
Therefore Parliament passed a Muslim Women’s
(Protection of Rights on Divorce) Act, 1986.
It provided remedies to muslim women. This new Act
allows a muslim woman to avail the remedy available under
section 125 CrPC only if the husband’s consents to it. (more
about it in simpler words in Section 5 of the above act.)

Daniel Latifi v Union of India

In this case court held that wife can claim maintenance
under Section 125 CrPC EVEN WITHOUT CONSENT
OF THE HUSBAND.

Kongine Bala v Vishalashy Sadasivan (1986)

In this case Kerala HC also cleared that divorced wife
includes divorced by mutual consent which means a wife
who is divorced by mutual consent is entitled to get
maintenance under section 125 CrPC.

89
According to section 125 of CrPC, a person having
sufficient means is bound to maintain-
a) Wife (unable to maintain herself)

b) His legitimate or illegitimate minor child, whether

married or not (unable to maintain himself/herself)

c) His legitimate or illegitimate child (not a married

daughter) who has attained majority, if child is physically
or mentally abnormal or having any injury by which he/she
is unable to maintain himself/herself.

d) His father or mother (unable to maintain himself/herself)

The magistrate of 1st class is empowered to make any order

of maintenance for those persons who are mentioned above.

According to Clause 2 of Section 125, the maintenance or

interim maintenance shall be payable from the date of the
order or if it is mentioned from the date of application.

Note:

The Muta Wife is also entitled for maintenance.

*Minor includes below 18.

*Wife includes divorced wife. (as mentioned in the last case
above)

According to clause 3 of section 125 if any person who is

ordered to maintain, fails without sufficient reason, the
magistrate may issue a warrant for levying the amount due.

90
If the amount is unpaid after the execution of warrant there
is a provision of imprisonment for a term extend to 1
month or until payment, if sooner made.

Clause 4 of Section 125 provides that wife is not entitled

for the maintenance or interim maintenance if-

1) She is living in adultery.


2) Without sufficient reason she refuse to live with her

husband.


3) Husband and wife are living separately by mutual

consent.

Under this section the claimant person are entitles for

interim maintenance and expenses of proceedings.
 
Read Muta Marriage – A marriage for enjoyment!

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STEPS TO SUE AS AN INDIGENT PERSON

Order XXXIII, 304 CrPC, 39A Constitution of India

WHO IS AN INDIGENT PERSON?

Poor, Penniless, Pauper

Order XXXIII of Civil Procedure Code provides remedy

to those who need to institute a suit for enforcement of
their rights but are so poor that they cannot afford
expenses on court fee etc.

The object behind this order is that poverty should not

come in way of getting justice.

92
A person is an indigent person who is not having sufficient
means to pay the fee for the plaint or where no such fee is
prescribed he is not entitled to property worth rupees 1,000.

APPLICATION FOR PERMISSION TO SUE AS

INDIGENT

A person may sue as indigent person only when he is so

permitted by the court. When application is made for
permission to sue as indigent person, every inquiry shall be
made in the first instance.

An application for permission to sue as an indigent person

shall contain the following particulars-
1. Particulars received in regard to plaint in suit.
2. List of movable / immovable property belonging to the
applicant with the estimated value.
3. Signature and Verification.

PRESENTATION OF APPLICATION
The application shall be presented to the court by the
applicant in person (NOT BY ANY THIRD PARTY) but if
he is exempted from personal appearance, application may
be presented by an authorised agent. But the agent must be
able to answer the questions regarding the application.

93
 EXAMINATION OF APPLICANT

Where the application is in proper form and duly presented,

the court may examine the applicant or his agent regarding
the merits of the claims and property of the applicant.
To sue as an indigent person, 7 days before notice in
writing shall be given to the plaintiff and if the court is
satisfied the court may withdraw the permission.

WHO MAY APPEAL AS AN INDIGENT PERSON?

Order XLIV

Any person who is entitled to file an appeal but unable to

pay the necessary court fee, may obtain permission of the
court to appeal as an indigent person.

For this purpose, he may present an application to the court
along with a memorandum of appeal. The court may allow
the applicant to appeal as an indigent person, subject to the
provisions relating to suits by indigent person.

PERIOD OF LIMITATION

The application for leave to appeal as indigent person must

be filed within 30 days. But in case of appeal before High
Court, such period is 60 days from the date of decree when
passed.
If there is no reason to reject the application, the court shall
fix a day for receiving evidence in proof or disproof of the
indigence of the applicant. At least 10 days clear notice

94
shall be given to opposite party and the government
pleader.

PROCEDURE IF APPLICATION ADMITTED

Where the application for permission to sue as indigent

person is granted, it shall be numbered and registered. It
shall be deemed the plaint in the suit and suit shall proceed
as a suit instituted in the ordinary manner.
But the plaintiff shall not be liable to pay any court fee or
process fee. The plaintiff shall also not be liable for any fee
for appointment of pleader.
If a person has been allowed to sue as an indigent person,
but he is not represented by a pleader, the court may assign
a pleader to him.

WITHDRAWAL OF PERMISSION TO SUE AS AN

INDIGENT PERSON

The defendant or government pleader may apply to court

for withdrawal of permission granted to the plaintiff.
 
Read these next - Order XXXIII, 304 CrPC, 39A
Constitution of India

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INHERENT POWERS OF THE HIGH COURTS

"Inherent Powers are those powers which are not

mentioned anywhere in the code."

Inherent power/jurisdiction of the High Court may be

exercised in a proper case either to prevent the abuse of the
process of any court or to secure the end of the justice.


Inherent powers of the High Court should be exercised

in exceptional cases.

96
In the following cases the inherent power of the High
Court could be exercised to quash the proceedings-

1. Where there is a legal bar against the institution or

continuance of the proceedings.

2. Where the allegation in the first information or complaint

do not constitute the offence alleged.

3. Where there is no legal evidence adduced in support of

the charge or the evidence adduced clearly or failed to
prove the charge.

Divine Retreat Centre v State of Kerala SC 2008


In this case Supreme Court held that there are three
circumstances under which the inherent jurisdiction under
section 482 of CrPC may be exercised-
1. To give effect to an order under the code.

2. To prevent abuse of the process of the courts.

3. To otherwise secure the end of the justice.

The High Court does not have power to quash the

proceedings in police investigation consequent upon a FIR
made to the police in a cognizable case. It has no power to
interface with the legal rights of the police to investigate a
cognizable case.

Note: No limitation period has been prescribed for making

an application under section 482 of CrPC. However the
application is to be filed within the reasonable time.

97
Ashok Kumar Singh v State of Bihar CrLT SC 1993

In this case Supreme Court held that the High Court while
exercising its jurisdiction under section 482, can not order
stay of arrest of accused during the investigation.

INVESTIGATION AFTER CHARGESHEET

In the case of State of Punjab v CBI (Central Bureau of

Investigation) and others SC 2011,

Supreme Court held that fresh investigation or re-
investigation after filing of chargesheet by police can be
ordered by High Court under section 482 of CrPC to
secure the end of justice. Further held that, inherent
powers of High Court is not limited or affected by
section 173(8).

Cancellation of Bail by High Court

For the end of justice the High Court may order for the
cancellation of bail using its inherent powers under section
482.

Quashing of FIR by High Court

In case of D.C Jain v UOI 1994 Punjab and Haryana High
Court,

The allegation in FIR prima facie constituted the offence of
cheating and a civil suit was also pending in respect of the
same offence. It was held that pendency of civil suit is no
ground for quashing the FIR.

98
Quashing of charge → Yes

Quashing of chargesheet → Yes

Quashing FIR on account of delay: It was held in case of

Jagdish Ram v State of Rajasthan that,

FIR do not deserve to be quashed by High Court in
exercise of power under section 482 of the code merely
on account of delay.
 

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LEASE UNDER TPA

(Section 105 - 117)

LEASE IS TRANSFER OF POSSESSION

Section 105 defines lease. Lease is a transfer of right of

enjoyment of an immovable property made for a certain
period, in consideration of a price paid or promised to
be made or money, share of crops, service or any other
thing of value to be given periodically or on specified
occasions by the transferee to the transferor.

Lease is not transfer of ownership of property, only

possession is given.

100
The transferor is called Lessor (Landlord) and the
transferee is called Lessee (Tenant)

ESSENTIAL ELEMENTS OF LEASE

1. Parties
The guardian of the minor may grant lease for the period of
5 years (with additional period of 1 year once the child
attains majority) (reference made to section 8 of Hindu
Minority and Guardianship Act), for more than this
permission of court is required.

2. Possession
(only immovable) (only usufruct is transferred)

3. Premium

4. Period

101
PREMIUM
The contract of lease must be supported with some
consideration. The consideration in lease may be premium
or rent.
Where the whole amount to be recovered as a consideration
from the lessee in lump-sum (onetime) is called Premium.
When consideration is paid periodically is called rent of
the lease. Rent need not be necessarily in the form of
money, it may be services, share or other thing so rendered.

PERIOD
The right of use and enjoyment must be given to the lessee
for a certain period of time and this time is called the term
of the lease.
The term may be any period of time, longer or shorter even
for perpetuity but it must be specified in the deed.

RIGHTS OF LESSEE
1. Right of accretions.
2. Right to avoid lease on destruction of property.
3. Right to deduct cost of repair.
4. Right to deduct outgoings.
5. Right to remove fixtures.
6. Right to remove crops.
7. Right to assign the interest.

DUTIES OF LESSEE
1. Duty to disclose facts.
2. Duty to pay rent.

102
3. Duty to maintain the property.
4. Duty to give notice of encroachment.
5. Duty to use the property reasonably.
6. Duty not to make permanent structure.
7. Duty to restore possession.

RIGHTS OF LESSOR
Section 108 does not provide for any specific right of the
lessor but, because the rights and duties are co-relative, the
liabilities of the lessee which are given under this section,
are the rights of lessor.

DUTIES OF LESSOR
1. Duty to disclose any material defects in the property.
2. Duty to give possession to the lessee at his request.
3. To provide by covenant a quiet enjoyment of the property
to the lessee.

TERMINATION OF LEASE


(SECTION 111)
There are following ways where a lease is terminated.
1. By lapse of time.

2. By happening of specified event.

3. By termination of lessor’s interest.


Where the lessor’s own interest in immovable property is

103
limited, lease comes to an end upon the termination of the
lessor interest.

4. By Merger.

Meeting of one interests with another interests. When a
limited interest becomes absolute interest, there is a merger.

For Example-

If the landlord makes gift or sells the tenanted house to the
tenant. The tenant does not remain a tenant, he becomes the
owner of the house.


This rule is based on the maxim-


“Nemo Potest esse tenens et dominus”
It means no body can be both a landlord and a tenant of the
same property.

5. By express surrender.

Surrender is opposite of merger. In a merger a larger
interest is merged with smaller interest.

For Example-

Where a tenant vacates the premises before expiry of the
term, the lease ends.

6. By implied surrender.

When a lessee accepts from the lessor a new lease of the
same property which is already  leased to him, there is
implied surrender of the earlier lease and a new lease is
formed.

104
7. By forfeiture.

Means loss of the right of the lessee to use the property by
some fault on his part. Lease is terminated by forfeiture on
following grounds-
a. Breach of express conditions by lessee.
b. Denial of the title of landlord.
c. Insolvency of the lessee.

8. By expiry of notice to quit.

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LEGITIMACY AND
ACKNOWLEDGEMENT IN MUSLIMS

Parentage - Maternity / Paternity


Parentage is the relation of parents to their children. The

parentage include maternity and paternity.
Maternity is the legal relation between mother and the
child.

Paternity is the legal relation between father and the child.
Parentage is generally used for legal relationship which the
child has with the parents. These legal relationship are

106
associated with certain rights and duties such as rights of
inheritance, maintenance and guardianship.

Maternity how Established:

Under Sunni Law the maternity of a child is established in

the woman who gives birth to the child irrespective of
whether the birth was the result of a valid marriage or
adultery (Zina).

But under Shia Law only birth is not sufficient to establish

maternity. It has to be also proved that the birth was a result
of a lawful marriage.

So we can say under Sunni Law an illegitimate child has

his maternity in the woman who gave birth and the
child is entitled to inherit from mother alone.

But under Shia Law an illegitimate child has neither

maternity in woman who gave birth nor paternity in the
father. So in Shia Law the legitimate child can inherit
neither from father or mother.

Paternity how established:

Paternity of a child can only be established by marriage

between his or her parents. The marriage may be valid or be
irregular. But it does not become void. Paternity is
established in the husband of mother of a child.

107
Paternity established in a person said to be a father by proof
or legal presumption that the child was begotten by him on
a woman who was at the time of conception his lawful wife
and was in good faith and reasonably believed by him to be
such or whose marriage being valid.
An issue of void marriage has neither paternity nor
maternity under Shia Law.

LEGITIMACY IN MUSLIM LAW

A person born in lawful marriage is said to be the legitimate

child of the spouses. So the main point in case of legitimacy
of a child is marriage between his or her parents.

Special notes regarding the Presumption of Legitimacy

1. A child born within six months after the marriage - the
child is Illegitimate unless the father acknowledges the
child.

2. A child born after six months from the date of marriage is

presumed to be legitimate.

3. A child born after dissolution of marriage is legitimate-


a. Under Shia Law if born within 10 months.

b. Under Hanafi Law if born within 2 years.

c. Under Shefai and Maliki if born within 4 years.

108
Legitimacy when conclusively presumed (section 112 of
Indian Evidence Act)

According to section 112 of Indian Evidence Act, if a child

is born during the marriage or within 280 days after
dissolution of marriage, the child shall be presumed to be
legitimate child of that spouses.

The Evidence Act supersedes the rule of Muslim law. The

question arises whether the provision of Indian Evidence
Act supersedes the provisions of Muslim law. Opinions are
divided but the balance of authority remains in favour of
Indian Evidence Act.

ACKNOWLEDGEMENT IN MUSLIM LAW

Muslim law does not recognise the institute of adoption

which is recognised by other systems.

Muslim law recognise the institution of

'IKRAS' (acknowledgement) where the paternity of a child,
which means his legitimate decent from his father cannot be
proved by establishing a marriage between his parents at
the time of conception of birth.

Muslim law recognises acknowledgement as a method

where by such marriage and legitimate decent can be
established as a matter of substantive law for the purpose of
inheritance.

109
Mohammed Allahdad Khan v Mohammed
Ismail Khan (1887)

Justice Mehmood held that where marriage cannot be
proved by direct evidence and no legitimacy be established,
Muslim law prescribes a means whereby the marriage and
legitimacy may be established as a matter of substantive
law and that is acknowledgement of paternity.

Acknowledgement under Muslim law is a rule of

Substantive Law and not a rule of evidence. It means it is
not a presumption under the Evidence Act.
It confers status of sonship and rights to succeed. A child
whose illegitimacy is proved by reason of the union
between the parents not being lawful, such child cannot be
proved by acknowledgement.

Necessity of acknowledgement of legitimacy.

When there is a direct proof of marriage and a child born

out from such marriage, the question of acknowledgement
does not arise because in such cases the legitimacy is ipso
facto established.
If there is no such direct proof of legitimacy so legitimacy
may be proved by indirect proof which is called
acknowledgement.
Note: Acknowledgement is made by the father only not
mother.
In other words the doctrine applies only to cases of
uncertainty about the legitimacy. Acknowledgement is

110
made on the assumption of a lawful union of the parents
and the acknowledged child.

BASIC PRINCIPLES OF ACKNOWLEDGEMENT

1. Express or implied acknowledgement

It is not necessary that an acknowledgement should be
express, it may also be implied. The acknowledgement may
be of a son or daughter, but it must be made by the father
only. The acknowledgement of the child must not be casual.

Muhammad Ali Khan vs Muhammad Ibrahim Khan 1929 PC

The father made the acknowledgement of the child in a
casual manner. He never intended that his
acknowledgement should have serious effects. It was held
by the Privy Council that the act of the father is not
sufficient to confer the status of legitimacy.

2. Age of the Acknowledger

The age of the parties must be such that it is possible that
they may be father and son. According to Bailie, the
acknowledger must be at least 12.5 years older than the
person acknowledged.

3. The child of others

The child who is acknowledged must not be known as a
child of another.

111
4. Offspring of Zina
An offspring of Zina is one who is born either without
marriage or a mother who was the married wife of another
or of void marriage.
When the man has committed Zina with a woman, and she
has delivered a son, such son cannot be acknowledged. So
the acknowledgement must be of the child who is offspring
of a legal marriage.

5. Legal marriage possible between parents of the child

acknowledged
The acknowledger and the mother of the child must have
been lawfully joined in marriage at the time when the child
was begotten. It is essential to show that lawful marriage is
possible between the acknowledger and the mother of child.
And the child is not the fruit of an adulterous intercourse.
Similarly if it is definitely proved that no marriage took
place between the parties, the issue will be illegitimate and
the acknowledgement will be ineffective.

6. Person acknowledged should confirm

acknowledgement
The child if adult, must confirm the acknowledgement.

7. Competency of the Acknowledger

The acknowledger must of competent to make a contract
which means he must be major and of sound mind.

112
 EFFECTS OF ACKNOWLEDGEMENT

Acknowledgement produces all the legal effect of a natural

paternity and vests in the child the right of inheriting from
the acknowledger.
In the the case of wife, which means the mother of
acknowledged son, it has the effect of giving her the status
of legal wife and hence the right of maintenance and
inheritance.
 

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113
 WritingLaw.com

MARRIAGE

Marriage is a sacred institution. It is the very foundation of

a stable family and civilised society. It gives status and
security to the parties and their offspring. It is often said
that marriage is performed or done for carrying on family
lineage and procreation of children. But marriage is
something more pious and pure in itself.

But all marriages are not successful and eternal. At

present many cases come to the face of judiciary due to
differences in interest and opinion among couples.
 

114
 REASONS FOR MATRIMONIAL DISPUTES

Infidelity: If either of spouse has extra marital affair or

marriage like relation with the person other than his or her
own spouse.

Domestic Violence: Domestic violence is an act of violent

and harsh behaviour (both physical and mental) of one
member of the family towards another.

Control: Exercising unnecessary control and wanting to

“get things done in your way” weakens the bond of
marriage.

Finances: If one spouse spends money at extreme and

another is a saver, there are chances for conflict to arise.

Lack of Commitment: The reasons for this may vary from

person to person.

Lack of Communication: In today’s busy social and

professional lifestyle spouses rarely get time to
communicate with each other.
 

MATRIMONIAL RELIEFS UNDER HINDU

MARRIAGE ACT
Keeping in view the high rate of marital discord, several
matrimonial reliefs have been provided in the Hindu
Marriage Act, 1955.

115
Some of them are the-
Section 9 - Restitution of Conjugal Rights.
Section 10 - Judicial separation to help cool down tempers.
Section 11 - For void marriages.
Section 12 - Voidable marriages for nullity of legally
irregular marriages.
Section 13 - Divorce.
 

RESTITUTION OF CONJUGAL RIGHTS

When one spouse leaves the other or withdraws the
company of the other without any reasonable reason, the
aggrieved spouse may go to the court for seeking remedy.

This remedy has been statutorily provided under all

personal laws-
Section 9 of Hindu Marriage Act.
Section 32-33 of Divorce Act.
Section 36 of Parsi Marriage And Divorce Act.
Section 22 of the Special Marriage Act.
 
The following essentials have to be proved-
*The withdrawal by the respondent from the society of the
petitioner (aggrieved party).

*The withdrawal is without any reasonable or lawful

ground.

*The court must get satisfied with the truth of the

statement made in the petition.

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 JUDICIAL SEPARATION

It is provided under Section 10 of Hindu Marriage Act,

1955. It is a platform of last resort before the legal breakup
of the marriage, that is divorce.

As soon as a decree for judicial separation is passed, a

husband or a wife is under no compulsion to live with
his / her spouse.

The aggrieved party to the marriage may present a petition

on any of the grounds stated in the provisions for divorce
under Section 13 of the Hindu Marriage Act for a decree of
judicial separation.

If there is no cohabitation between the parties to the

marriage for one year or more after the passing of the
order for judicial separation, the parties then may apply
for divorce.
 

DIVORCE
The term divorce comes from Latin word ‘divortium’ which
means ‘to separate’. 


It means “the legal separation of husband and wife.”

117
The following are the grounds for divorce as mentioned
under Section 13 of the Hindu Marriage Act, 1955.

Adultery: The act of indulging in any sexual relationship

including intercourse outside marriage is termed as
adultery.

Cruelty: A spouse can file a divorce case when he/she is

subjected to any mental and physical injury that causes
danger to life, limb, and health like denying food,
continuous ill-treatment and dowry-related abuses,
uncontrollable and unreasonable sexual acts.

Leading Case:

Dastane v Dastane

Desertion: If one of the spouses voluntarily abandons his/

her partner for at least two years, the abandoned spouse
can file a divorce case on the ground of desertion .


Two essentials required -


a) Factum of desertion (statement of desertion)

b) Animus descidendi (intention to desert)

Conversion: In case either of the spouse converts himself/

herself into another religion, the other spouse may file a
divorce case.

Mental Disorder: A mental disorder can become a ground

for filing a divorce if the spouse of the petitioner suffers

118
from incurable mental disorder and insanity and the
petitioner cannot expect to stay together.

Leprosy: In case of a ‘virulent and incurable’ form of

leprosy, a petition can be filed by the other spouse based on
this ground.

But this was the ground prior to the Personal Laws
(Amendment) Bill, 2018.
(Leprosy is being removed as a ground for divorce as it is
now a curable disease.)

Venereal Disease: If one of the spouses is suffering from a

severe disease that is easily communicable, a divorce can
be filed by the other spouse. The sexually transmitted
diseases like AIDS are accounted to be venereal diseases. 

Key point : Disease must be incurable.

Renunciation: If a spouse renounces all worldly affairs by

embracing a religious order, then other spouse may take
divorce.

Not Heard Alive: If a person is not seen or heard alive by

those who are expected to be ‘naturally heard’ of the
person for a continuous period of seven years, the person
is presumed to be dead. The other spouse should need to file
a divorce if he/she wants to remarry.

Section 24 of Hindu Marriage Act provision has also been

made to help the victim spouse for maintenance pendent lite
and expenses of proceedings.

119
Section 25 of Hindu Marriage Act provides for permanent
alimony and maintenance to the spouse.
 

Read other Marriage notes and laws.

Read about Void and Voidable Marriages.

Read about Muta Marriage - A temporary marriage mainly

for sexual enjoyment.

Read other Law Notes.

Read Hindu Laws.

Read Special Marriage Act.

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 WritingLaw.com

CAVEAT
Added in 1976
Section 148-A of Civil Procedure Code

CAVEAT - To give notice before taking any action.

121
Caveat remain in force for 90 days.


Caveat is not defined in Civil Procedure Code but it may be

defined as a request made to the court that no order in a suit
or proceeding instituted or likely to be instituted before it
may be passed without hearing the person filing the caveat.

The person who files a caveat is known as Caveator.

Through caveat, the caveator claims his right to appear

before the court on hearing of an application made or likely
to be made in a suit instituted or about to be instituted.

The person by whom such application has been made or

expected to be made is called Caveatee.

OBJECT OF SECTION 148A

1. To safeguard the interest of the Caveator.

2. To avoid the multiplicity of proceedings.

FORM OF CAVEAT

Caveat is lodged in the form of a petition.

WHO MAY LODGE A CAVEAT?

Any person who claims a right to hearing on an application

filed or expected to be filed is competent to lodge a caveat.

122
To become entitled to lodge a caveat, it is not necessary that
the person is a party to the suit.

Section 148-A of Civil Procedure Code

Read more Law Notes

123
 WritingLaw.com

Mediation, Matrimonial Disputes and Counselling

Marital problems might occur due to,

● Unfulfilled basic needs 

● Misunderstandings

● Alcohol addiction

● Dowry demand

● Ego problems 

● Adamant differences in opinion etc.

124
A few alternatives to legal remedies could be-

1. Mediation.
Meditation is a form of Alternative Dispute Resolution
(ADR) which aims to assist two or more persons involved
in a dispute in reaching a mutual agreement. The content of
that agreement is decided by the parties themselves rather
than accepting something imposed by a third party.


Mediators are those professionals who are impartial,

unbiased and who use appropriate techniques and skills for
an effective dialogue between parties.

2. Marriage Counselling.
Marriage Counselling is also an excellent way to figure out
as to what to do. The marriage counsellor will ask questions
that help one think more clearly about what is going on and
what he/she wants. The marriage counsellor will help the
parties to communicate better with each other and provides
innovative ways to resolve conflicts. As Divorce is such a
step that can have impact on the parties, their children and
their extended families, counselling should be one method
to overcome the problem of matrimonial disputes.

Counselling is therefore an useful mean of saving or ending

the marriage peacefully. By counselling the spouses gets a
safe place to share their feelings about the divorce and the
relationship. 

An experienced counsellor can help the couple save the

125
marriage by pointing their own mistakes instead of ending
up their relationship.

There have been many cases where counselling has played

an important role and improved mutual understanding and
saved the relationship.
The counselling centres should concentrate on the
improvement of interpersonal relationship.
Importance of adjustment must be explained to the couples
through counselling.

Suggestions for marital issues.

Personal family issues should not be discussed in front of

neighbours, friends or any third person because they do not
know the actual worth and position of your spouse in your
life. Unnecessarily spreading your personal problems does
little to solve the issue. In most cases it magnifies the
problems.

Due to role conflict, marital conflicts occur. Awareness of

roles and responsibilities and its performance is an essence
of preventing marital conflicts.
Family organization programs should be conducted to
prevent family disorganization and to understand that
family is the real strength of a person.

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126
 WritingLaw.com

MUTA MARRIAGE MEANING

The concept of Muta Marriage is recognized under Muslim

Law in Shia sect (athna ashria school).

The meaning of muta is enjoyment. Muta Marriage is a

marriage for a fixed period of time. Thus Muta
Marriage is a marriage only for sexual enjoyment for a
fixed period of time.
 
RULES OF MUTA MARRIAGE
1. The parties must have attained the age of puberty, that
is above 15 years of age.

127
2. There is no restriction on the number of muta wives.

3. There must be a free consent by the parties.

4. The time period and dower must be mentioned on nikah

nama.

5. The cohabitation between the parties is lawful.

6. The children born out of such marriage are legitimate

and have right to inherit the properties of both the
parents.

7. Husband and wife don't have any mutual right of

inheritance.

8. Muta wife is not entitled to claim maintenance under

personal law but she can claim under Section 125 of CrPC.

9. The wife is entitled to get full Dower if husband cohabits

but if husband doesn't cohabits then wife is entitled to half
dower.

10. Divorce is not recognized under muta marriage.

 
TERMINATION OF MUTA MARRIAGE
1. Expiry of time period.
2. Death of the either party.
3. Hiba I Muddat (husband gifts the unexpired term of
marriage)

128
Note: The parties must not be under prohibited degree of
relationship.
 

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129
 WritingLaw.com

NATURAL JUSTICE

Natural justice is an important concept of law. It is also

known as substantial justice, universal justice or fair
play in action. It is a branch of public law. It is based on
law of equity.

From the days of Adam and Kautilya Arthashastra, the rule

of law has had the stamp of natural justice which makes it
social justice.
The principles of natural justice are -

● Nemo judex in causa sua - It means no one shall be
judge in his own case.

130
● Audi alteram partem - It means both the parties/sides
must be heard. No man should be condemned unheard.

Maneka Gandhi vs Union of India, 1978

It is well established that even when there is no specific
provision in a statute or rules made for showing cause
against the action made, which affects the right of that
individual, the duty to give reasonable opportunity to be
heard will be implied from the nature.

The principles of natural justice are binding on all courts,

judicial bodies and quasi judicial authorities.

Absence of bias, interest or prejudice

The first requirement of natural justice is that the judge
should be impartial and neutral and must be free from
bias. He cannot act as a judge in a cause in which he
himself has some interest either pecuniary or otherwise.

Types of bias.

There can be many types of bias. Main types of are,

1. Pecuniary bias - It concerns with financial interest in
subject matter.
2. Personal bias - A judge may be relative, friend or
associate of a party.
3. Official bias - When judge has general interest in the
subject matter.

131
 Exclusion of principles of natural justice.

1. Where a statute expressly excludes.


2. Where the action is legislative in nature.

3. Where doctrine of necessity applies.

4. Where facts are admitted or undisputed.

5. Where enquiry is of confidential nature.

6. Where preventive action is to be taken.

7. Prompt and urgent action is necessary.

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132
 WritingLaw.com

ONEROUS GIFTS MEANING IN PROPERTY LAW

Onerous Gifts is defined under Section 127 of Transfer of

Property Act, 1882. (all links automatically open in new
tabs.)

This section regarding onerous gift is based on the maxim-

"Qui sentit commodum, sentire debet et onus"

It means he who receives advantage must bear the
burden also.
 
The rule is that if a gift is in the form of single transfer to
the same person of several things of which one is burdened

133
by an obligation, and the others not, the donee can take
nothing by the gift unless he accepts fully.

The principle is that he who accepts the benefit of

transaction must also accept the burden of same.
But where the gift of several properties is made in the form
of two or more separate or independent transfer, the donee
is at full liberty to accept any of them and reject the rest.
 

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134
 WritingLaw.com

WHAT IS OSTENSIBLE OWNER?

Section 41 of Transfer of Property Act defines ostensible

owner.


Ostensible owner is a person who has all the indications
of ownership and looks like owner of property but is not
the real owner.
In simple words,

A person may have possession and enjoyment of the
property and may also have his name entered in the official
records but even then he may not be the real owner of that
property.

135
Such situation may arise in case if a person purchases a
property in the name of another person then it is called
Benami transaction and the person in whose name the
property is purchased is called as Benamidar.

So a Benamidar is an ostensible owner.

This section is applicable only where the transferor is an

ostensible owner. But it is difficult to ascertain whether a
person is ostensible owner or real owner because he has all
the features of real owner except the intention to own the
property. So it is for the court to establish whether the
transferor was an ostensible owner or not.

Related Case-

Jay Dayal Poddar vs Biwi Hazara AIR 1974

Supreme Court held that the person is ostensible owner or
not is a subjective question to be decided on the basis of
facts and circumstances.

The burden of proof that a transaction is benami lies on

the person who claims that he is the real owner.
 
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 WritingLaw.com

OWNERSHIP AND POSSESSION EXPLAINED

OWNERSHIP
Austin- Ownership is a right indefinite in point of user
unrestricted in point of disposition and unlimited in point of
duration.

From above definition we find three elements:-


1. Indefinite user.

2. Unrestricted disposition (dispose off)

3. Unlimited duration.

137
Salmond- Ownership in its most comprehensive
significations denotes the relation between a person and
right that is vested in him.

G.W Paton- Ownership includes four rights:-


1. Right of user

2. Possession which also includes eliminating other from
that thing.

3. Right of transfer.

4. Disposition as he wishes.

Acquisition of ownership:
According to Salmond, Ownership can be acquired in two
ways:-

1. By operation of law.

2. By reason of some act or event.

Subject matter of ownership:

Consists of material objects like land, immovable or
movable properties etc. The wealth and assets of a person
like interest in the land, debts, share in the company,
patents, goodwill, copyrights etc may also be subject matter
of ownership.

Thus intangible rights may also constitute subject matter of

ownership.

138
 KINDS OF OWNERSHIP

1. Corporeal and Incorporeal Ownership

Corporeal → ownership of material objects.

Incorporeal Ownership → ownership of rights.

2. Sole ownership and Co-ownership


Sole ownership → vested in single person.

Co-ownership → vested in two or more persons at the same
time.

3. Vested ownership and Contingent ownership

Vested ownership → title of the owner is already perfect.

Contingent ownership → While in this the title is imperfect
but is capable of becoming perfect on the fulfillment of
some conditions.

4. Absolute and limited ownership

Absolute ownership → all the rights like possession,
enjoyment and disposal are vested in a person without any
restriction.

Limited ownership → But when there are restrictions about
disposal or use and enjoyment.
For example-

Before Hindu Succession Act, 1956 the woman had only a
limited ownership over the estate because she held the
property only for her lifetime and after her death the
property passed on to the heirs last holder of the property.

139
5. Legal and equitable ownership
Legal ownership has its origin in the rules of common law
and equitable ownership is that which emanated (emanated-
spread out from a source) from rules of equity. A person
may be the legal owner and another person the equitable
owner of the same thing or right at the same time. Like a
trustee is the legal owner of the trust property and the
beneficiary has no direct interest in the trust property but he
has a right against the trustees to compel them to carry out
the provisions of the trust.

POSSESSION
Possession is the prima facie evidence of ownership. It has
nine points in law.

KINDS OF POSSESSION
1. Corporeal possession and Incorporeal possession
Corporeal possession → on material things like house,
building.

Incorporeal possession → on immaterial or intangible
things.

For Example- Possession of a copyright, trademark.

2. Mediate possession and Immediate possession

Mediate possession → of a thing through another person.
Also known as indirect possession.

For Example- If I purchase a book through my servant.


140
Immediate possession → Also known as direct possession.

For Example- If I purchase a book by myself, I have
immediate possession of it.

3. Constructive Possession
Constructive Possession means having power and intention
of retaining control over property but without actual control
or actual presence over it.
According to Paulock, Constructive possession is
possession in law and not actual possession.

Keaton doesn’t recognise this kind of possession.

4. Concurrent possession and Duplicate possession

As a general rule two persons cannot be in possession of the
same thing at one and the same time.

But when two persons are having possession on the same
thing this is concurrent or duplicate possession.

5. Adverse possession
Adverse possession means possession by a person initially
holding the land on behalf of some other person and
subsequently setting up his own claim as a true owner of
the land.

Modes of acquiring possession:

1. By taking- Acquisition of possession without consent of
owner. Talking might be rightfully or wrongfully.
2. By delivery- When a person acquires possession with the
consent of owner.

141
3. Operation of law- Possession may be obtained by
operation of law.

For example,

If a person dies, the possession of his property is
transferred to his successor and legal heirs.

Elements of possession:
According to Savigny, possession has two essential
elements.

1. Corpus possessionis

2. Animus Domini

Corpus possessionis means effective control over the

thing.

Animus Domini means the intention to hold the property.

Bridges v Hawkeworth 1851


The court held that the hundred rupees note found on the
floor of a shop passed into the possession of the finder
rather than the shopkeeper. The decision has been supported
by Paullock and Salmond.

142
There are generally two types of person which the law
recognise namely - natural person & artificial person. The
former refers to human being while later refers to other than
human being which the law recognised as having duties and
rights. One of the most recognised artificial person is
corporation.

Definition of legal person

Salmond- A person as any being to whom the Law regards
as capable of rights or duties. Any being that is so capable,
is a person whether human being or not, is a legal person.
Paton- Legal personality is a medium through which some
such units are created in whom rights can be vested.

143
 Legal status of unborn person
Generally an unborn person is not a legal person but for
some purposes he is considered as a legal person.

For example-

A gift maybe made to a child who is unborn. Although the
rights conferred on unborn are contingent (conditional,
resting, dependent upon) because it depends on his taking
birth alive.
Legal status of dead person
Salmond says that the personality of human being starts
with birth and ceases with his death. Therefore dead men
are no legal person in the eyes of law.
Even then the law protects the body of a dead man,
reputation and the property.

Ashray Adhikan Abhiyan vs UOI (2002)


Supreme Court held that even a homeless person when
found dead on the road; he has right of cremation as per his
religious faith.
Legal status of animals
Law does not recognise animal as a legal person because
they are only thing and have no natural or legal rights.

Salmond says, animals are only objects of legal rights and
duties but never the subject of them.

Recently in Karnail Singh vs State of Haryana 2019 Court

held that from now all animals will be considered as
"persons" that is juristic entity.

Even the state of Uttarakhand has in recent recognized
animals as persons.

144
 Legal status of idol
It has been judicially recognised that idol is a legal person;
it can hold the property but the position of idol is like a
minor because the priest acts as a guardian to look after the
interest of idol.

The PC in historic case Pramatha Math Mullick v

Pratyuman Kr Mullick held that an idol is a legal person
and it is represented by the next friend.

Yogendra Nath Naskar v Commissioner of Income Tax SC

1969

Supreme Court held that an idol is a juristic person capable
of holding property and of being taxed through its Shebait
who is entrusted with the possession and management of its
property. An idol can be treated as a unit of assessment for
assessing its liability under the Income Tax Act.

(Shebait- Shebait is that person who serves the deity in the
temple.)

Legal status of mosque

In case of Maula Bux v Hafizuddin Lahor HC 1925, court
held that mosque is a legal person, can sue and can be sued.
But the privy council in the case of Masjid Shahid Ganj
Case 1940 held that the mosque are not artificial person in
the eyes of law so no suit can be brought by mosque or
against mosque.

145
 Legal status of Guru Granth Sahib
Supreme Court in Siromani Gurudwara Prabandhak
Committee v Somnath Das SC 2000, held that Guru Granth
Sahib the holy Granth of Sikh is a legal person.

Court further made it clear that Guru Granth Sahib stands

on a different footing than the holy books of other religion
like Gita, Ramayan, Bible, Quran etc.

Legal status of corporate personality

Corporate personality is a creation of law. A corporation is
an artificial person enjoying in law a capacity to have rights
and duties and holding properties.
 

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146
 WritingLaw.com

PUBLIC INTEREST LITIGATION

Justice Krishna Iyer and Justice PN Bhagwati developed

the concept of PIL. This concept has been taken from
USA.
Upendra Bakshi has recognized it as Social Interest
Litigation.
 
Rule of Locus Standi says,

"a person whose right is violated will approach to the
court."
But in PIL,

if victim is unable to approach the court due to illiteracy

147
or is economically backward or due to any other reason,
then any person on behalf of such victim may approach
to the court for the protection of his fundamental rights.
 
Related Cases-

People Union for Democratic Rights v Union of India

At the time of Asian Games the workers were working in
inhuman conditions and were getting less remuneration
according to Minimum Wages Act. The word "bonded
labour" was introduced.

Bandhua Mukti Morcha v Union of India 


In Faridcot, Haryana, there was a mine in which there were
bonded labourers working in inhuman conditions and were
not getting wages as prescribed in Minimum Wages Act.

Supreme court held that if a labourer doesn't get
minimum wage then it be considered as "forced
labour".

MC Mehta v Union of India 


Some guidelines were issued-

1. For PIL a person can even post a letter in the name of a
judge of Supreme Court without attaching affidavit.


2. The Supreme Court has power to grant compensation to
the victim in furtherance of PIL.


3. The Supreme Court has power to appoint commission for
investigating the matters related to violation of fundamental
rights.

148
 EPISTOLARY JURISDICTION

When PIL is treated through postcard, letter, newspaper etc

by the Supreme Court then it is epistolary jurisdiction.

Epistolary means "in the form of letters."
 

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149
 WritingLaw.com

PLEA BARGAINING : CRPC

The concept of plea bargaining has been taken from USA.

It was added in 2006. It is also one of the ways of ADR.
(Alternative Dispute Resolution)

Who may apply for plea bargaining?

According to section 265B a person who is accused of an

offence may file an application for plea bargaining in the
court in which such offence is pending for trial.
The application will contain a brief description of the case
and shall be accompanied by an affidavit.

150
After receiving the application the court shall issue notice
to the public prosecutor or the complainant of the case as
the case may be and to the accused to appear on date fixed
for the case.

When the PP (public prosecutor) or the complainant of the

case and the accused appears on the date fixed, the court
will examine the accused in camera.

Cases where plea bargaining is allowed.

1. Offence where punishment is not more than 7 years.

2. The offence which are not against the women and

children.

3. The offence which does not affect the socio-economic

condition of the country.

The central government has determined the offences

which are affecting the socio economic condition of
country-
* Dowry Prohibition Act, 1961
* Sati Prevention Act, 1987
* Protection of Women From Domestic Violence Act,
2005?
* Immoral Traffic Act, 1956
* Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989
* Army Act, 1950

151
* Air Force Act, 1950
* Navy Act, 1957
* Juvenile Justice Act, 2000
* Delhi Metro Railway Act, 2002
* The Explosive Act, 1884
* Cinematograph Act, 1952

4. No plea bargaining is allowed in case of habitual

offender.

THE MUTUAL SATISFACTORY DISPOSITION

According to section 265C, in working out a mutually

satisfactory disposition, the court shall follow the following
procedure.
When a case is instituted on a police report, the court shall
issue notice to the public prosecutor, the P.O/I.O (police
officer/investigating officer) who has investigated the case,
the accused and the victim of the case to participate in the
meeting to work our a satisfactory disposition of the case.
Proviso of this section says that if accused desires then he
may participate in such meeting with his pleader.
When a case is instituted otherwise then on police report,
the court shall issue notice to the accused and the victim of
the case to participate in a meeting to work out a
satisfactory disposition of the case.
It is the duty of the court to ensure that the proceedings
must be voluntarily by the parties.

152
According to section 265D where in a meeting under
section 265C a satisfactory disposition of the case has been
worked out, the court shall prepare a report of such
disposition which shall be signed by the presiding officer of
the court and all other person who participated in the
meeting.
If no such disposition has been worked out, the court shall
record such observation and proceed further according to
the provisions of this court.

According to section 265E where a satisfactory disposition

of the case has been worked out under section 265D, the
court shall dispose off the case in the following manner-

1. The court shall award the compensation to the victim

according to the disposition and hear the parties on the
quantum of punishment, if possible, then the benefit will be
given to the accused under the provisions of probation of
Offender's Act, 1958.

For Example-

Releasing the accused on probation on good conduct.

2. After hearing the parties when the court finds that

minimum punishment has been provided under the law for
the offence committed by the accused, court may sentence
the accused to half of such minimum punishment.

3. After hearing the parties when the court finds that the
offence committed by the accused is not having the

153
minimum punishment then the 1/4th of the maximum
punishment of the offence may be provided to the accused.

According to section 265F, the court will deliver its

judgement in the open court and the same shall be signed
by the presiding officer of the court.

Section 265G : Finality of the Judgement


The judgement delivered by the court under section 265G
shall be final and there is no provision for appeal but there
are tow exceptions to this rule-

1. Special leave petition under article 136.

2. Writ petition under article 226 and 227 in High Court.

Section 265H : Power of the court in Plea Bargaining


For the purpose of discharging its functions under this
chapter, the court which is allowing the plea bargaining
must have the powers in respect of bail, trial of offences
and other matters relating to the disposal of a case.

Section 265K : Statement of accused not to be used


The statement or facts given by an accused in an
application for plea bargaining shall not be used for any
other purpose except for the purpose of this chapter.


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Position and Rights of a Minor in Partnership Firm

(Useful for PT/MAINS)

Section 30: Minors admitted to the benefit of

Partnership.

Who can be a partner?


With combined effect of section 2(e) and section 3,
reference is made from section 10 of Indian Contract Act.
So any person of sound mind, major and not disqualified by
law can be a partner.

155
In general an agreement with minor is void.

Related Case-

Mohori Bibi vs Dharmodar Ghose

But if contract with minor is separable in that case only to

that extent it will be void not the whole contract.

If a minor is admitted into contract for benefits, then such

contract is enforceable.

1. Minor may not be a partner in the firm but may be

admitted to firm for benefits of partnership. (With the
consent of all the partners)

2. Minor can have share in the property and of the profits of

the firm. He may also have access to the accounts of the
firm.

3. Minor's share is liable for the acts of the firm (section 2a)
but liability shall not be personal. [not the unlimited
liability like that of partners (section 25)]

4. Minor may not sue the partners for account or payment

of his share of the property but only when he severs
(detach, cut off, separate) connection with the firm.

Provided that in same case, all the partners consented or a
partner entitled to do may elect to dissolve the firm by
giving a notice. The court will proceed with settling of
accounts as well as for dissolution of firm.

156
5. DOCTRINE OF ELECTION
Within six months of attaining majority or attaining
knowledge that he had been admitted to the benefits of
partnership (whichever date is later).

Minor turned major has to give notice that he has elected to
become partner or not. The notice will only determine his
position.
If he fails to give notice of his election not to become a
partner, then after expiry of six months, he shall become a
partner.

6. BURDEN OF PROOF
After the expiry of six months, the BOP  of the fact that
minor was not having knowledge as regard to the election is
upon the minor itself.

7. When such person elects to become a partner-


● The liability of minor becomes unlimited from the date he
has admitted for the benefits of partnership. (retrospective)
● His share in the property would be equivalent to the
portion for which he was entitled as a minor.

8. When such person elects not to become a partner-


● His liability would continue as those of minor until he
gives public notice.

● His share shall not be liable for any acts subsequent after
the day of notice.

● He is entitled to sue the partners for his share.

157
9. If minor in mean time of six months, represents himself
as partner in the firm and make believe to the third party of
the same, then section 28 will apply.

Related Study Material:


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Read Indian Contract Act, 1872 on one page.

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POWER OF PARDON BY PRESIDENT IN INDIA

Pardon means to forgive a person for the offence he has

done.

Under the Indian constitution the power to grant pardon has

been conferred on the President of India under article 72
and the Governor of states under article 161.

The object behind pardoning power is to correct possible

judicial errors and miscarriage of justice. It is a mean to
prevent innocent from a punishment.
 

159
Under article 72 the mercy petition is filed to the
President and his powers are as follows-

1. Pardon - The president can totally absolve / acquit the

person for the offence and let him go free like a normal
citizen.

2. Commutement - To reduce the type of punishment into

a less harsher one.

For example: Rigorous imprisonment to simple
imprisonment.

3. Remission - To reduce the punishment without changing

the nature of the punishment.

For example: 20 years rigorous imprisonment to 10 years
rigorous imprisonment.

4. Reprieve - A delay is allowed in the execution of a

sentence, usually death sentence for a guilty person to
prove his innocence.

5. Respite - Reduce the degree of punishment looking at

specific grounds like Pregnancy etc.
Note: The judicial powers can be exercised by the president
at any stage which means before, during or after trial.
 

160
 Difference between the pardoning power of President
and Governor

1. President can pardon the death sentence but the Governor

has no power to pardon the death sentence.

2. The President can pardon in case of court martial. But the

Governor cannot pardon in court martial.

3. President exercises his judicial powers for the

punishment which is given under the law made by the
union. Whereas the Governor exercises his judicial powers
for the punishment which is given under the law made by
the state.
 

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RES JUDICATA MEANING

Section 11 of Civil Procedure Code, 1908

Res Judicata means a thing decided.

Res Judicata is the Latin term for "a matter judged",
It can apply in a case where there has been a final judgment
and it is no longer subject to appeal;
It can also be used to bar (stop, block) continued litigation
of a case on same issues between the same parties.
 
The doctrine includes two related concepts - Claim
preclusion and Issue preclusion.

162
 Claim Preclusion
Claim preclusion focuses on baring a suit from being
brought again on a legal cause of action that has already
been finally decided between the parties.

Issue Preclusion
Issue preclusion bars the re-litigation of factual issues that
have already been necessarily determined by a judge as a
part of an earlier claim.
 
Doctrine of res judicata is based on three maxims-
1. Nemo debet bis vexari pro una et eadem causa - It
means no man shall be punished twice for the same offence.

2. Interest Reipublicae Ut Sit Finis Litium - It means it is

in the interest of the state that there should be an end to
litigation. or Litigation must come to an end.

3. Res Judicata Pro Veritate Accipitur - It means that a

judicial decision must be accepted as correct.
 
Nemo bis punitur pro eodem delicto also means almost the
same as Nemo debet bis vexari pro una et eadem causa.
 

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CONTRACT OF BAILMENT
Section 148-181

Contract of Bailment is defined under section 148 of Indian

Contract Act.

A bailment is the delivery of goods by one person to

another for some purpose, upon a contract; If the purpose is
accomplished the property must be returned back or
otherwise disposed off according to the direction of the
person delivering them.

164
● The person who delivers the goods(movable property) is
called the Bailor.
● The person to whom the goods are delivered is called the
Bailee.
● And the contract between the Bailor and Bailee is called
the contract of Bailment.

The contract of Bailment is created only about movable

property.

RIGHTS AND DUTIES OF BAILEE

Duties of Bailee
1. Duty to take care of the goods.

2. Duty to return goods.


After the accomplishment of purpose then it is the duty of
the Bailee to return the goods to the Bailor.

3. To make proper use of goods Bailed.


The use of the goods which is mentioned under the
contract, the use must be according to the contract.

4. Duty not to mix his own goods with the goods of Bailor.

5. Duty not to question the title of the Bailor.

6. Duty of Bailee to pay increase or profit from goods

Bailed.

For Example: A gives a cow to B on bailment and after the

165
bailment cow gives birth to calf. It is the duty of the Bailee
to return cow as well as the calf to the Bailor.

Rights of Bailee
1. Right to get compensation.

2. Right to terminate the contract of Bailment.


If the terms and condition are decided by the parties while
making a contract and the goods are not according to term
and condition of the contract then the Bailee has right to
terminate the contract.

3. Right to get expenses.


If the expenses are incurred by the Bailee regarding the
goods bailed then afterwards the Bailee is entitled to get the
expenses.

RIGHTS AND DUTIES OF BAILOR

Duties of Bailor
1. It is the duty of Bailor to disclose faults in goods bailed.

It is the paramount duty of the Bailor to express the fault of
the goods to the Bailee.

2. Duty of the Bailor to give compensation to the Bailee.

3. Duty to give expenses.

166
Rights of Bailor
1. Right to get his goods back.

2. Right to get the increase or profit from the goods

bailed.

3. Right to get compensation.

4. Right to terminate the contract.

 

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STATUS OF POSTHUMOUS CHILD IN

SUCCESSION

Posthumous means 'occurring or appearing after the death'


For Example,

He was awarded a posthumous military award.

Here we are talking about the status of posthumous child in

succession.
 

168
 WHAT SUCCESSION ACTUALLY IS?

The succession can be either Testamentary or Intestate.

Testamentary means 'relating to or bequeathed or

appointed through a will.'


Intestate means 'not having made a will before one dies.'

The testamentary succession is concerned with the person

who made the will. This is mentioned under Section 30 of
Succession Act.
 
The law of intestate succession is more properly the law of
inheritance which determines the mode of devolution of
property of the deceased on heirs solely on the basis of their
relationship with the deceased and is governed under Hindu
Succession Act, 1956.

Section 20 of Hindu Succession Act recognizes posthumous

child as an heir in intestate succession.


It means the child who was in the womb at the time of

death of intestate who is subsequently born alive shall
have the same right to inherit to intestate as if he or she
had been born before the death of intestate and the
inheritance shall be deemed to vest in such a case from
the date of death of intestate.
 

169
So in simple words, under this section two conditions must
be satisfied-
1. The child must be in the womb at the time of the death of
intestate.
2. The child must be born alive.

Note: In case the child dies subsequently, the property that

he inherited will vest to its own heirs.
 

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 WritingLaw.com

THEORIES OF PUNISHMENT

What is punishment?
Punishment is the penalty on someone as a result of their
wrongdoing.
 
1. Deterrent Theory.
The object of this theory is not only to prevent the
wrongdoer from doing a wrong subsequently but also to
make him an example for society and such other person
who have criminal tendencies.

Locke is the supporter of this theory and said that, "every

171
commissioner of crime should be made a 'bad bargain' for
the offenders."
 
2. Preventive Theory.
The object of this theory is to prevent or to disable the
offenders from repeating the offence by giving them
punishment.
Supporter of this theory is Paton.
 
3. Reformative Theory.
This theory remarks that the object of punishment should be
the reform of the criminal.
Mahatma Gandhi is of the opinion that, "Hate the sin, not
the sinner."
 
4. Retributive Theory.
This theory proposes tit for tat, eye for an eye, tooth for a
tooth. The punishment has to be proportional for the crime
committed. The believers of this theory says that criminal
must suffer the pain.
 
5. Expiatory Theory.
Theorist of this theory say that the object of the punishment
is self realisation. If the offender after committing offence
realizes his guilt then he must be forgiven.
 

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TRIAL OF WARRANT CASES BY MAGISTRATE

This trial is divided into two parts.

a. Trial of warrant cases by magistrate where case instituted
on a police report (section 238 to 243, 248, 249, 250) Click
here to read all these sections in browser.

b. Trial of warrant cases instituted otherwise than on a

police report (section 244-250)

173
 Trial of warrant cases by magistrate where cases
instituted on police report.

Section 238 : Compliance with section 207

When in any warrant case instituted on a police report,
when the accused appears or is brought before a magistrate
for the trial, the magistrate shall satisfy himself that he has
complied the provisions of section 207 (supply the copy of
police report and other related document to the accused)

Section 239 : When accused shall be discharged

This section should be read with section 240. It is the duty
of the court to frame the charges and therefore the court
must consider the matter. This section says that magistrate
has to record his reasons for discharging the accused.

State of Himachal Pradesh v Krishan Lal 1987


In this case Hon'ble Supreme Court held that there was
sufficient material on record and the judge had found that
the prima facie case has been made out but his successor
judge came to the conclusion on the same material that no
charge could be made and hence passed an order of
discharge. It was held by Supreme Court that no order of
discharge could be passed by the successor.

Section 240 : Framing of charge

Section 240 not only authorises the magistrate to consider
the police report and the document sent with it under
section 173 but to examine the accused if he thinks fit.

174
According to clause 2 of this section the charge shall then
be read and explained to the accused, and he shall be asked
whether he pleads guilty of the offence charged or claim to
be tried.

Section 241 : Conviction on plea of guilty

After framing the charge if the accused pleads guilty, then
the magistrate shall record the plea and convict him
according to his discretion.

Section 242 : Evidence for prosecution

If the accused does not plead guilty then the magistrate
does not convict him and the magistrate shall fix a date for
the examination of witnesses.

Proviso of this section says that magistrate will supply in

advance the statement of witnesses recorded during the
investigation by the police.

According to clause 2 the magistrate may summon to the

witnesses to attend the court or to produce any document,
on the application of prosecution.
According to clause 3 the magistrate shall proceed and may
permit the cross-examination of any witness.

Section 243 : Evidence for defence

The magistrate shall call to the accused to enter in his
defence and produce evidence and will allow for cross-
examination.

175
Section 248 : Acquittal or conviction
The trial ends either in conviction or acquittal of the
accused.

Section 249 : Absence of complainant

If the complainant is absent on the day fixed for the hearing
of the case, the magistrate may in his discretion discharge
the accused if-

a. The offence is compoundable.

b. The offence is non cognizable.

c. The proceedings have been instituted on complaint.

d. The charge has not been framed.

All above elements necessary.

Under this section the magistrate has a discretion, he may

discharge the accused or may proceed with the case. It is
done by the magistrate before the charge has been framed.
After the framing of charge the magistrate cannot discharge
the accused due to default of appearance by the
complainant.

Death of complainant in trial.

Where in course of trial for different defamation the
complainant dies, the magistrate need not discharge the
accused but can continue with the trial.

Note: Where a complaint is dismissed on default there is no

bar for institution of second complaint for same offence.

176
Section 250 : Compensation for accused without
reasonable cause.
The person liable to pay compensation is a person on whose
complaint or information the accusation is made. Here a
person includes a juristic person also.

Compensation is awarded to the person who has suffered

from the accusation and not to his relatives. Before
awarding compensation the magistrate shall not only record
but also consider any objection which the complainant or
informant raised against the direction. The provisions are
imperative (of vital importance) in nature and must be
complied with.

Trial of warrant cases instituted otherwise than on a

police report.

Section 244 : Evidence for prosecution

When a warrant case is instituted otherwise than on a police
report, the accused appears or brought before a magistrate,
the magistrate shall proceed for evidence for prosecution
and summon the witnesses or document on the application
of prosecution.

Section 245 : When accused shall be discharged

The discharge order can be passed when the magistrate
finds that "no case has been made out."

177
Section 246 : Procedure where accused is not discharged
If magistrate is satisfied then he can frame the charge and
proceed further. The charge shall be read and explained to
the accused and he shall be asked whether he pleads guilty
or not or has any defence to make.

According to clause 3 if accused pleads guilty the

magistrate shall according to his discretion convict the
accused. If accused does not plead guilty then the
magistrate will move forward.

Section 247 : Evidence for defence

The accused will be called to enter upon his defence and to
produce evidence.
Conclusion of trial same as the trial which are conducted by
the magistrate in warrant cases, where case instituted on
police report (section 248 to 250)

Section 248 : Acquittal or conviction

The trial ends either in conviction or acquittal of the
accused.

Section 249 : Absence of complainant

If the complainant is absent on the day fixed for the hearing
of the case, the magistrate may in his discretion discharge
the accused if-

a. The offence is compoundable.

b. The offence is non cognizable.

c. The proceedings have been instituted on complaint.

d. The charge has not been framed.

178
Under this section the magistrate has a discretion, he may
discharge the accused or may proceed with the case. It is
done by the magistrate before the charge has been framed.
After the framing of charge the magistrate cannot discharge
the accused due to default of appearance by the
complainant.

Death of complainant in trial.

Where in course of trial for different defamation the
complainant dies, the magistrate need not discharge the
accused but can continue with the trial.
Note: Where a complaint is dismissed on default there is no
bar for institution of second complaint for same offence.

Section 250 : Compensation for accused without

reasonable cause
The person liable to pay compensation is a person on whose
complaint or information the accusation is made. Here a
person includes a juristic person also.
Compensation is awarded to the person who has suffered
from the accusation and not to his relatives. Before
awarding compensation the magistrate shall not only record
but also consider any objection which the complainant or
informant raised against that direction. The provisions are
imperative (of vital importance) in nature and must be
complied with.
 
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MORTGAGE DEFINITION
(Section 58 of Transfer of Property Act)

A mortgage is a transfer of an interest in specific

immovable property for the purpose of securing the debt.
 
ELEMENTS OF MORTGAGE
1. There must be a transfer of an interest.

2. There must be specific immovable property intended to

be mortgaged.

3. The transfer must be made to secure the debt.

180
 PARTIES IN A MORTGAGE

Mortgagor - is the person who transfers the interest and

takes loan.
Mortgagee - is the person who receives the interest and
gives loan.
 
KINDS OF MORTGAGE

1. Simple Mortgage.
Where without delivering the possession of the mortgaged
property, the mortgagor personally binds himself to repay
the loan. 

To secure the loan the mortgagor transfers to the mortgagee
the right to have sold immovable property if he fails to pay.

2. Mortgage by Conditional Sale.

The elements of this mortgage are as follows-

* The mortgagor must sale the immovable property.

* On the repayment of money due under the mortgage on a
certain date, the sale shall become void or the
mortgagee(buyer) shall re-transfer the property to the
mortgagor(seller).

* On default of payment on that date the sale shall become
absolute.

The mortgagor must sell the immovable property

ostensibly; means that it appears to be sale but in reality it's
not a sale.

181
3. Usufructuary Mortgage.
In this the possession of property is delivered to the
mortgagee and authorises him to receive rents and profits
accruing from the property till the principal amount is
satisfied. Here Mortgagor holds no personal liability in
repaying the loan.

4. English Mortgage.
It is a transaction in which the mortgagor binds himself to
repay the mortgage money on a certain date and transfers
the possession to the mortgagee but subject to that on the
payment of loan the possession will be re-transferred by the
mortgagee to the mortgagor.
* The mortgage property is transferred absolutely to the
mortgagee.

5. Mortgage by deposit of title deeds.

In England a mortgage of this kind is called equitable
mortgage. In this mortgage there is simply a deposit of
document of title and the loan is taken.

* An intention that the deeds shall be the security for the
debt.

* Registration is not necessary in this mortgage.

6. Anamolous Mortgage.
It is a mortgage which is not mentioned anywhere. It means
except above five mortgages mentioned above, all the
mortgages are anamolous. This method is not mentioned
explicitly but is in practice in India.

182
 
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DIFFERENCE BETWEEN VOID AND VOIDABLE

MARRIAGES

VOID MARRIAGES
(Given under Section 11 of Hindu Marriage Act, 1955)

A void marriage is no marriage. It is a marriage which

does not exist from its beginning.
It is termed as marriage because two person undergo the
ceremonies of marriage but due to some incompetency it is
void.
For Example-

If a brother and sister perform all the ceremonies of

184
marriage and start living as husband and wife, they will
not become husband and wife in the eyes of law even
though they have performed the ceremonies of marriage.

GROUNDS OF VOID MARRIAGE

1. Bigamy (it means either party has a spouse living at the
time of marriage)

2. When the parties are sapinda to each other (refer Section

3(f) of Hindu Marriage Act, 1955).

3. When the parties are within the prohibited degree of

relationship (refer Section 3(g) of Hindu Marriage Act,
1955)

Other two cases in which marriage is void.

1. If proper ceremonies of marriage have not been
performed.

2. If a marriage has been performed in violation of the

requirement of Section 15 of Hindu Marriage Act. (Section
15. Divorced persons when may marry again.)
 

185
 VOIDABLE MARRIAGES
(Given under Section 12 of Hindu Marriage Act, 1955)

A voidable marriage is perfectly valid marriage so long it

is not avoided. It can be avoided only on the petition of one
of the parties.
If one of the parties dies before the marriage is annulled,
then no one can challenge the marriage. The marriage will
remain valid forever.

GROUNDS OF VOIDABLE MARRIAGE

1. Marriage not consummated due to impotency of
respondent.

2. Respondent is suffering from mental disorder as to be

unfit for marriage and procreation of children.

3. Consent of the petitioner has been taken by fraud or

force.

4. That the respondent was pregnant by some other

person other than the petitioner.
 
Note: The ground is pre marriage pregnancy of the wife
and not her unchastity. (relating to or engaging in sexual
activity, especially of an illicit or extramarital nature)

Note: The children born out of void and voidable marriages

are legitimate and in no case status of child can be
questioned. (Section 16 of Hindu Marriage Act)

186
“Sapinda Relationship” with reference to any person
extends as far as the third generation (inclusive) in the line
of assent through the mother, and the fifth (inclusive) in the
line of assent through the father, the line being traced
upward in each case from the person concerned, who is to
be counted as the first generation.
 

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WAKF MEANING
↓

Tying up / detention

188
The one who makes Waqf - Wakif

Deed is Wakf-nama.

Wakf literally means tying up or detention.


According to accepted view it is the detention of the

property in the ownership of the God. Quran is silent
regarding Wakf but Quran says something about charity. In
simple words when a person ties up his property to the God
and remains the usufruct for the benefit of public. It may be
religious or charitable.

Essentials of Wakf

1. There must be a permanent dedication of a property

(movable or immovable)

2. By a person professing Islam.

3. For any purpose recognised by Islam.

Other elements
1. There must be clear intention on the part of the Wakif to
create the Wakf. [Wakif is a creator of Wakf.]

2. Wakif must declare his intention either orally or in

writing.

3. The Wakf must be perpetual which means there should

not be fixed period.

189
4. The Wakif must be the owner of the property

5. The object of Wakf should not be in conflict with the

Islamic principles.

6. The Wakif must be of Muslim, major and of sound mind.


Wakf by minor is void ab initio. The guardian cannot create
a Wakf on behalf of minor.

7. Wakf should be by a person who is professing Islam.

Exceptionally Wakf by a non-Muslim is recognised under
certain conditions. It means a Wakf may be created by a
person belonging to any religion, but in such case the object
of Wakf must not be opposed to the creed (faith) of the
Wakif. It means a Muslim cannot create a Wakf for the
construction of Hindu temple nor can Hindu create a Wakf
for the construction of mosque but where the objects are
secular in nature such as college, hospital etc then whether
the Wakif is a Hindu or Muslim or Christian, the Wakf
would be valid.

8. Wakf must not be contingent or conditional.

Legal effects of Wakf

1. Non-transferable
2. Irrevocable
3. Perpetual

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 Modes of creation of Wakf
1. Intervivos
2. By will (only one third)
3. By immemorial use
4. On death bed - Wakif can create only one third.
Note: Generally a Wakf is irrevocable but if the Wakf is
created by will then it may be revoked before the death of
the testator.

Types of Wakf

1. Public Wakf → Waqf-ull-Allah (where the beneficiaries

are public at large)
2. Private Wakf → Waqf-ull-Aulad (where the
beneficiaries are the family member, relative, friends of
Wakf)
 
MUTAWALLI
(care taker of Waqf property) (manager of Waqf property)

Wakif himself can also be Mutawalli.

Who may appoint Mutawalli?



1. Wakif himself
2. Executor
3. The Mutawalli appoints subsequent Mutawalli.
4. Court
5. Waqf Board

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Who may be Mutawalli?

A trustworthy person, and the person must be Muslim,

major, male and of sound mind.
A female or a non-Muslim may also be Mutawalli in a Wakf
where the religious duties are not involved.
In simple words a non-Muslim or female may be appointed
the Mutawalli for a charitable or secular Wakf.

Minor as a Mutawalli

As a general rule a minor cannot be appointed as a

Mutawalli.
Syed Hasan v Mir Hasan

Court held that the minor Mutawalli is void. But where the
office of Mutawalli is hereditary and the person entitled to
succeed the office is minor then minor maybe a movie
Mutawalli but court will appoint another person for taking
care of the property till the age of 18 years.

Removal of Mutawalli

Once Mutawalli lawfully appointed cannot be removed

except by the court.

Doctrine of Cypres

When the fulfilment of object of Wakf becomes impossible

then Mutawalli may act for fulfilling any object which is
similar to the object mentioned in Wakf.

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Garib Das v M.A Hamid AIR 1970

Supreme Court held that a Wakf is completed by only a
declaration by the Wakif. It may be oral or in writing, no
formalities are needed for creation of Wakf.
 

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7 WAYS OF DISSOLUTION OF A PARTNERSHIP FIRM

Chapter VI of Partnership Act, 1932

Section 39 - Dissolution of a Firm

The dissolution of partnership relation between all partners
is dissolution of the firm. It is the ending of partnership
relation among partners.

Section 40 - Dissolution by Agreement

Partners can at any time with everyone's consent may make
an agreement in order to dissolve the firm. This applies to
all cases whether the firm is for a fixed period or at will.

194
The provision for dissolution can be in partnership deed
also or in a separate agreement.

Section 41 - Compulsory Dissolution

Compulsory dissolution is not subjected to any contract or
do not depend upon the consent of the partners.
a. Clause (a) omitted by Act 31 of 2016.
b. Illegality of Business - Where the business of the firm
from the very beginning is illegal, then it is void under
section 23 of Indian Contract Act.

This section applies when the business in beginning was

lawful but due to change in law or any subsequent
impossibility, the business became unlawful. In this way the
firm by operation of law gets dissolved.

Section 42 - Dissolution on happening of certain

contingencies.
Subject to contract, firm is dissolved-
1. If constituted for fixed term, then by expiry of the term.
(Section 8)
2. If constituted for one or more adventures, by its
completion thereof.
3. By death of the partner.
4. When partner becomes insolvent.

Section 43 - Dissolution by notice of partnership at will.

Where the partnership is at will, the firm may be dissolved
by any partner giving notice in writing to all other partners.

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The firm will get dissolved from the date of dissolution
mentioned in the notice or if not mentioned then from the
date when communication of notice is completed.

Section 44 - Dissolution by the court.

1. If a partner has become of unsound mind.
Insanity means that partner becomes incapable of
performing duties as a partner. Either insane partner or any
other partner may apply to court for dissolution.

2. Permanent incapacity of a partner.

If a partner has become permanently incapable then any
remaining partner may apply for dissolution. The incapacity
may be due to illness, mental or physical.

3. Partner guilty of misconduct.

When a partner's misconduct is likely to affect the business
of the firm, then any remaining partner of the firm may
apply for dissolution. Basically, the nature of misconduct
should be such which will damage the business prospects of
the firm.

4. Persistent breach of agreement.

If a partner conducts himself in the business which is not
reasonably practicable for other partners to carry on
partnership business with him.

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5. Transfer of interest.
When a partner has transferred to whole of his interest in
the firm to third party, or has allowed his interest to be
charged, for recovery of arrears under land revenue. (under
Order XXI, Rule 49 of Civil Procedure Code)

6. Perpetual Losses.
When the business of the firm is meeting continuous loss.

7. Just and equitable.

It gives the court discretionary power to dissolve the firm.
Where ever there is a mismanagement of the firm, it gives
good ground to court for ordering dissolution.

Section 45 - Liability for acts of partners done after

dissolution.

(Consequences of dissolution)
The first step in the process of dissolution is to give public
notice of it. This is necessary in order to prevent the
partners liability by holding out and by estoppel. If public
notice is not given then the liability of the partners remains
continued.

Note: Notice can be given by any partner.

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DIVORCE IN MUSLIMS

MUSLIM MARRIAGE ACT

Divorce under Muslim law is of two types-
● Extra Judicial Divorce

● Judicial Divorce
 
EXTRA JUDICIAL DIVORCE IN ISLAM
The extra judicial divorce consists of following divisions:
By husband: Talaq, Ila, Zihar
By wife: Talaq-i-tafweez
By mutual consent: Khula, Mubarat
 

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TALAQ IN ISLAM
1. Talaq-e-Ahsan: It consists of a single pronouncement of
divorce. It is irrevocable even after expiration of period of
iddat.

2. Talaq-e-Hasan: When the husband repudiates his wife

during a Tuhr (period of purity) in which he has not had
carnal connection with her and he repeats the repudiation
during the next two Tuhrs which makes the divorce final
and irrevocable.

3. Talaq-ul-Biddat: Three pronouncements are made in a

single breath. It becomes irrevocable as soon as it is
pronounced. It is considered to be the worst form of
divorce.

4. Ila: If a husband after having attained puberty, swears by

god not to have sexual intercourse with his wife for a
period of four months or for any unspecified period, he is
said to make Ila.

5. Zihar: If husband compares his wife to his mother or to

a female within prohibited degrees of relationship, the wife
has right to avoid him until he performs punishment for his
wrong done/sin.

6. Khula: Khula is separation by putting an end to the

matrimonial bonds and rights. It is that right in which the
wife agrees to give a certain amount of consideration to
the husband for her release from the marriage ties.

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7. Mubarat: Mubarat is the dissolution of marriage by
mutual agreement. The offer may be made by any party,
either husband or wife.

8. Talaq-e-Tafweez: A husband may delegate his power of

talaq to his wife. An agreement is made before or after
marriage providing that the wife is at liberty to take
divorce from his husband provided that such power is not
absolute and unconditional and that the conditions are
reasonable and not opposed to law.
 

JUDICIAL DICORCE IN ISLAM

The judicial divorce consists of-


Dissolution of Muslim Marriage act, 1939.
● Lian

● Fask

Lian: When the husband put charges of adultery on the

wife and later the charges are proved false, the wife is
entitled to sue and ask for a divorce.

Fask: Muslim law allows a lady to approach a qazi for

dissolving a marriage under following conditions:

1. If the marriage is irregular.

2. If the marriage was within prohibited degrees etc.
 
Under section 2 of this Act, a Muslim woman can seek
divorce on the following grounds-

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1. Where the husband is not heard of alive for a period of
four years.

2. The husband has failed to provide maintenance to the

wife for at least two years.

3. The husband has been under imprisonment for seven or

more years.

4. The husband is unable to meet the marital obligations.

5. If the girl is married before fifteen and decides to end

the relationship before she turns eighteen.
 

Read other Marriage notes and laws.

Read about Void and Voidable Marriages.
Read about Muta Marriage - A temporary marriage mainly
for sexual enjoyment.
Read other Law Notes.

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WHAT IS RETRACTED CONFESSION?

A retracted confession is a statement made by an

accused person before the trial begins, by which he
admits to have committed the offence, but which he
repudiates (reject, disown, abandon, renounce, refuse to
accept or be associated with) at the trial.

Evidentiary value of retracted confession

It is unsafe to base the conviction on a retracted confession
unless it is corroborated by trustworthy evidence.
Bharat vs State of UP, 1971

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Justice Hidayatullah observed that a court may take into
account the retracted confession, but it must look for the
reasons for the making of the confession as well as for its
retraction and must weigh both of them to determine
whether the retraction affects the voluntary nature of the
confession or not.

Manjit Singh vs CBI (2011) SCC 578

Considering the question whether retracted confessions of
the co-accused could be relied upon to convict the accused;

Court held that the retracted statements can be used against
the accused as well as co-accused provides that such
statements should be truthful and voluntary when made. In
the said case two accused persons made confessional
statements and subsequently, they retracted from their
statements.

The court observed that-

"A confessional statement given under section 15 of
TADA (Terrorist and Disruptive Activities Act) shall not
be discarded merely for the reason that the same has
been retracted"

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When communication is said to be completed?

Section 4 of Contract Act - THE COMMUNICATION
WHEN COMPLETE.

1. The communication of acceptance is complete as against

the proposer, when it is put in the course of transmission to
him so at to be out of the power of the acceptor.

2. Against the acceptor - When it comes to the knowledge

of proposer.
For example-

‘A’ proposes by letter, to sell a house to ‘B’ at a certain
price.


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B accepts A’s proposal by letter sent by post.

The communication of acceptance is complete as against
‘A’, when the letter is posted, as against ‘B’ when the letter
is received by ‘A’.

Thus when a letter of acceptance is posted, proposer

becomes bound, but acceptor will be bound only when the
letter is received by the proposer.


Complete contract arises on date when the letter of

acceptance is posted and contract is deemed to have been
made at the place where the letter of acceptance is posted.

Bhagwandas Goverdhandas Kedia v. Girdharilal

Parshottamdas AIR 1966
In this case, Hon’ble Supreme Court made clear the
confusion about the completion of contract by telephone or
telex.

Majority of judges held that the communication on
telephone or telex is like an exception of section 4 and
held where a contract is made by telephone, the contract is
complete only when acceptance is received by offer.

The contract is made at a place where acceptance is

received, it means at the place of offerer.

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OPINION OF THIRD PERSON WHEN RELEVANT?

(Section 45-51)

Most of the times it is the general rule that the opinions of

third person or party is irrelevant. However there are some
instances/exceptions when the opinion of third person is
taken into consideration.

206
When court will take help of expert opinion? (section
45)

When the court has to form an opinion on the point of-


1. Foreign Law

2. Science

3. Art

4. Identity of Handwriting

5. Finger Impressions

Then the opinions upon that point of persons specially

skilled in Foreign Law, Science, Art, Identity of
Handwriting, Finger Impressions are relevant facts.

Who is an expert?
Expert is one who is specially skilled in a matter. But it is
no where essential that expert must hold any degree or
particular attainment.

Abdul Rehman v State of Mysore


Whether the professional goldsmith is an expert or not? The
court said particular attainment or degree is not mandatorily
required. His qualification of being skilled is enough for
opinion on any matter.

Aziz Bano v Mohd Ibrahim Hussain


Court said that though Shia Law on marriage is of foreign
origin cannot be said to be foreign law because it is the law
of the land and in force in India.

207
 When is the opinion of third party relevant?

Section 45A: Opinion of Examiner of electronic

evidence
When in a proceeding the court has to form an opinion on
any subject matter relating to any information transmitted
or stored in any computer resource or any other electronic
or digital form, the opinion of the examiner of electronic
evidence referred to in Section 79A of IT Act, 2000 is a
relevant fact.

Section 46: Facts bearing upon opinions of experts

When the opinion of an expert is relevant, then any fact
which either support or contradict his opinion also becomes
relevant. It is always open to parties to produce additional
evidence like outstanding books, experiments etc.

For Example-

Where madness of a person has been proved by a
psychiatrist, then party may give additional evidence that
madness is often a hereditary character of the person.

Section 47: When the court has to form an opinion as to

the person by whom any document was written or
signed then whose opinion is relevant.
Opinion of any person acquainted with the handwriting is
relevant. It includes a person-

1. Who has seen that person write.

208
2. Who has secured (received) documents written by that
person (in answer to documents written by himself or under
his authority and addressed to that person.)

3. Who has in the ordinary course of business received

documents written by that person or such documents are
habitually received by him (to whom the letter is habitually
submitted)

4. Even court can compare handwriting under section 73.

5. It includes opinion of expert under section 45.

Fakhruddin v State of MP 1967 SC


Supreme Court held that handwriting may be proved by the
evidence of a witness in whose presence the writing was
done and this would be direct evidence, and if it is available
then any other kind of evidence is rendered unnecessary.
Note: Under section 73 court will compare handwriting to
be proved with handwriting already admitted or proved.

Section 47A: Opinion as to electronic signature when

relevant
Regarding electronic signature, opinion of certifying
authority which has issued the electronic signature
certificate is a relevant fact.

209
Section 48: Opinion as to existence of right or custom,
when relevant
In the case of existence of any general custom or right the
opinion of person who would have known if it existed are
relevant.

Illustration-

The right of the villagers of a particular village to use the
water of a particular well are a general right within this
section. The opinion of villagers will be relevant because
person who would be likely to know of its existence are
relevant.

Section 49: Opinion as to usage, tenets etc when relevant

When the court has to form opinion as to-

1. Usages and tenets of any body of men or family, or

2. Constitution and Government of any religious or
charitable foundation.

3. Opinion of person having special means of knowledge.

Section 50: Opinion on relationship, when relevant

When the court has to form an opinion as to relationship of
one to another, the opinion, expressed by conduct as to
existence of relationship either by-

a. A family member

b. Other person

Having special means of knowledge on the subject is a

relevant fact. But such opinion shall not be sufficient to
prove marriage in proceeding under-


210
a. Indian Divorce Act, 1869

b. In prosecution under section 494, 495, 497, 498 of IPC.

Section 51: Grounds of opinion when relevant

The grounds or basis on which an expert makes his opinion
are also relevant.

EVIDENTIARY VALUE OF EXPERT EVIDENCE

Supreme Court in Mobarik Ali v State of Bombay said that
if a witness were permitted to express its opinion and if it is
relied then it may amount to delegation of judicial function
and that is why the court should exclude it generally.
Further more statements of opinion are not merely
superfluous but they may also mislead the court. Judge may
rely in opinion too much and then there may be miscarriage
of justice. The task if inference is on the court and not on
the witness but the above general rule is subject to certain
exceptions and reason behind exception is that in many
cases of technical nature the opinion of expert does help the
court to arrive at a satisfactory conclusion.

Furthermore as it is opinion of skilled person so it does

have value. In many cases court does not possess that
professional or specialised knowledge.
Though this opinion of expert is necessary but it has certain
issues-
1. There is danger of error or deliberate falsehood.

211
2. After all it is an opinion, and human judgements are
fallible. (Fallible- error prone, open to error)

3. The expert witness however impartial may be likely to be

unconsciously prejudiced. And these factors seriously
affects its probative force. (Probative- having the quality or
function of proving or demonstrating something; affording
proof or evidence: Sentence Example- It places the
probative burden on the defendant.)

So the reliability of such evidence has to be tested in such

way in which any other piece of evidence is tested.
In this context it is the duty of court to call upon expert to
explain the reason for its opinion and then to form opinion
as to whether or not expert opinion is satisfactory. The court
should not surrender its opinion to that of expert.

Expert opinion is an opinion on the basis that opinion

court has to form its own opinion but at the same time
court has to be cautious as it is only an opinion and not
mandatory for court to obey the same.

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How Much of Information Received from

Accused May be Proved
(Section 27 of Indian Evidence Act)


What is the meaning of fact discovered in regard to Section 27
of Indian Evidence Act, 1872?
Section 27 lays that if the confession of the accused is supported
by the discovery of the fact then it may be presumed to be true and
not to be excluded.

213
Section 27 is based on doctrine of confirmation by subsequent
events.
The fact discovered includes:

1. The place from which the object is produced.

2. The knowledge of the accused as to this and information given
must relate distinctly to fact discovered.

Pulukuri Kottaya vs Emperor AIR 1947

Information supplied by the person in the custody - 'I will

produce a knife concealed in the roof of my house’ does not
lead to discovery of that knife. It leads to the discovery of fact that
a knife is concealed in the house of the informant to his
knowledge and if knife is proved to have been used in the
commission of the offence, the fact discovered is relevant.
The object of the section is to admit evidence which is relevant to
the matter under inquiry, that is guilt of the accused, and not to
admit the evidence which is irrelevant.

Anter Singh v State of Rajasthan AIR 2004

1. It was held that the fact of which evidence is to be given must

be relevant to the issue. The relevancy of the fact discovered must
be established according to prescriptions relating to relevancy.

2. The fact must have been discovered.

3. The discovery must have been the consequence of information

received.

214
4. The accused person must be in the custody of police officer.



Note: Only that information which relates distinctly or strictly to
the fact discovered can be proved.

Mehboob Ali & Anr vs State of Rajasthan (2015) SC

Supreme Court held that for the application of section 27 of the

Indian Evidence Act, admissible portion of confessional statement
has to be found as to a fact which were the immediate cause of the
discovery; only that would be part of legal evidence and not the
rest.
A statement which was not in the knowledge of police before the
disclosure statement of accused was recorded admissible.

Kashmira Singh vs State of Madhya Pradesh AIR 1952

In this case four persons were charged of murder and at trial one
of them confessed. The court said that the proper way to approach
is first marshal (assemble, gather, collect) the evidence against the
accused excluding the confession altogether and consider whether
conviction can be safely based on it or not.
If it is capable of belief, independently of the confession, then of
course it is not necessary to call the confession in aid.




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What is the evidentiary value of accomplice evidence?

R.K Dalmia vs Delhi Administration, 1962

An accomplice was defined as someone who voluntarily co-

operates with, and helps others in commission of the crime. He
is said to be 'particeps criminis' - a participator in the actual
crime.

The question is to what extent the testimony of accomplice

can be relied upon.
Two provisions in the Act touch this problem.

216
Section 133 categorically declares that an accomplice is a
competent witness and the court may convict on the basis of
such evidence and the conviction will not be illegal simply
because it proceeds upon the uncorroborated testimony of an
accomplice.

The other provision dealing with this matter is in illustration

(b) of Section 114 which says that the court may presume that
an accomplice is unworthy of credit unless corroborated in
material particulars.

The reasons why corroboration has been considered

necessary are that-
1. He has been criminal himself and therefore his testimony
should not carry the same respect as that of a law abiding
citizen.

2. He has been faithless to his companions and may be

faithless to courts.

The true meaning of corroboration is best explained in the case

of:
R vs Baskerville

It was said that the uncorroborated evidence of an accomplice

is admissible in law, but proper caution is taken while
convicting a person on the basis of such evidence. And if after
proper caution, the court convicts a person, the legality of
such a conviction cannot be questioned merely upon the
ground that accomplice testimony was uncorroborated.

217
As to the nature and extent:
In R vs Stubbs

The evidence if an accomplice must be confirmed not only as

the circumstances of the crime but also as the identity of
prisoner.

Article 20(3) of Constitution of India and 339(1) of

Criminal Procedure Code

Article 20(3) says a person cannot be compelled to be a

witness against himself. But an accomplice accepting pardon
under section 337 of CrPC on his/by his free will is bound to
make a full disclosure and on his failure, may be tried for the
offence of which he was originally charged and his statement
may be used against him.

Lachhi Ram v State of Punjab AIR 1967 SC

The court should find that there is nothing inherently

improbable in the evidence given by the approver and there is
no finding that the approver has given false evidence. The
another test remains is of corroboration, and it is not always
necessary that his evidence receive sufficient corroboration.

Narayan Chetanram Chaudhary v State of Maharashtra

AIR 2000 SC

Court held that the court must look at the broad spectrum of
the approver's version and then find out whether there is other
evidence to corroborate and lend assurance to that version.

218
And court also added that corroboration need not be in the
form of ocular testimony. It may be even in the form of
circumstantial evidence and the corroborative evidence must
be independent and not vague or unreliable.

VICTIM OF RAPE AS ACCOMPLICE

In Karnel Singh vs State of M.P 1995 SC

Court held that victim of rape cannot be put at par with an

accomplice. She is undoubtedly a competent witness under
section 118 of Indian Evidence Act and therefore her evidence
need not be tested with the same amount of suspicion as that of
an accomplice.

The testimony of an accomplice is evidence under section 3 of

Indian Evidence Act and has to be dealt with as such. The
evidence is of a tainted character and is weak, but nevertheless
it is evidence and may be acted upon subject to corroboration
in material particulars.

Sarwan Singh vs State of Punjab AIR 1957

The Supreme Court was of the view that though an accomplice

is undoubtedly a competent witness, the very fact that he has
participated in the commission of the offence introduces a
serious stain in his evidence and courts are naturally reluctant
to act on such tainted evidence unless it is corroborated in
material particulars by other independent witness.

219
However one should not expect that such independent
corroboration should cover the whole of the prosecution or
even all material particulars. On the other hand it would not be
safe to act upon such evidence merely because it is
corroborated in minor particulars.

Because in such a case the corroboration does not afford the

necessary assurance that the main story disclosed by approver
can be reasonably accepted.

The Supreme Court thus said, first and essential condition to

consider is whether accomplice evidence is reliable witness.
Only when the question is satisfied the court will go to the
question of corroboration.

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DIGITAL TRANSFORMATION IN LEGAL SECTOR

The world is going (or has gone) digital. Most of the aspects of
our life now depend on the internet, cloud and computers.

Legal sector is also inculcating these advanced and much
needed reforms/initiatives.
These initiatives are designed to give voice to the voiceless.
1. Pro-bono legal services.

This initiative launches an online application on the

department of justice website to enroll advocates who are

221
interested in providing legal aid. This information then can be
assessed by needy citizens through an interface provided by
the United Nations Development Programme (UNDP) and
creates first digital structure for legal aid in the country.

2. Nyaya Mitra Scheme

It is a justice facilitation mechanism to reduce case pendency

at district level. The scheme will place a special focus on cases
pending over for 10 years, which will be identified through the
National Judicial Data Grid.

3. E-Courts

The e-courts is a pan-India project monitored and funded by

Department of Justice. Its purpose is to make electronic
movements of record, installation of video conferencing
facility, connecting all courts through WAN.

4. Live Streaming of Court Proceedings

The Supreme Court in Swapnil Tripathi vs Supreme Court of

India directed the centre to frame rules for live streaming of
court proceedings.

'It will encourage the principle of open court, public's right
to know and reduce dependence on second-hand views' said
J.D.Y Chandrachud.

222
5. E-Courts Mission

With an aim to fast track the disposal of pending cases, the

government is moving towards e-courts facilitation. So far 342
jails and 488 district courts have got the facilities. These courts
will get local area network, computer hardware and standard
application software. Every court is available on the national
grid.

6. National Judicial Data Grid

It was launched for subordinate courts. It is with respect to

making all the orders from a case available on court website.
The Supreme Court recognised that 'Access to justice' is a
fundamental right.

7. E-filing, e-pay and NSTEP (National Service and

Tracking of electronic processes)

These projects were created under guidance of Chief Justice of

India, Deepak Misra, 2018.
The e-filing is made available at efiling.ecourts.gov.in where
online registration of lawyers and litigants can be done.
It will ease pressure on filing counters. Data entry will become
more accurate.
E-pay portal is to pay court fees online. It is safe, secure and
easy.

223
NSTEP is another innovative part of e-courts. It is a
collaboration between case information software, web portal
and mobile application. It is a system for transmission of
process from one location to another regarding delays in
process serving particularly the processes which are beyond
jurisdiction.

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LEGAL AFFAIRS : IMPORTANT CASES



1. Hadia Marriage Case

Shafin Jahan vs Ashokan


Article 19 and Article 21 of the Indian Constitution was
challenged. It was held that, a person is free to profess any
faith or change his faith.
It was also said that Right to choose life partner is a
Constitutional Right.

225
2. National Anthem Case

Shyam Narayan Chouksey vs UOI, 2018

National Anthem is not mandatory but discretionary but people

are bound to show respect.

It is the duty of citizens under Article 51A.

3. Honor killing and Khap Panchayat


Shakti Vahini vs UOI, 2018


Right to choose life partner is a constitutional right.

4. Common Cause

Article 21

Registered Society vs UOI
Right to die included in Article 21 (Passive Euthanasia)


Related Law Note to Article 21 (Must Read)

5. Section 377 and Decriminalisation of Homosexuality


Navtej Singh Johar vs UOI

Article 15 and 19 in Concern, LGBT

Decriminalisation of Section 377 IPC

1. Supreme Court in Navtej Singh Johar vs UOI decriminalised

Section 377 of Indian Penal Code.

226
2. Status of gender equality given.

3. Equal opportunity in matters of employment.

4. Sexual orientation is intrinsic part of person's life and

liberty.

● This section was put into force in 1861, IPC.

● Naaz foundation vs Government of Delhi - Delhi High Court

held that section 377 was violation of Fundamental Rights to
decriminalise it.

● Supreme Court overruled the High Court ruling in 2013

because it is a concern of minuscule fraction of the country's
population.

But in 2014, transgender introduced as third gender.

● In 2017, Case of Putlaswamy came which made Right to

Privacy a fundamental right and said that sexual orientation is
an essential component of identity.

● In 2018 Supreme Court scrapped the controversial Section

377 (after 158 years of colonial law in Navtej Singh Johar vs
UOI)

● According to Supreme Court, Section 377 is irrational and

arbitrary.

● It is unconstitutional and violates Right to Privacy.

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● Criminalisation private sexual conduct between adults of
same sex abridged their freedom of choice and expression
under Article 19.

● LGBT Community also have Right to Equality under Article

14 and they are not to be discriminated on the basis of their
sexual orientation.
As far as Neurological and Biological factors are concerned -
It is not against the order of nature.
● Homosexuality is documented in 1500 species and is not
unique to human.

● Homosexuality is neither mental illness nor moral depravity.

● The Mental Healthcare Act, 2017 already cleared the stigma

of mental illness attached to homosexuality.
According to International Law it is strictly prohibited to
discriminate on grounds of sexual orientation or gender
identity. (Article 6 of UN Charter)

● The Constitution is not for just majority; the Fundamental

Rights are guaranteed to every person, and few only to citizen
and these rights do not require meritorial (meritorious)
sanctions.

The destruction of individual identity would tantamount
(equivalent to) to the crushing of dignity. Attitude and
mentalities have to change to set distinct identities of
individuals who must be respected for who they are and not
compelled to become who they are not.
"I am what I am, so take me as I am"

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6. Adultery

Yusuf Aziz vs State of Bombay, 1954

Smt. Sowmithri Vishnu vs Union Of India, 1985

Section 497 was protecting the sanctity of marriage.

Joseph Srine vs UOI, 2018 (latest judgement)


● Section 497 held unconstitutional.

● Any law that attack individual dignity or status of equality
will be unconstitutional.

● Petition filed by NRI from Kerala, challenging Article 14, 15

and 21. Women cannot be treated as chattel. - J.Nariman

● Ability to make sexual choice us essential to human liberty

(Article 21) - J. Chandrachud

● The beauty of the Constitution is that it includes I, ME and

YOU.

Outcome of this Judgement.

1. Women now no more an abettor in adultery.

2. Adultery still a ground for divorce under section 13 of

Hindu Marriage Act, 1995.

3. ● Adultery can not and should not be a crime. It can be a

ground for civil offence, a ground for divorce where section
497 made a husband the licensor of his wife's sexual choice.
● Husband is not the master of wife.


A must read short article about Adultery.

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7. Sabarimala Verdict

Indian Young Lawyers Association vs State of Kerala

● Rule 3(b) says no entry for women in the age group 10 to 50

and banned for entry for women is based on patriarchal belief.


● Gender discrimination.
In 1990, S Mahindran filed a PIL in Kerala High Court seeking
ban on women entry to the temple. In 1991 Kerala High Court
uphold the age on restriction on women. In 2006, India Young
Lawyers Association through PIL challenged Sabrimala temple
customs.


● In 2018 five judges bench by 4:1 majority rules that
excluding women are discriminatory. Now women of all ages
can enter Sabarimala temple.


● Temple ban on women, violation of Article 14, Article 15,
Article 17, Article 25.

8. Reservation in Promotion

Indira Sawhney vs UOI

● 77th Constitutional Amendment added Article 16 (4A)

reservation in promotion.

● M. Nagaraj vs UOI 2006 challenged 77th Constitutional

Amendment and held reservation in promotion valid.

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While upholding the constitutional validity of Article 16 (4A)
Supreme Court held that any such reservation policy in order
to be constitutionally valid shall satisfy the following three
constitutional requirements:


1. The SC and ST community should be socially and

educationally backward.


2. The SC and ST communities are not adequately represented

in Public employment.


3. Such a reservation policy shall not affect the overall

efficiency in the administration.

● Jarnail Singh vs Lachhmi Narain Gupta, 2018

Reservation is valid but no need to collect quantifiable data of
backwardness to give promotion for SC and ST.

9. Live streaming of Supreme Court proceedings for larger

public interest and transparency in judicial proceedings.

Supreme Court gave direction to Advocate General of India

(AGI) to make rule according to Article 145.

Live Coverage: Swapnil Tripathi vs Supreme Court of India

The Supreme Court has pushed for greater transparency in

judicial system by setting the stage for live streaming of court
cases of constitutional importance.

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The court directed Central Government to frame the rules. It
will encourage the principle of open court. - Justice D.Y
Chandrachud


To know about public rights and reduce dependence on second

hand views.
Just like Parliament proceedings, this broadcast will ensure
that the proceedings are under public eye; hence fair and just.
It also increase accountability.

10. Ayodhya Dispute


M. Siddiq vs Mahant Suresh Das


Court mediated - J Khalifullah, Adv Sri Ram Panchu, Sri Sri
Ravishankar


Case still in progress and waiting for final verdict...

11. Aadhar Verdict

Aadhar Act came into force in 2016 as money bill.

In 2018 it was challenged by 4:1 bench. Supreme Court has

declared the Centre flagship Aadhar scheme constitutionally
valid but with conditions and pass triple test-

1. Existence of a Law (Statute Aadhar Act, 2016)

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2. A legitimate state interest (Ensuring Social Benefit
Schemes* to reach the deserving and poor. *Jan Dhan Yojana)

3. (Proportion Test) : Balance between benefit of Aadhar and

potential threats it carries to the fundamental right to privacy.

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