Smt.
Praseeda, teacher of Law of Crimes (IPC)
(CP-05) came in the
first hour and taught the following among others.
1.
Framing
of issues : Balance court fee (BCF) shall be paid within fifteen days of the
date of framing issues. If BCF is not paid and the plaintiff has not applied
for the extension of payment of BCF, the suit shall be dismissed.
2.
After
payment of BCF, the case shall be posted for further steps.
3.
Steps
at this stage are filing the list of documents to be marked and the list of witnesses to be examined etc.
4.
The
person who asserts a statement shall prove his case first. Thus the documents
and witnesses from the plaintiff side shall be produced first.
5.
Examination
of witnesses has three stages namely, Chief Examination, Cross Examination and
Re Examination.
6.
Chief
Examination of a witness shall be done by the advocate of his side, and the Cross
Examination shall be done by the advocate of the opposite party. Instead of
Chief Examination, a Chief Affidavit may be filed.
7.
In
case a Chief Affidavit is filed, the court may ask whether the affidavit is
prepared under directions of the deponent, or whether he has read the affidavit
and agrees to its contents.
8.
In
criminal cases, the Public Prosecutor shall do the Chief Examination of the
witnesses of the complainant’s side. The advocate of the accused then cross
examines such witness.
9.
If
the advocate who cross examines the witness, leads the witness into difficulty,
or mistake, the advocate of the witness’s side may make a re examination of
such witness, with the permission of the court on specific points allowed by
the court.
10.
Chief
Examination and Cross Examination are the rights of parties; but Re Examination
is at the discretion of the Court.
11.
The
Witnesses of the Plaintiff’s side may be numbered as PW1, PW2, PW3 etc.
12.
The
Court may suggest that a party may give up witnesses, if sufficient witnesses
have already deposed on the matter for which the witnesses to be examined are
produced.
13.
The
court after closing the evidence of the witnesses of the plaintiff’s side may
start the examination of witnesses from the defendant’s side.
14.
Indian
Evidence Act provides the rules for the examination of witnesses.
15.
Re
opening of evidence can be admitted only at the discretion of the court. In
such cases the opposite party has the right to file a counter in this regard.
16.
Depositions
of the witnesses are taken down by the presiding officer of the court.
17.
If
the advocate of the witness’s side feels that a question in cross examination
is a leading question or is not proper, he may ask the court to record it as
question and answer.
18.
Hearing
or argument is the next stage.
19.
When
law is applied to the plaint, documents marked and witnesses examined arguments
are formed. Arguments from the plaintiff’ side come first and the arguments of
the defendant’s side come next.
20.
When
the arguments are over, the suit shall be posted for decree and judgment.
21.
Decree
is a formal order or adjudication of the suit.
22.
Judgment
is the explanation of a decree.
23.
Every
decision of the court should be a reasoned decision. This is a basic principle
of Natural Justice.
Then some
students entered the class and informed that a seminar team is organised in
Room no. 9 at 10 O’clock.
24.
When
the judgment is pronounced in open court, a party to the suit may apply for a
certified copy of the decree and judgment.
25.
The
office of the court after preparing the copy calls for production of stamps.
Stamps should be produced within three days, failing which the application for
certified copy gets dismissed. A fresh application for copy shall be submitted
then.
Then some
students of Alternate Dispute Redressal (ADR) came into the class and informed
the following
1.
Three
programs are scheduled to be conducted by ADR.
2.
On
04.12.2015 Friday between 12 noon to 1 pm a Malayalam essay competition shall
be conducted on the topic “ജസ്റ്റീസ് വി. ആർ. കൃഷ്ണ അയ്യർ മനുഷ്യാവകാശങ്ങൾക്കു
നൽകിയ സംഭാവനകൾ.” December
04 is his death anniversary.
3.
On
10.12.2015 a collage exhibition shall be conducted, one collages each from each
class, with 5 feet height and 4 feet width. The topic is “മനുഷ്യാവകാശദിനം”
26.
On
15.12.2015 a quiz competition with a two member team from each class on the
topic “ജസ്റ്റീസ് വി. ആർ. കൃഷ്ണ അയ്യർ മനുഷ്യാവകാശങ്ങൾക്കു നൽകിയ സംഭാവനകൾ.” shall be conducted in the auditorium.
The first
period ended there and some students went to Seminar meeting. On arriving in
room No. 9, it was learnt that Dr. Krishnakumar in charge of the Law Club,
Government Law College, Thrissur has called the second meeting of Law Club. Smt
Preetha, a faculty member also spoke to the students. A temporary secretary and
Joint secretary were nominated and some topics for action were suggested by the
students namely
1.
Uniform
Civil Code
2.
National
Judicial Commission and independence of
Judiciary
3.
Law
in Real life
4.
Need
of simplification of law
5.
Lawmen
and Laymen
Smt. Suma, teacher of Law of
Contracts (CP-01),
came to the class in the second hour and taught the following.
1.
Implied
acceptance is the acceptance which is not expressly communicated, but inferred
through the actions of the person who makes such acceptance.
2.
If
an offer specifies a mode of communication, it should be strictly followed.
3.
If
the mode of communication is not specified, the usual mode of acceptance shall
be followed.
4.
The
acceptance shall be within a within a reasonable time.
5.
Reasonable
time means the time reasonable time required that the circumstances demand.
6.
The
offer shall be accepted while the offer is subsisting.
7.
The
above conditions are the essentials of valid acceptance.
8.
The
offer is complete when the offer is communicated to the offeree.
9.
The
acceptance is complete
1.
In
respect of the offerer when the offeree posts the consent
2.
In
respect of the offeree when the offerer receives the acceptance.
Smt. Premalatha, teacher of Law of
Torts (CP-03) came
to the class in the third hour and taught the following points.
1. The maxim “Respondeat superior” means “Let
the superior or the master answer.”
2. In order to apply the maxim “Respondeat
superior” it has to be proved that the act causing injury done by the servant
of a master. It has also to be proved that the servant committed the wrongful
act during the course of his employment.
3. A servant is a
person who works under the control and direction of the master and has no
freedom in the manner of work done by him.
4. The general
principle is that the master is liable for the wrong committed by the servant
and not liable for the wrong committed by the independent contractor.
5. QUESTION:
Distinguish between servant and independent contractor.
6. An independent contractor
is a person who works for another and he is not under the control of any
master. He is his own master.
7. For example a
car driver of a person who owns the car is his servant. But a taxy driver is
not servant of the travellar.
8. There are
certain exceptions to the non-liability of the master when the work is given to
an independent contractor. They are given below.
1. Strict liability as found in the case law Rylands v Fletcher
2. If a wrongful act is done by the
independent contractor by the direction of the master. When the employer authorizes
an illegal act or subsequently ratifies the same, then the employer cannot
escape from liability by pleading that he is not liable for the wrongful act of
the independent contractor. By authorizing an illegal act the master himself
become part of the unlawful act. Therefore the liability.
3. Liability in case of dangers caused
on or near the highway.
4. In the case of nuisance, if done by independent
contractor in the form of withdrawal of support from the neighbour’s land, the
master is liable.
9. If
a wrongful act is committed by the servant during the course of employment, the
master is liable.
10. For example
during lunch break of one hour, if the servant goes elsewhere to dine, and does
anything wrong there, then the master is not liable. But the direct travel to
and from the place of employment shall be considered as during the course of
employment.
The third hour ended and Smt. Smitha, teacher of Family Law
(CP-04) came in the fourth hour and taught us the following.
1.
The conditions of a valid Hindu marriage are
given below.
1. Neither
party has a spouse living at the time of the marriage
2. Capacity to make consent.
a. not of unsound mind
b. not suffering from mental disorder
of such a kind or to such an extent as to be unfit for marriage and the
procreation of children
c. not subject to recurrent attacks of
insanity
3. Male must have attained the age of
21 and female 18.
4. the parties are not within the
degrees of prohibited relationship unless the custom or usage governing each of
them permits of a marriage between the two
5. the parties are not sapindas of each
other, unless the custom or usage governing each of them permits of a marriage
between the two
2.
Unsound mind are of two kinds namely 1. Idiocy and
2. Lunacy.
3.
Idiocy is a permanent state of unsoundness
4.
Within lunacy there shall be intervals of sound
mind too.
5.
Recurring attacks of epilepsy is considered to
be of unsound mind.
6.
Section 13 of Hindu Marriage Act gives grounds
for divorce.
Section13 in The Hindu Marriage Act, 1955 runs as follows.
13
Divorce. —
(1)
Any marriage solemnised, whether before or after the commencement of this Act,
may, on a petition presented by either the husband or the wife, be dissolved by
a decree of divorce on the ground that the other party—
[(i)
has, after the solemnisation of the marriage, had voluntary sexual intercourse
with any person other than his or her spouse; or]
[(ia)
has, after the solemnisation of the marriage, treated the petitioner with
cruelty; or]
[(ib)
has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or]
(ii)
has ceased to be a Hindu by conversion to another religion; or
[(iii)
has been incurably of unsound mind, or has been suffering continuously or
intermittently from mental disorder of such a kind and to such an extent that
the petitioner cannot reasonably be expected to live with the respondent.
Explanation
.—In this clause,—
(a)
the expression “mental disorder”
means mental illness, arrested or incomplete development of mind, psychopathic
disorder or any other disorder or disability of mind and includes
schizophrenia;
(b)
the expression “psychopathic disorder”
means a persistent disorder or disability of mind (whether or not including
sub-normality of intelligence) which results in abnormally aggressive or
seriously irresponsible conduct on the part of the other party, and whether or
not it requires or is susceptible to medical treatment; or]
(iv)
has [***] been suffering from a virulent and incurable form of
leprosy; or
(v)
has [***] been suffering from
venereal disease in a communicable form; or
(vi)
has renounced the world by entering any religious order; or
(vi)
has not been heard of as being alive for a period of seven years or more by
those persons who would naturally have heard of it, had that party been alive;
[***] [ Explanation. —In this sub-section,
the expression “desertion”
means the desertion of the petitioner by the other party to the marriage
without reasonable cause and without the consent or against the wish of such
party, and includes the wilful neglect of the petitioner by the other party to
the marriage, and its grammatical variations and cognate expressions shall be
construed accordingly.] [***]
[(1A)
Either party to a marriage, whether solemnised before or after the commencement
of this Act, may also present a petition for the dissolution of the marriage by
a decree of divorce on the ground—
(i)
that there has been no resumption of cohabitation as between the parties to the
marriage for a period of [one year] or upwards after the passing of
a decree for judicial separation in a proceeding to which they were parties; or
(ii)
that there has been no restitution of conjugal rights as between the parties to
the marriage for a period of [one year] or upwards after the passing
of a decree for restitution of conjugal rights in a proceeding to which they
were parties.]
(2)
A wife may also present a petition for the dissolution of her marriage by a
decree of divorce on the ground,—
(i)
in the case of any marriage solemnised before the commencement of this Act,
that the husband had married again before such commencement or that any other
wife of the husband married before such commencement was alive at the time of
the solemnisation of the marriage of the petitioner: Provided that in either
case the other wife is alive at the time of the presentation of the petition;
or
(ii)
that the husband has, since the solemnisation of the marriage, been guilty of
rape, sodomy or 23 [bestiality; or]
[(iii)
that in a suit under section 18 of the Hindu Adoptions and Maintenance Act,
1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code
of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may
be, has been passed against the husband awarding maintenance to the wife
notwithstanding that she was living apart and that since the passing of such
decree or order, cohabitation between the parties has not been resumed for one
year or upwards; or
[(iv)
that her marriage (whether consummated or not) was solemnised before she
attained the age of fifteen years and she has repudiated the marriage after
attaining that age but before attaining the age of eighteen years.]
Explanation.
—This clause applies whether the
marriage was solemnised before or after the commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976)*.] State Amendment Uttar Pradesh: In its
application to Hindus domiciled in Uttar Pradesh and also when either party to
the marriage was not at the time of marriage a Hindu domiciled in Uttar
Pradesh, in section 13—
(i)
in sub-section (1), after clause (i) insert (and shall be deemed always to have
been inserted) the following clause, namely:—
“(1a) has persistently or repeatedly
treated the petitioner with such cruelty as to cause a reasonable apprehension
in the mind of the petitioner that it will be harmful or injurious for the
petitioner to live with the other party; or”,
and “(viii) has not resumed cohabitation
after the passing of a decree for judicial separation against that party and—
(a)
a period of two years has elapsed since the passing of such decree, or
(b)
the case is one of exceptional hardship to the petitioner or of exceptional
depravity on the part of other party; or
(ii)
for clause (viii) (since repealed in the principal Act) substitute (and shall
be deemed to have been substituted) following clause, namely:—
[
Vide Uttar Pradesh Act 13 of 1962, sec. 2 (w.e.f. 7-11-1962)].
(i)
Cruelty which is a ground for dissolution of marriage may be defined as wilful
and unjustifiable conduct of such character as to cause danger to life, limb or
health, bodily or mental, or as to give rise to a reasonable apprehension of
such a danger. The question of mental cruelty has to be considered in the light
of the norms of marital ties of the particular society, to which the parties
belong, their social values, status, environment in which they live. Cruelty
need not be physical. If from the conduct of the spouse it is established or an
inference can be legitimately drawn that the treatment of the spouse is such
that it causes apprehension in the mind of the other spouse, about his or her
mental welfare then this conduct amounts to cruelty; Maya Devi v. Jagdish
Prasad, AIR 2007 SC 1426.
(ii)
Making false allegations against husband of having illicit relationship and
extramarital affairs by wife in her written statement constitute mental cruelty
of such nature that husband cannot be reasonably asked to live with wife.
Husband is entitled to decree of divorce; Sadhana Srivastava v. Arvind Kumar
Srivastava, AIR 2006 All 7.
(iii)
The expression “Cruelty”
as envisaged under section 13 of the Act clearly admits in its ambit and scope
such acts which may even cause mental agony to aggrieved party. Intention to be
cruel is not an essential element of cruelty as envisaged under section 13 (1)
(ia) of the Act. It is sufficient that if the cruelty is of such type that it
becomes impossible for spouses to live together; Neelu Kohli v. Naveen Kohli,
AIR 2004 All 1.
(iv)
The levelling of false allegation by one spouse about the other having alleged
illicit relations with different persons outside wedlock amounted to mental
cruelty; Jai Dayal v. Shakuntala Devi, AIR 2004 Del 39.
(v)
Mental disorder for relief under section 13 (1) (iii) should be of such a
degree that it is impossible to lead normal marital life or it is unreasonable
to expect a person to put up with a spouse with such condition; B.N. Panduranga
Shet v. S.N. Vijayalaxmi, AIR 2003 Karn 357
(vi)
Due to the criminal complaint filed by the wife, the husband remained in jail
for 63 days and also his father and brother for 20 to 25 days. Therefore, even
though the case of cruelty may not have been proved but as the facts emerging
from the record clearly indicate that the living of the two as husband and wife
would not only be difficult but impossible, the court has no alternative but to
grant a decree of divorce; Poonam Gupta v. Ghanshyam Gupta, AIR 2003 All 51.
(vii)
Unless the entire genesis of the quarrels in the course of which, one of the
spouses holds out a threat to take his or her life is placed before the court,
the very fact that some threat in the course of a quarrel is held out, cannot
be viewed in isolation or construed as mental cruelty to the other spouse;
Nalini Sunder v. G.V. Sundar, AIR 2003 Kar 86.
(viii)
A husband cannot ask his wife that he does not like her company, but she can or
should stay with other members of the family in matrimonial home. Such an
attitude is cruelty in itself on the part of the husband; Yudhishter Singh v. Sarita,
AIR 2002 Raj 382.
(ix)
Removal of mangalsutra by wife at the instance of her husband does not amount
to mental cruelty; S. Hanumantha Rao v. S. Ramani, AIR 1999 SC 1318.
(x)
A threat to commit suicide by the wife amounts to infliction of mental cruelty
on the husband but it should not be uttered in a domestic tiff; Pushpa Rani v.
Vijay Pal Singh, AIR 1994 All 220.
(xi)
Solitary instance of cruelty would not constitute cruelty so as to grant a
decree for divorce rather the behaviour of the other party has to be
persistently and repeatedly treating the other spouse with such cruelty so as
to cause a reasonable apprehension in the mind of the husband/wife that it will
be harmful or injurious for him or her to live with the other party. The
expression “persistently”
means continue firmly or obstinately and the expression “repeatedly”
means to say or do over again; Vimlesh v. Prakash Chand Sharma, AIR 1992 All
261.
7.
CASE LAW : Pinninti Venkataramana And Anr. vsState on 9 August, 1976
According to the petitioner in this petition at the time of
the marriage i.e. in the year 1959 he was 13 years of age and the Ist
Respondent was 9 years of age. The husband contends that in view of the
decision of the Division Bench of this Court in P.A. Saramma v. G.
Ganapatulu , the marriage between him and the Ist respondent was void ab
initio and no marriage in the eye of law and hence the action of the Ist
petitioner in marrying a girl did not amount to an offence punishable under Section 494. Andhra High
Court held that the marriage was valid, as it was not repudiated by the wife.
8.
An exchange of garlands or wearing of Thali is
not essential for a Hindu Marriage.
9.
CASE LAW : Deivanai Achi And Anr. vs R.M. Al.Ct. Chidambaram Chettiar ... on 26 August, 1953
There was a marriage function between the first plaintiff and
the third defendant according to what is described as the 'Suyamariyathai' cult
or the self-respecter's cult under the auspices of the Purohit Maruppu Baugham
or Anti Purohit Association.
Soon after the marriage function, they lived for sometime in
Kottaiyur in the family house. Thereafter, the first plaintiff and the third
defendant went to Malacca, where the first plaintiff was carrying on business.
The second plaintiff was born on 7-2-1936 at Malacca. They returned to India
later and a female child was born to them on 15-4-1940. They again went back to
Malacca in 1941 and they could not return to India till 1946 owing to Japanese
war. But during their stay at Malacca on 15-2-1942, third plaintiff was born
and another female child was also born on 1-11-1945.
The High Court of Madras found that “As in the present case,
no ceremonies have been observed, the doctrine of 'factum valet' cannot help
the plaintiffs. Besides, in this case, as we have already pointed out, the
first plaintiff & the third defendant deliberately chose to deviate from
law and usage and adopted a marriage ceremony not recognised by either. The
doctrine of 'factum valet' cannot, in our opinion, apply to such a case of
deliberate transgression. We must, therefore, hold that no valid marriage has
been established between the first plaintiff and the third defendant and that
the issues of that union are illegitimate.”
10.
According to Hindu Succession Act, illegitimate
children won’t inherit the right of property of his father; but he is entitled
to get the property of his mother.
11.
CASE LAW : Dr. A.N. Mukerji vs State on 5
January, 1968
13.
Children born of a void marriage is illegitimate
where as children born of valid and voidable marriages are legitimate.
14.
However, if legitimate sons consent, there is no
harm in giving property rights to illegitimate sons also.
15.
Illegitimate children also not entitled to get
maintenance from their father.
Then
a KSU Campaign came into the class and informed us on the College Election on
December 22, 2015. KSU wanted to have a canteen and a hostel for GLC, Thrissur.
They also wanted to form a student cooperative society.
The classes of
the day ended there.
