Thursday, December 3, 2015

Daily Reports 02.12.2015




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.
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.

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