A Bench of Justice G S Singhvi and Justice Ashok Kumar Ganguly requested the Hon’ble Chief Justice to refer the following, amongst other, questions to be decided by a larger Bench.
The questions are:
1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?
2. Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?
3. Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?
The Bench said “We are of the opinion that a broad and expansive interpretation should be given to the term ‘wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual”.
The Supreme Court Wednesday reserved its verdict on the question whether a woman in a live-in relationship or under the mistaken belief of being the wife of an already married man was entitled to maintenance. The court will also interpret the provision of the Protection of Woman from Domestic Violence law which talks about live-in relationship in the “nature of marriage”.
Senior counsel and amicus curiae Jayant Bhushan told the court that at the time of passing the domestic violence law, parliament was told that this provision of the law would not extend an aggrieved woman the right to the property of her live in partner. However, the court said that the act was silent on the aspect of maintenance.
“It would be against the public policy and would demolish the institution of marriage if we award maintenance in the case of assumed marriage when the first marriage is surviving,” an apex court bench of Justice Markandey Katju and Justice T.S. Thakur said. The court reserved its order in a case where D. Velusamy has challenged an order of the Madras High Court directing him to pay maintenance of Rs.500 per month to his “second wife” D. Patchaiammal. Velusamy allegedly married Patchaiammal when his first marriage was still intact. The court said that “If your relationship is just for sex then it is not a marriage. It (marriage) is love and affection, mutual respect, regard, sacrifice and give and take,” Justice Katju said.
The court also examined the question that if the “other” woman was granted maintenance then she would also stake claim to her share in the mans family pension in a possible eventuality. Justice Thakur posed the question “if there was need for proceedings of the court to declare second marriage void or it is presumed to be void (in the wake of first marriage surviving)”.Bhushan told the court that such live-in relationship could be covered by the common law that was sill prevalent in 11 states of America and in most of Canada. The common law is not recognized in England.
Amicus curiae said that live-in relationship under the common law had no sanction of authorities but the couple present themselves as spouse to the world. This is a quasi judicial marriage, he told the court. Bhushan also told the court that the law commission in Britain has recommended statutory provisions recognizing co-habitation that extends to three to five years. He said that this recommendation has yet to be acted upon.
The Babri Masjid was unauthorisedly demolished and the culprits must be brought to book under the rule of law. But in law, a temple and a mosque cannot be considered on a par as far as sacredness is concerned. This is the fundamental truth constantly being evaded on the Ayodhya issue.
T.R. Andhyarujina is a highly respected and accomplished lawyer who is very skilled in court craft. His major point in his Op-Ed [“A Verdict that legitimises the Masjid demolition,” The Hindu, Oct.5, 2010] is that the 8,700-plus pages judgment of the Lucknow Bench of the Allahabad High Court on the Ayodhya dispute implicitly condones the 1992 demolition of the Babri Mosque structure because the Court did not take judicial notice and draw adverse inference [in fact no reference] against the directly or de facto affiliated parties (in the litigation before the Bench) in that destruction.
I do not dismiss this point because the structure was indeed unauthorisedly demolished and therefore the culprits and the planners of this demolition, whoever they are, have to be brought to book to uphold the rule of law. For this purpose, there is an ongoing criminal case in a special CBI-designated Sessions Court.
In this context, the question is whether every court will have to take judicial notice of this alleged illegal violent event even after the Supreme Court of India has taken such notice. Mr. Andhyarujina himself quotes the Supreme Court judgment [reported in (1994) 6SCC376] in which the court, while absolving the Hindus as a community of the blame, nevertheless held that “Hindus must bear the Cross for it.” This was an extraordinary judicial observation and has profound implications for all communities whenever religious premises are destroyed.
The fact nevertheless remains that throughout the last several centuries, Hindus have deeply held as sacred as Ram’s birthplace that exact spot where the Babri Masjid once stood. This is recorded in many official and judicial proceedings.
In 1885, for example, Mahant Raghubar Das, in a Suit No. 61/280 of 1885 filed in the Court of the Faizabad Sub Judge against the Secretary of State for India (who was based in London), prayed for permission to build a temple inside the perimeter of the mosque. His suit was dismissed on March 18, 1886, but in his Order the Sub-Judge, an Englishman, stated: “It is most unfortunate that a Masjid should have been built on land specially held sacred by the Hindus. But as the event occurred 358 years ago, it is too late now to remedy the grievance.” Since the British as policy never sought to disturb the communal and social status quo in India as evidenced, for example, on the ‘Sati question,’ the judge took the easy way out and dismissed the suit.
Temple did exist
It is now well established by GPRS-directed excavations, done under the Allahabad High Court monitoring and verification in 2002-03, that a large temple did exist below where that Babri Masjid structure once stood. Inscriptions found during excavations describe it as a temple of Vishnu Hari who had killed the demon king Dasanan [Ravana]. The Archaeological Survey of India (ASI) confirmed these findings on investigations that were directed by the High Court.
A fundamental question arises: Can a temple and a masjid be considered on a par as far as sacredness is concerned? Relying on two important apex judgments that hold the field today, the answer is: No. A masjid is not an essential part of Islam religion, according to a majority judgment of a Constitution Bench of India’s Supreme Court (op.cit. 1994), whereas according to the House of Lords, U.K. (1991), the temple is always a temple even if in disuse or ruins.
In the famous Ismail Farooqui vs Union of India case [reported in (1994) 6 SCC 376], the Supreme Court of India observed: “It has been contended that a mosque enjoys a particular position in Muslim law and once a mosque is established and prayers are offered in such a mosque, the same remains for all time to come a property of Allah … and any person professing Islamic faith can offer prayer in such a mosque, and even if the structure is demolished, the place remains the same where namaz can be offered “ [para 80].
The Constitution Bench then rejected this contention, stating: “The correct position may be summarised thus. Under Mohammedan law applicable in India, title to a mosque can be lost by adverse possession. A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) can be offered anywhere, even in the open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India”(para 82).
Thus what was wrong with the demolition of the Babri Masjid on December 6, 1992 was that it was unauthorised by law and hence a criminal offence. Otherwise any government can deprive Muslims of the Babri Masjid, which would be lawful if the government decides to do so in the interest of public order, public health and morality (Article 25 of the Constitution). This is the position in Islamic law as well since in Saudi Arabia the authorities demolish mosques to lay roads. Even the mosque where Prophet Mohammed used to pray was demolished.
Nataraja statue case
A temple however is not in the same category as a mosque in law. When I was Union Law and Justice Minister, this question of the status of a temple – even if in ruins or without worship – came up before me in November 1990 in a case of a smuggled-out bronze Nataraja statue that was up for sale in London. The Government of India under Prime Minister Rajiv Gandhi had decided to file a case in the London trial court in 1986 for recovery. The Nataraja statue had by then been traced to a temple in ruins in Pathur, Thanjavur district. A farmer named Ramamoorthi had unearthed it in 1976 while digging mud with a spade near his hut.
When the news spread, touts of an antique dealer reached Ramamoorthi, paid a small sum, and smuggled it out to London, where in 1982 it was sold to a private company. In turn, the buyer sent it to the British Museum for appraisal and possible purchase. By then the Government of India was on to it and asked the British government to take action. The Nataraja idol was seized by the London Metropolitan Police, the company sued the police in court for recovery, but lost the case. An appeal was filed in the Queens Bench, which was dismissed on April 17, 1989. The buyer company went to the House of Lords.
On February 13, 1991, when I was Union Law Minister, the landmark judgment dismissing the buyer’s final appeal [see (1991) 4 All ER 638] was delivered. The Bench consisting of Justices Purchas, Nourse, and Leggatt concluded: “We therefore hold that the temple is acceptable as party to these proceedings and that it is as such entitled to sue for the recovery of the Nataraja” [page 648 para g]. Thus a disused temple in ruins became a party, and we as Siva bhaktas as de facto trustees thus recovered the Nataraja idol.
No such ruling anywhere in any court exists for a mosque for the simple reason that a mosque in Islam is just a facilitation centre for reading namaz, and has no essentiality for Islam as a religion.
It can therefore be demolished and/or shifted in India under the Constitution as any building can — but of course authorisedly for a public purpose such as public health, public order or morality. The Union Government is committed by virtue of its affidavit filed in the Supreme Court in 1994 to do so if it is found that a temple structure exists below the mosque site. It must hence perform now and deliver on its commitment on oath sworn in the Supreme Court.
This is the fundamental truth in the Ayodhya dispute that is being constantly evaded by those criticising the Allahabad High Court Judgment.
( The writer is a former Union Law Minister and the Convenor of the Legal and Parliamentary Cells of the Hindu Dharma Acharya Sabha.)
NEW DELHI: Is a person belonging to a Scheduled Caste/Scheduled Tribe in a State entitled or not to benefits or concessions allowed to SC/ST candidates in employment in another State? The Supreme Court on Thursday referred this question to a larger Bench.A Bench of Justices B. Sudershan Reddy and S.S. Nijjar, in its order, said: “A very important question of law as to the interpretation of Articles 16(4), 341 and 342 arises for consideration in this appeal: whether the Presidential Order issued under Article 341(1) or 342(1) of the Constitution has any bearing on the State’s action in making provision for reservation of appointments or posts in favour of any backward class of citizens, which, in the opinion of the State, is not adequately represented in the services under the State? The extent and nature of interplay and interaction among Articles 16(4), 341(1) and 342(1) is required to be resolved.”
By referring the matter for determination by a larger Bench, the judges have virtually reopened the issue which was settled by earlier decisions of two Constitution Benches.
In the instant appeal, Uttarakhand was aggrieved at the judgment of the Uttarakhand High Court holding that SC candidates of other States were entitled to the benefits available to the SC in employment in certain posts in the G.B. Pant University of Agriculture and Technology.Though the university appointed outsiders, the State terminated their services on the ground that they were not entitled to the benefits of SC in the State. However, the High Court quashed the termination orders without taking into consideration the ruling by the two Constitution Benches of the Supreme Court.
Initially, a five-judge Constitution Bench in the Marri Chandra Shekar Rao case held that when an SC/ST “migrates from one State to another, there is no inhibition to migrating, but when he migrates, he does not and cannot carry any special rights or privileges attributed to him or granted to him in the original State.”
A subsequent Constitution Bench — in the case of the Action Committee on the Issue of Caste Certificate to SC and ST in Maharashtra — reiterated the earlier decision and said the SC/ST must be specified in relation to a given State. Merely because a caste was considered an SC in one State, it was not necessary that it be considered so in another State also, the Bench said.
Later, a three-judge Bench in the S. Pushpa vs. Sivachanmugavelu case broadly agreed with the two earlier decisions. However, another two-judge Bench did not agree with the three judges’ decision, stating it was made per incuriam (a decision which a subsequent court finds to be a mistake, and therefore not a binding precedent).
Now Justices Reddy and Nijjar said: “In our view, a two-judge Bench of this court could not have held the decision rendered by a three-judge Bench to be obiter and per incuriam. A Bench of lesser coram cannot disagree or dissent from the view of the law taken by a Bench of larger coram. “In case of doubt, all that the Bench of lesser coram can do is to invite the attention of the Chief Justice of India and request that the matter be placed for hearing before a Bench of larger coram than the Bench whose decision has come up for consideration.” However, since important questions of law were raised in this appeal, Justices Reddy and Nijjar referred it to the CJI for constituting a Bench of appropriate strength.