SC rejects feminist organisation’s plea for quashing "keep" remarks

New Delhi: The Supreme Court on Wednesday dismissed a petition by a women's group seeking withdrawal of the controversial phrase "keep" used by it in a judgement in which it held that a "one night stand" with a man would not entitle a woman to maintenance.

A bench of justices Markandeya Katju and T S Thakur rejected Mahila Dakshat Samiti's petition on the ground that it had no locus standi(legal right) to question the judgement since it was not a party to the matrimonal dispute in which the judgement was passed.

In the judgement delivered on October 21 last year, the apex court had held "if a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and or as a servant, it would not in our opinion be a relationship in the nature of marriage."

The country's lone woman Additional Solicitor General Indira Jaising and Vinay Bhardwaj, Vice President of the Samiti, expressed dissappointment at the apex court's refusal to withdraw the "derogatory remark."

The bench in a terse order today said "application for permission to file a review petition is rejected. This review petition has been filed on behalf of Mahila Dakshat Samiti seeking review of this court's order dated 21st October, 2010 whereby the appeals were allowed.

"Mahila Dakshat Samiti was not a party before this court or before the High Court or trial court. Having carefully gone through the review petition and connected papers, we see no reason to grant permission to Mahila Dakshat Samiti to file this review petition.

Hence, the application for permission to file review petition is rejected." The apex court in the judgement had ruled that a woman in a live-in relationship is not entitled to maintenance unless she fulfils certain parameters and said merely spending weekends together or a one night stand would not make it a domestic relationship.

It formulated the following parameters for a woman in live-in relationship to seek maintenance.
(1) The couple must hold themselves out to society as being akin to spouses, (2) they must be of legal age to marry, (3) they must be otherwise qualified to enter into a legal marriage including being unmarried, (4) they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
"In our opinion, not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005 (Protection of Women from Domestic Violence Act). To get such benefits, the conditions mentioned by us above must be satisfied and this has to be proved by evidence," the court had said.

The apex court had passed the judgement while setting aside the concurrent orders passed by a matrimonial court and the Madras High Court awarding Rs 500 maintenance to D Patchaiammal who claimed to have married the appellant D Velusamy.

Velusamy had challenged the two courts' order on the ground that he was already married to one Laxmi and Patchiammal was not married to him though he lived with her for some time. Jaising said "the judges have chosen the easy option instead of confronting the issue as would be expected from judges from the Supreme Court."

She said the Samiti was an organisation with an illustrious track record of having worked in the interest of women for the last several decades including formulation of the dowry prohibition act and hence its credibility could never be doubted.

"The issues raised in the review peition do not relate to the parties to the case alone but to women as a class. The issues are use of gender bias language in judgements of the Supreme Court of India.

"It is expected gender-neuter language. The objection was to the word 'keep' and expression used only in relation to women in a highly derogatory context," she said adding the apex court had missed a "historic opportunity to correct a wrong."

Bhardwaj said she was deeply disturbed by the judgement as the apex court since the 1980s had played very progressive roles on women issues.

"As the time goes, the Supreme Court should have taken up positive and progressive views in view of the magnitude of the problems of women. Instead, it has chosen to dismiss the petition," she said.

PTI

http://www.zeenews.com/news693718.html#ixzz1GnM9hINR

SC lays down conditions for women seeking maintenance in live-in relationships

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
*CRIMINAL APPEAL NOS. 2028-2029__OF 2010*
[Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]
D. Velusamy .. Appellant
-versus-
D. Patchaiammal .. Respondent
*
J U D G M E N T*
*Markandey Katju, J.*
1. Leave granted.
2. Heard learned counsel for the appellant. None has appeared for the
respondent although she has been served notice. We had earlier requested Mr.
Jayant Bhushan, learned Senior counsel to assist us as Amicus Curiae in the
case, and we record our appreciation of Mr. Bhushan who was of considerable
assistance to us.
3. These appeals have been filed against the judgment of the Madras High
Court dated 12.10.2009.
4. The appellant herein has alleged that he was married according to the
Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with
Lakshmi a male child was born, who is now studying in an Engineering college
at Ooty. The petitioner is working as a Secondary Teacher in Thevanga
Higher Secondary
School, Coimbatore.
5. It appears that the respondent-D. Patchaiammal filed a petition under
Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore
in which she alleged that she was married to the appellant herein on
14.9.1986 and since then the appellant herein and she lived together in her
father’s house for two or three years. It is alleged in the petition that
after two or three years the appellant herein left the house of the
respondent’s father and started living in his native place, but would visit
the respondent occasionally.
6. It is alleged that the appellant herein (respondent in the petition under
Section 125 Cr.P.C.) deserted the respondent herein (petitioner in the
proceeding under Section 125 Cr.P.C.) two or three years after marrying her
in 1986. In her petition under Section 125 Cr.P.C. she alleged that she did
not have any kind of livelihood and she is unable to maintain herself
whereas the respondent (appellant herein) is a Secondary Grade Teacher
drawing a salary of Rs.10000/- per month. Hence it was prayed that the
respondent (appellant herein) be directed to pay Rs.500/- per month as
maintenance to the petitioner.
7. In both her petition under Section 125 Cr.P.C. as well as in her
deposition in the case the respondent has alleged that she was married to
the appellant herein on 14.9.1986, and that he left her after two or three
years of living together with her in her father’s house.
8. Thus it is the own case of the respondent herein that the appellant left
her in 1988 or 1989 (i.e. two or three years after the alleged marriage in
1986). Why then was the petition under Section 125 Cr.P.C. filed in the year
2001, i.e. after a delay of about twelve years, shall have to be
satisfactorily explained by the respondent. This fact also creates some
doubt about the case of the respondent herein.
9. In his counter affidavit filed by the appellant herein before the Family
Court, Coimbatore, it was alleged that the respondent (appellant herein) was
married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and
customs and he had a male child, who is studying in C.S.I.  Engineering
college at Ooty. To prove his marriage with Lakshmi the appellant produced
the ration card, voter’s identity card of his wife, transfer certificate of
his son, discharge certificate of his wife Lakshmi from hospital,
photographs of the wedding, etc.
10. The learned Family Court Judge has held by his judgment dated 5.3.2004
that the appellant was married to the respondent and not to Lakshmi. These
findings have been upheld by the High Court in the impugned judgment.
11. In our opinion, since Lakshmi was not made a party to the proceedings
before the Family Court Judge or before the High Court and no notice was
issued to her hence any declaration about her marital status vis-àvis the
appellant is wholly null and void as it will be violative of the rules of
natural justice. Without giving a hearing to Lakshmi no such declaration
could have validly be given by the Courts below that she had not married the
appellant herein since such as a finding would seriously affect her rights.
And if no such declaration could have been given obviously no declaration
could validly have been given that the appellant was validly married to the
respondent, because if Lakshmi was the wife of the appellant then without
divorcing her the appellant could not have validly married the respondent.
12. It may be noted that Section 125 Cr.P.C. provides for giving maintenance
to the wife and some other relatives. The word `wife’ has been defined in
Explanation (b) to Section 125(1) of the Cr.P.C. as follows :
“Wife includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not
remarried.”
13. In *Vimala (K) *vs. *Veeraswamy (K) *[(1991) 2 SCC 375], a three - Judge
Bench of this Court held that Section 125 of the Code of 1973 is meant to
achieve a social purpose and the object is to prevent vagrancy and
destitution. Explaining the meaning of the word ‘wife’ the Court held:
“..the object is to prevent vagrancy and destitution. It
provides a speedy remedy for the supply of food,
clothing and shelter to the deserted wife. When an
attempt is made by the husband to negative the claim of
the neglected wife depicting her as a kept-mistress on the
specious plea that he was already married, the court
would insist on strict proof of the earlier marriage. The
term ‘wife’ in Section 125 of the Code of Criminal
Procedure, includes a woman who has been divorced by
a husband or who has obtained a divorce from her
husband and has not remarried. The woman not having
the legal status of a wife is thus brought within the
inclusive definition of the term ‘wife’ consistent with the
objective. However, under the law a second wife whose
marriage is void on account of the survival of the first
marriage is not a legally wedded wife, and is, therefore,
not entitled to maintenance under this provision.”
14. In a subsequent decision of this Court in *Savitaben Somabhat Bhatiya *
vs*. State of **Gujarat** and others*, AIR 2005 SC 1809, this Court held
that however desirable it may be to take note of the plight of an
unfortunate woman, who unwittingly enters into wedlock with a married man,
there is no scope to include a woman not lawfully married within the
expression of ‘wife’. The Bench held that this inadequacy in law can be
amended only by the Legislature.
15. Since we have held that the Courts below erred in law in holding that
Lakshmi was not married to the appellant (since notice was not issued to her
and she was not heard), it cannot be said at this stage that the respondent
herein is the wife of the appellant. A divorced wife is treated as a wife
for the purpose of Section 125 Cr.P.C. but if a person has not even been
married obviously that person could not be divorced. Hence the respondent
herein cannot claim to be the wife of the appellant herein, unless it is
established that the appellant was not married to Lakshmi.
16. However, the question has also be to be examined from the point of view
of The Protection of Women from Domestic Violence Act, 2005. Section 2(a) of
the Act states :
“*2(a) *“aggrieved person” means any woman who is, or
has been, in a domestic relationship with the respondent
and who alleges to have been subjected to any act of
domestic violence by the respondent”;
Section 2(f) states :
“*2(f) *“domestic relationship” means a relationship
between two persons who live or have, at any point of
time, lived together in a shared household, when they are
related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are
family members living together as a joint family”;
Section 2(s) states :
“*2(s) *“shared household” means a household where the
person aggrieved lives or at any stage has lived in a
domestic relationship either singly or along with the
respondent and includes such a household whether
owned or tenanted either jointly by the aggrieved person
and the respondent, or owned or tenanted by either of
them in respect of which either the aggrieved person or
the respondent or both jointly or singly have any right,
title, interest or equity and includes such a household
which may belong to the joint family of which the
respondent is a member, irrespective of whether the
respondent or the aggrieved person has any right, title or
interest in the shared household.”
Section 3(a) states that an act will constitute domestic violence in case
it-
“*3(a) *harms or injures or endangers the health, safety,
life, limb or well-being, whether mental or physical, of
the aggrieved person or tends to do so and includes
causing physical abuse, sexual abuse, verbal and
emotional abuse and economic abuse;” or
(emphasis supplied)
17. The expression “economic abuse” has been defined to include :
“(a) deprivation of all or any economic or financial
resources to which the aggrieved person is entitled
under any law or custom whether payable under an
order of a court or otherwise or which the aggrieved
person requires out of necessity including, but not
limited to, household necessities for the aggrieved
person and her children, if any, *stridhan, *property,
jointly or separately owned by the aggrieved person,
payment of rental related to the shared household
and maintenance”.
(emphasis supplied)
18. An aggrieved person under the Act can approach the Magistrate under
Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d)
the Magistrate can grant maintenance while disposing of the application
under Section 12(1).
19. Section 26(1) provides that the relief mentioned in Section 20 may also
be sought in any legal proceeding, before a civil court, family court or a
criminal court.
20. Having noted the relevant provisions in The Protection of Women from
Domestic Violence Act, 2005, we may point out that the expression `domestic
relationship’ includes not only the relationship of marriage but also a
relationship `in the nature of marriage’. The question, therefore, arises as
to what is the meaning of the expression `a relationship in the nature of
marriage’. Unfortunately this expression has not been defined in the Act.
Since there is no direct decision of this Court on the interpretation of
this expression we think it necessary to interpret it because a large number
of cases will be coming up before the Courts in our country on this point,
and hence an authoritative decision is required.
21. In our opinion Parliament by the aforesaid Act has drawn a distinction
between the relationship of marriage and a relationship in the nature of
marriage, and has provided that in either case the person who enters into
either relationship is entitled to the benefit of the Act.
22. It seems to us that in the aforesaid Act of 2005 Parliament has taken
notice of a new social phenomenon which has emerged in our country known as
live-in relationship. This new relationship is still rare in our country,
and is sometimes found in big urban cities in India, but it is very common
in North America and Europe. It has been commented upon by this Court in *S.
Khushboo *vs. *Kanniammal & Anr. *(2010) 5 SCC 600 (vide para 31).
23. When a wife is deserted, in most countries the law provides for
maintenance to her by her husband, which is called alimony. However, earlier
there was no law providing for maintenance to a woman who was having a
live-in relationship with a man without being married to him and was then
deserted by him.
24. In USA the expression `palimony’ was coined which means grant of
maintenance to a woman who has lived for a substantial period of time with a
man without marrying him, and is then deserted by him (see ‘palimony’ on
Google). The first decision on palimony was the well known decision of the
California Superior Court in *Marvin *vs. *Marvin *(1976) 18 C3d660. This
case related to the famous film actor Lee Marvin, with whom a lady Michelle
lived for many years without marrying him, and was then deserted by him and
she claimed palimony. Subsequently in many decisions of the Courts in USA,
the concept of palimony has been considered and developed. The US Supreme
Court has not given any decision on whether there is a legal right to
palimony, but there are several decisions of the Courts in various States in
USA. These Courts in USA have taken divergent views, some granting palimony,
some denying it altogether, and some granting it on certain conditions.
Hence in USA the law is still in a state of evolution on the right to
palimony.
25. Although there is no statutory basis for grant of palimony in USA, the
Courts there which have granted it have granted it on a contractual basis.
Some Courts in USA have held that there must be a written or oral agreement
between the man and woman that if they separate the man will give palimony
to the woman, while other Courts have held that if a man and woman have
lived together for a substantially long period without getting married there
would be deemed to be an implied or constructive contract that palimony will
be given on their separation.
26. In *Taylor** *vs. *Fields *(1986) 224 Cal. Rpr. 186 the facts were that
the plaintiff Taylor had a relationship with a married man Leo. After Leo
died Taylor sued his widow alleging breach of an implied agreement to take
care of Taylor financially and she claimed maintenance from the estate of
Leo. The Court of Appeals in California held that the relationship alleged
by Taylor was nothing more than that of a married man and his mistress. It
was held that the alleged contract rested on meretricious consideration and
hence
was invalid and unenforceable. The Court of Appeals relied on the fact that
Taylor did not live together with Leo but only occasionally spent weekends
with him. There was no sign of a stable and significant cohabitation between
the two.
27. However, the New Jersey Supreme Court in *Devaney *vs. *L’ Esperance *195
N.J., 247 (2008) held that cohabitation is not necessary to claim palimony,
rather “it is the promise to support, expressed or implied, coupled with a
marital type relationship, that are indispensable elements to support a
valid claim for palimony”. A law has now been passed in 2010 by the State
legislature of New Jersey that there must be a written agreement between the
parties to claim palimony.
28. Thus, there are widely divergent views of the Courts in U.S.A. regarding
the right to palimony. Some States like Georgia and Tennessee expressly
refuse to recognize palimony agreements.
29. Written palimony contracts are rare, but some US Courts have found
implied contracts when a woman has given up her career, has managed the
household, and assisted a man in his business for a lengthy period of time.
Even when there is no explicit written or oral contract some US Courts have
held that the action of the parties make it appear that a constructive or
implied contract for grant of palimony existed.
30. However, a meretricious contract exclusively for sexual service is held
in all US Courts as invalid and unenforceable.
31. In the case before us we are not called upon to decide whether in our
country there can be a valid claim for palimony on the basis of a contract,
express or implied, written or oral, since no such case was set up by the
respondent in her petition under Section 125 Cr.P.C.
32. Some countries in the world recognize common law marriages. A common law
marriage, sometimes called de facto marriage, or informal marriage is
recognized in some countries as a marriage though no legally recognized
marriage ceremony is performed or civil marriage contract is entered into or
the marriage registered in a civil registry (see details on Google).
33. In our opinion a ‘relationship in the nature of marriage’ is akin to a
common law marriage. Common law marriages require that although not being
formally married :-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage,
including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the
world as being akin to spouses for a significant period of time.
(see ‘Common Law Marriage’ in Wikipedia on Google)
In our opinion a ‘relationship in the nature of marriage’ under the 2005 Act
must also fulfill the above requirements, and in addition the parties must
have lived together in a ‘shared household’ as defined in Section 2(s) of
the Act. Merely spending weekends together or a one night stand would not
make it a ‘domestic relationship’.
34. In our opinion not all live in relationships will amount to a
relationship in the nature of marriag8e to get the benefit of the Act of
2005. To get such benefit the conditions mentioned by us above must be
satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom
he maintains financially and uses mainly for sexual purpose and/or as a
servant it would not, in our opinion, be a relationship in the nature of
marriage’
35. No doubt the view we are taking would exclude many women who have had a
live in relationship from the benefit of the 2005 Act, but then it is not
for this Court to legislate or amend the law. Parliament has used the
expression `relationship in the nature of marriage’ and not `live in
relationship’. The Court in the grab of interpretation cannot change the
language of the statute.
36. In feudal society sexual relationship between man and woman outside
marriage was totally taboo and regarded with disgust and horror, as depicted
in Leo Tolstoy’s novel `Anna Karenina’, Gustave Flaubert’s novel `Madame
Bovary’ and the novels of the great Bengali writer Sharat Chandra
Chattopadhyaya.
37. However, Indian society is changing, and this change has been reflected
and recognized by Parliament by enacting The Protection of Women from
Domestic Violence Act, 2005.
38. Coming back to the facts of the present case, we are of the opinion that
the High Court and the learned Family Court Judge erred in law in holding
that the appellant was not married to Lakshmi without even issuing notice to
Lakshmi. Hence this finding has to be set aside and the matter remanded to
the Family Court which may issue notice to Lakshmi and after hearing her
give a fresh finding in accordance with law. The question whether the
appellant was married to the respondent or not can, of course, be decided
only after the aforesaid finding.
39. There is also no finding in the judgment of the learned Family Court
Judge on the question whether the appellant and respondent had lived
together for a reasonably long period of time in a relationship which was in
the nature of marriage. In our opinion such findings were essential to
decide this case. Hence we set aside the impugned judgment of the High Court
and Family Court Judge, Coimbatore and remand the matter to the Family Court
Judge to decide the matter afresh in accordance with law and in the light of
the observations made above. Appeals allowed.
……………..……………….J.
(MARKANDEY KATJU)
.…………………………..….J.
(T. S. THAKUR)
NEW DELHI;
21st OCTOBER, 2010

http://www.indiankanoon.org/doc/1521881/

***********************************************************

‘Offensive’ SC judgment cites Wikipedia to define legal term

http://www.legallyindia.com/201010231445/Bar-Bench-Litigation/offensive-sc-judgment-cites-wikipedia-to-define-legal-term

 

A Supreme Court of India judgment, while defining “Common Law Marriage”, cited as a source Wikipedia, the online encyclopaedia anyone can edit. The same judgment on live-in relationships was also slammed by additional solicitor general Indira Jaisingh for using gender biased terms “one night stand” and “keep”.

In the criminal appeal of D. Velusamy v D. Patchaiammal (arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010) Justice Markandey Katju ruled on Thursday (21 October) in a landmark case that determined the ambit of “live-in relationships” for the purpose of falling under the Domestic Violence Act 2005.

Katju said in the judgment, which is available on Indiankanoon.org: “If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.”

He added in paragraph 33 of the judgment: “Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.”

Jaisingh, who was one of the architects of the Domestic Violence Act, objected to the use of “keep” and “one night stand”, which she said were derogatory of women, reported the Times of India.

Jaisingh told the court: “Supreme Court judgments are cited across the world. But this one possibly will tell the world that in India, women are regarded as `keep' or `rakhels'. I strongly object to the use of these words in your judgment. I do not expect this from the Supreme Court in the 21st century. I feel offended by it.”

Katju’s also cited Wikipedia for the definition of “Common Law Marriage”. Wikipedia is an online encyclopaedia that anyone can edit any time and content can therefore not be guaranteed to always be accurate or properly sourced. A Mint editorial from yesterday noted: “Wikipedia is mutable, easily changed by its users; the Wikipedia page seen by judges when preparing a verdict can be different from that seen by readers 10 minutes or six months or seven years hence. A court that can quote Flaubert and Tolstoy should surely be able to call up more lasting, reliable resources than Wikipedia.”

According to a search for the word Wikipedia on Indiankanoon.org, the online encyclopaedia has been cited as a source at least 63 times by Indian courts, which was first posted on Twitter by @gkjohn. US courts too have cited Wikipedia in the past, according to the New York Times, although apparently not to define legal terms.

The Wikipedia entry on Common Law Marriage has not been edited since 13 October. Katju’s judgment only paraphrased parts of the Wikipedia article but did not appear to have copied and pasted any wording.

Excerpt from judgment:

“33. In our opinion a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married :-

(a) The couple must hold themselves out to society as being

akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal

marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

(see ‘Common Law Marriage’ in Wikipedia on Google)”

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When Is It Appropriate to Cite to Wikipedia?

When Is It Appropriate to Cite to Wikipedia?

posted by Daniel Solove

Wikipedia, the online encyclopedia that anybody can edit, is frequently getting cited by courts and academics. The New York Times reports:

A simple search of published court decisions shows that Wikipedia is frequently cited by judges around the country, involving serious issues and the bizarre — such as a 2005 tax case before the Tennessee Court of Appeals concerning the definition of “beverage” that involved hundreds of thousands of dollars, and, just this week, a case in Federal District Court in Florida that involved the term “booty music” as played during a wet T-shirt contest.

More than 100 judicial rulings have relied on Wikipedia, beginning in 2004, including 13 from circuit courts of appeal, one step below the Supreme Court. (The Supreme Court thus far has never cited Wikipedia.)

“Wikipedia is a terrific resource,” said Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago. “Partly because it so convenient, it often has been updated recently and is very accurate.” But, he added: “It wouldn’t be right to use it in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.”

Paul Caron writes:

I asked my crack research assistant, Drew Marksity, to determine how many times law professors have cited Wikipedia in law review articles. Using Westlaw’s JLR database, Drew found that 545 articles cite Wikipedia. (An additional 125 articles mention Wikipedia but do not cite it as authority.)

Brian Leiter writes:

[Caron] discreetly, does not list the names of the authors of these articles, all of whom should presumably be blacklisted from scholarly careers (unless, of course, the citation was in the context of, “Wikipedia reflects the popular prejudice that…” or “Wikipedia records this error as though it were fact, proving yet again the unreliability of the Internet…” or “In this instance, actual scholarly sources confirm what Wikipedia reports…”).

Inside Higher Ed reports that some schools are barring students from citing to Wikipedia:

While plenty of professors have complained about the lack of accuracy or completeness of entries, and some have discouraged or tried to bar students from using it, the history department at Middlebury College is trying to take a stronger, collective stand. It voted this month to bar students from citing the Web site as a source in papers or other academic work. All faculty members will be telling students about the policy and explaining why material on Wikipedia — while convenient — may not be trustworthy.

When is it appropriate to cite to Wikipedia?

I am generally against categorical bans, as the issue really depends upon the context. I did a search of some of the Westlaw citations, and below the fold I’ll list a few.

1. From 59 Stan. L. Rev. 257, in a footnote: “For an overview of the use of modification or “mod” software in computer gaming, see generally Mod (Computer Gaming), WIKIPEDIA, http:// en.wikipedia.org/wiki/Mod_%28computer_gaming%29.”

2. From 116 Yale L.J. 226, in a footnote: “Between 1965 and 1974, the government of Sweden, a nation of roughly 4 million households, supervised the construction of 1 million housing units (the “Million Programme”), a majority of which were subsidized apartments. See Christopher Caldwell, Islam on the Outskirts of the Welfare State, N.Y. Times Mag., Feb. 5, 2006, at 55, 56; Wikipedia, Million Programme, http://en.wikipedia.org/wiki/Million_Programme (last visited Sept. 1, 2006).”

3. From 41 Ga. L. Rev. 1, in a footnote: “Spyware is malicious software that takes control of a user’s computer for the benefit of a third party and can be used to surreptitiously monitor the user’s online activity. Wikipedia, Spyware, http:// en.wikipedia.org/wiki/Spyware (last visited Aug. 25, 2006).”

4. From 10 Lewis & Clark L. Rev. 673, in a footnote: “For example, after premature and unverifiable claims of cold fusion by Stanley Pons and Martin Fleischmann were discredited, both Pons and Fleischmann were driven from their academic positions. See, e.g., Wikipedia, Stanley Pons, http://en.wikipedia.org/wiki/Stanley_Pons (last visited Apr. 11, 2006) (noting that both Pons and Fleischmann moved to France and accepted jobs for the Toyota Corporation after their cold fusion work was discredited).”

5. From 4 Ohio St. J. Crim. L. 223, in the text: “Ridgway, the most prolific serial killer in American history, pleaded guilty to forty-eight charges of aggravated first degree murder. King County Prosecuting Attorney Norm Maleng then congratulated himself: ‘This agreement was the avenue to the truth. And in the end, the search for the truth is still why we have a criminal justice system.’ [FN]” From the footnote: “See Wikipedia entry on Gary Ridgway, at http:// en.wikipedia.org/wiki/Gary_Ridgway (last visited Mar. 23, 2006).”

6. From 37 Loy. U. Chi. L.J. 753, in a footnote: “Ebert & Roeper gives a “Thumbs Up” (favorable review) or a “Thumbs Down” (unfavorable review). Wikipedia: Ebert & Roeper, http://en.wikipedia.org/wiki/Ebert_&_ Roeper (last visited Feb. 6, 2006).”

7. From 79 S. Cal. L. Rev. 945, defining the term “netizen”: “See Wikipedia, Netizen, http://en.wikipedia.org/wiki/Netizen (last visited May 19, 2006). A Netizen (a portmanteau of Internet and citizen), also known as a cybercitizen, is a person actively involved in online communities for the purpose of giving and receiving viewpoints, furnishing information, fostering the Internet as an intellectual and a social resource, and making choices for self-assembled communities. See id.”

8. From 115 Yale L.J. 1699, in the text: “So perhaps he won’t take offense if I call him a bricoleur, defined by Wikipedia as “a person who creates things from scratch, is creative and resourceful: a person who collects information and things and then puts them together in a way that they were not originally designed to do. [FN]” From the footnote: “Bricolage, in Wikipedia, http://en.wikipedia.org/wiki/Bricolage (last visited Dec. 7, 2005).”

The examples above include several by well-known law professors and a judge. I’m curious which citations readers find appropriate or inappropriate and why.

UPDATE: Mary Dudziak (law, USC) weighs in over at Legal History Blog about Wikipedia’s accuracy in history articles.

http://www.concurringopinions.com/archives/2007/02/when_is_it_appr.html

THE IMPORTANCE OF MITAKSHARA IN THE 21ST CENTURY

THE IMPORTANCE OF MITAKSHARA IN THE 21ST CENTURY

*
By Justice Markandey Katju+
Cite as : (2005) 7 SCC (J) 3

When I was informed of the topic: "The importance of Mitakshara in the 21st century" my initial reaction was that Mitakshara has hardly got any importance today except with regard to coparcenary property rights of Hindus. As you all know, most of the old Hindu laws were replaced by parliamentary statutes in 1955 and 1956 viz. the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956, the Hindu Minority and Guardianship Act, 1956, etc. These Acts have substituted the Mitakshara and the Dayabhaga law except with regard to succession to ancestral property, which continues to be covered by the Mitakshara vide Section 6 of the Hindu Succession Act, 1956.

This is a practical age. Lawyers are interested in knowing the law which will help them in their cases, and they are hardly interested in purely academic matters which have little practical application. Hence, hardly anyone reads the Mitakshara or Dayabhaga today, as they have largely been superseded by the statutes made by Parliament.

However, I wish to speak on the topic from a somewhat different angle.

As is well known, the Mitakshara prevailed all over India except in Bengal and Assam where the Dayabhaga prevailed. The Mitakshara is a commentary on only one Smriti called Yajnavalkya Smriti, whereas Dayabhaga is a digest of all the Smritis.

Although Hindu law is regarded as having emanated from the Vedas (Shruti) the truth is that there is scarcely any law in the Veda (Shruti) and the Hindu law that has really emanated from the Smritis. There were large number of Smritis of which the surviving ones are of Manu, Yajnavalkya, Vishnu, Narada, Apastamba, Gautam, Parasara, Vashist, Katyayana, etc.

As I have mentioned, the Mitakshara is a commentary only on the Yajnavalkya Smriti. The question therefore which arises is as to why Vijnaneshwara chose only the Yajnavalkya Smriti for his commentary. There was Manu Smriti which was held in even greater respect than Yajnavalkya Smriti, but Vijnaneshwara preferred to write his commentary on the Yajnavalkya Smriti rather than on Manu Smriti.

We can get the answer to this question if we compare Manu Smriti with Yajnavalkya Smriti. Manu Smriti is not a systematic treatise. It does not have a clear-cut division between religion and law, as in Yajnavalkya Smriti. If we read the Manu Smriti, we will find that there is one shloka on religion, the next shloka on law, third on morality, etc. Everything is jumbled up. On the other hand the Yajnavalkya Smriti is divided into three chapters. The first chapter is called Achara which deals with religion, the second chapter is called Vyavahara which deals with law, and the third chapter is called Prayaschit which deals with penance. Thus, there is a clear demarcation between law and religion in Yajnavalkya Smriti, which is not to be found in the Manu Smriti. This demarcation between law and religion itself is a great advance over the Manu Smriti. Thus, the Yajnavalkya Smriti marks a tremendous advance in law over the Manu Smriti. Law is now clearly separated from religion. This is analogous to the Roman law or to the positivist jurisprudence in the 19th century of Bentham and Austin.

Also, the Yajnavalkya Smriti is shorter and more liberal, particularly towards women than the Manu Smriti. It was perhaps for this reason that Vijnaneshwara preferred the Yajnavalkya Smriti to the Manu Smriti for writing his commentary.

As is well known, the Mitakshara was written by Vijnaneshwara during the reign of Vikramarka, a Chalukya ruler of the 11th century A.D. Although, the Mitakshara was written by a South Indian, its remarkable feature is that its authority spread all over India except Bengal and Assam (where too it has great respect) and it was accepted as the authoritative text on Hindu law even in North India.

Mitakshara was certainly not a law made by Parliament. In fact, in those days there was no Parliament and the law consisted of treatises of learned jurists. The Mitakshara was accepted as an authoritative text on Hindu law not due to promulgation by any sovereign authority such as the King or Parliament, but due to its tremendous scholarship, logical analysis and the sheer force of intellect of its author.

The importance of the Mitakshara therefore is that it teaches us to have respect for intellect and learning wherever it may come from. As the Rig Veda says,

"Let noble thoughts come to us from every side."

or as it is said:

Lons'ks iwT;rs jktk

fo}ku loZ= iwT;rs

which means "A king is worshipped only in his own country, but a learned man is worshipped everywhere."

This is the lesson which the Mitakshara teaches us in the 21st century. If India has to rise as a nation we must not be sectarian or chauvinists but all must feel like Indians living like a united family and must respect each other, whether we come from North or South, East or West.

The second importance of Vijnaneshwara's Mitakshara in India in the 21st century is the great progress it made in traditional Hindu law by making it secular. In this connection it may be mentioned that in ancient India there was not only great development in Philosophy, Mathematics and Science, but there was also great advancement in the field of law.

Until the Mitakshara of Vijnaneshwara came into existence, Smritis and commentaries were largely religious and not secular. It was the Mitakshara which was the first to make the laws of property and inheritance secular.

The bifurcation of the Mitakshara and Dayabhaga was due to two different interpretations given to a single word "sapinda". Manu has written that when a man dies, his property goes to his nearest "sapinda". The question is therefore what is the meaning of the word "sapinda". That depends upon the meaning of the word "pinda". According to Dayabhaga, "pinda" means the rice balls which are offered in the Shraddha ceremony to one's deceased ancestors. On the other hand, according to the Mitakshara the word "pinda" does not mean the rice balls offered at the Shraddha ceremony at all but it means the particles of the body of the deceased.

The term "sapinda" as used in the Smritis and by the commentators before Vijnaneshwara meant only those connected with the funeral obligations. Vijnaneshwara's definition of "sapinda" as one connected by the particles of the same body was apparently unknown to any previous commentator. He cites no Smriti in support of his view, but only the Vedic texts on the theory of heredity which do not mention "pinda" or "sapinda" at all. As Nilakantha says in "Samskara Mayukha":

"Vijnaneshwara abandoned the theory of connection through the rice-ball offering and accepted the theory of transmission of constituent particles."

In this connection the Mitakshara may be contrasted to the Dayabhaga system. In the chapter which deals with the subject of succession, Dayabhaga appeals to the doctrine of religious efficacy at every step, testing the claims of rival heirs by their numbers and nature of their respective offerings. On the other hand, the Mitakshara never once alludes to such a test, as noted by the Privy Council in Balasubrahmanya Pandya Thalaivar v. M. Subbayya Tevar1, IA at p. 102. The claims of rival heirs are determined primarily by the test of degrees of propinquity and not religious efficacy. Even persons who confer no religious benefits to the deceased are admitted as heirs for the reason of affinity. Vijnaneshwara states emphatically that "sapinda" relationship does not depend upon the relationship of the deceased through the offering of the "pindas" and his getting it or not, but it depends upon having the same particles of one's body. Vijnaneshwara's new definition was therefore revolutionary. It divested the word "sapinda" of its religious meaning, and was in keeping with the new orientation which he gave to the Vyavahara or civil law by treating property and inheritance as purely secular matters, like the Roman lawyers. He rested the rules of law on purely practical and rational considerations. Combating the view that the wealth of a regenerate man is designed for religious uses exclusively, Vijnaneshwara says:

"If that were so, other purposes of opulence and gratification, which are to be effected by means of wealth, must remain unaccomplished and if that be the case, there is an inconsistency in the following passages of Yajnavalkya, Gautama and Manu, 'Neglect not religious duty, wealth or pleasure in the proper season.' "

As stated above, Vijnaneshwara relies on no Smriti authority in support of his contention that the word "sapinda" has a secular and not religious connotation. Instead, Vijnaneshwara displayed his creative brilliance by relying for this purpose on Jaimini's Lipsa Sutras as he calls the 3rd Adhikarana of Chapter I Book IV of Jaimini's Sutras.

According to Vijnaneshwara, the origin of property is popular recognition, and hence the basis of inheritance and succession is relationship by blood. While Jimutavahana makes the text of Manu on the subject the foundation of his principle of inheritance (because Manu emphasises the spiritual aspect), Vijnaneshwara mainly relies on the text of Yajnavalkya, because the latter prefers the matter of factual aspect. Vijnaneshwara utilises the Mimansa Adhikarana as interpreted by Prabhakara who is reputed to be an heterodox propounder of the Mimansa Sutras, while the orthodox interpretation of the Adhikarana as given by Savaraswami and Kumarila Bhatta gives no support to Vijnaneshwara's views.

Thus, we see that Vijnaneshwara utilises the Mimansa principles, particularly, the Prabhakara school, for striking out a new, secular path in the field of law.

This new, revolutionary change in the law which Vijnaneshwara effected by his new definition of the word "sapinda" had remarkable practical effects. For instance, Jimutavahana who wrote the Dayabhaga, did not permit inheritance to a son at birth. This is because Dayabhaga followed the traditional rule that only the person who can perform Shraddha for his ancestor can inherit the property.

In the book called Parvana Shraddha the list of persons who can perform Shraddha is mentioned. At Serial No. 1 of the list is the son. At Serial No. 2 is the son's son, etc. The general rule is that if a person at a higher position in the list is available, then one cannot go down the list, and the list terminates there. For instance, if the son is alive, then the son's son (i.e. grandson of the deceased) has no right to perform the Shraddha, because the grandson is at Serial No. 2 in the list given in Parvana Shraddha, whereas the son is at Serial No. 1. Hence, the grandson of the deceased has no right to inherit the property when the son is alive, because the grandson has no right to perform Shraddha when the son is alive. It is for this reason that there is no inheritance at birth in Dayabhaga when the father is alive. This is in sharp contrast to the Mitakshara in which the son inherits a share in the ancestral property at birth.

Similarly, in Dayabhaga the unborn son in the mother's womb cannot inherit a share in the property, because an unborn son cannot perform Shraddha. On the other hand, in the Mitakshara an unborn son in the mother's womb gets a share in the ancestral property. Dayabhaga prefers the father to the mother, because he presents two oblations in which the deceased son participates, while the mother presents none. Vijnaneshwara takes exactly the opposite view on the ground that "her propinquity is greatest". The view of Vijnaneshwara is reflected in the Hindu Succession Act, 1956 because the mother of a deceased Hindu is a Class I heir, and is hence automatically entitled to a share in the property of her deceased son, whereas the father is only a Class II heir, and will only get the property if there is no Class I heir. Thus even today a mother's position is higher than the father so far as succession is concerned, and this is in accordance with Vijnaneshwara's view.

Similarly, the right of a daughter to succeed is rested by Jimutavahana upon the funeral oblations which may be hoped for from her son, and the exclusion of widowed, or barren, or sonless daughters, is the natural result. The Mitakshara follows Brihaspati in basing her claim upon simple consanguinity. As a son, so does the daughter of a man proceed from his several limbs. How then can any other person take her father's wealth? And he excludes neither the widowed nor the barren daughter, but prefers one to another, accordingly as she is unmarried or married, poor or rich, that is, according as she has the best natural claim to be provided for.

The right of a daughter's son when he succeeds on the death of the widow and daughter certainly rests far more upon consanguinity than on religious efficacy. The preference of the daughter's son to agnates, whose claims based upon pinda offerings are stronger, can only be explained by propinquity. No doubt, according to Manu, Vishnu and Yajnavalkya, a daughter's son should perform Shraddha for the maternal grandfather. But, from the way Vishnu expresses it, the rule appears to be recommendatory. According to the Mitakshara, the Shraddha of the maternal grandfather is not obligatory but is only optional, except when the mother's sapindikarana has taken place with the maternal grandfather.

The express view laid down in the Mitakshara on the Shraddha rites that sapinda-relationship with the deceased is wholly independent of his being benefited by the pindas or not, is decisive and is consistent only with the conclusion that propinquity must be judged without reference to the grades, number or quality of the funeral offerings.

The conclusion therefore is irresistible that the Mitakshara does not admit religious efficacy either as a basis of heirship or as a measure of propinquity. The rules governing the right to perform Shraddhas or the offering of pindas, though in part determined by propinquity, are also in part influenced by different considerations. Religious efficacy as deduced from these rules can therefore furnish no safe or satisfactory test as regards the order of succession.

The above discussion shows that Vijnaneshwara struck a totally new note in the development of Hindu law and made it secular. This has great importance for the 21st century when secularism is absolutely essential for the unity and progress of the nation.

India is a country with tremendous diversity, innumerable religions, castes, languages, ethnic groups, cultures, etc. Hence only secularism and respect for everybody can keep the country together and make it progress. That is also the mandate of the Constitution, vide Articles 25 to 30 of the Constitution.

Apart from the above, the Mitakshara of Vijnaneshwara liberalised the law with regard to women. He provided for maintenance not only of the chaste wife but also the unchaste wife and unchaste widow. Also, while earlier writers circumscribed women's property within the narrow limits prescribed by Manu, Vijnaneshwara included all property however acquired within the definition. In this connection his liberal views evoked protests from conservative scholars, one writer going so far as to say that a particular rule was evolved by Vijnaneshwara out of his brain (LodiksydfYir) and hence deserved no consideration. However, ultimately all scholars recognised and accepted his views. Due to his progressive views women became entitled to hold and inherit property.

Hence, even though the Mitakshara may not be in vogue today except in matters of Hindu coparcenary property, yet the path it has shown is the path which India should pursue for its progress and prosperity.

I will conclude by quoting the Mitakshara:

uklhnfLr Hkfo(;fr f{kfrrys dY;k.kdYia iqaj

rks g(V% Jqr ,o ok f{kfrifr% JhfodzekdksZie%A

foKkus'ojif.Mrks u Hktrs fdapkU;nU;ksieJkdYi

fLFkjeLrq dYiyfrdkdYia rnsr=;aAA

(There neither was, nor is, nor will ever be a city like Kalyana, or a king like Vikrama or a pandit like Vijnaneshwara. May these three live for ever.) 

* Speech delivered at a function held in honour of the great jurist Vijnaneshwara at Gulbarga University, Gulbarga, Karnataka on 31-12-2004.

+ Chief Justice, Madras High Court.

1. (1938) 65 IA 93

INTERPRETATION OF ACT--APPLY TO DV ACT

INTERPRETATION OF ACT--APPLY TO DV ACT

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5614 OF 2009
(Arising out of SLP(C) No. 2703 of 2008)
Vijay Narayan Thatte & Ors. .... Appellants
Versus
State of Maharashtra & Ors. .... Respondents
O R D E R
1. Heard Shri Harish Salve and Shri Shyam Divan, learned senior counsel for the appellants and learned Attorney General of India and Shri Shekhar Naphade, learned learned senior counsel for the respondents.
2. Leave granted.
3. This appeal has been filed against the impugned judgment and order dated 21.01.2008 passed by a Division Bench of the High Court of Bombay whereby the writ petition filed by the appellants herein has been rejected.
4. The facts in brief are that a Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter for short 'the Act') was issued in respect of the land in question on 29.8.2002. Thereafter a Notification under 2 Section 6 of the Act was issued on 18.6.2003. The said Notification under Section 6 was challenged and the writ petition filed by the appellants was allowed on 20.1.2004 and the Notification under Section 6 of the Act dated 18.06.2003 was quashed. Subsequently a second Notification under Section 6 dated 30.10.2006 was issued by the State Government.
5. The short question that arises for consideration is whether the Notification under Section
6 dated 30.10.2006 is valid. In our opinion, the said Notification was clearly barred by
clause (ii) of the proviso to Section 6 of the Act which reads as under :-
"[Provided that no declaration in respect of any particular land covered by a
notification under section 4, sub-section (1),-
(i) ........ ......... .......
(ii) published after the commencement of the Land Acquisition
(Amendment) Act, 1984, shall be made after the expiry of one year
from the date of the publication of the notification;"
It can be seen from the aforesaid proviso to Section 6 that it is couched in negative language. It is well settled that when a Statute is couched in negative language it is ordinarily regarded as peremptory and mandatory in nature. 3 [See Principles of Statutory Interpretation by Justice G.P. Singh 11th Edition, 2008 pages 390 to 392]. As stated by Crawford "Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience." [See Crawford : Statutory Construction P. 523; See also in this connection Haridwar Singh Vs. Begum Sumbra, AIR 1972 SC 1242 (1247), Lachmi Narain Vs. Union of India AIR 1976 SC 714 (726), Mannalal Khetan Vs. Kedarnath Khetan AIR 1977 SC 536 etc.]
6. In this connection we may also refer to the Mimansa Rules of Interpretation, which were our traditional principles of interpretation for over 2500 years, but which are unfortunately ignored in our Courts of law today.
7. It is deeply regrettable that in our Courts of law lawyers quote Maxwell and Craies but nobody refers to the Mimansa Principles of Interpretation. Most lawyers would not have even heard of their existence. Today our so-called educated people are largely ignorant about the great intellectual achievements of our ancestors and the intellectual treasury which they have bequeathed us. The Mimansa Principles of Interpretation is part of that great intellectual treasury, but it is distressing to note that apart from the reference to these principles in the judgment 4 of Sir John Edge, the then Chief Justice of Allahabad High Court in Beni Prasad vs. Hardai Bibi 1892 ILR 14 All 67 (FB), a hundred years ago and in some judgments of one of us (M. Katju, J.) there has been almost no utilization of these principles even in our own country. Most of the Mimansa Principles are rational and scientific and can be utilized in the legal field (see in this connection K.L. Sarkar's `Mimansa Rules of Interpretation' which is a collection of Tagore Law Lectures delivered in 1905 and which contains the best exposition of these principles).
8. The Mimansa Principles of Interpretation, as laid down by Jaimini in his sutras around 6th Century B.C. and as explained by Sabar, Kumarila Bhatta, Prabhakar, Mandan Mishra, etc, were regularly used by our renowned jurists like Vijnaneshwara (author of Mitakshara), Jimutvahana (author of Dayabhaga), Nanda Pandit (author of Dattaka Mimansa), etc. Whenever there was any conflict between two Smritis, e.g., Manusmriti and Yajnavalkya Smriti, or ambiguity or absurdity in any Smriti these principles were utilized. Thus, the Mimansa Principles were our traditional system of interpretation of legal texts. Although originally they were created for interpreting religious texts pertaining to the Yagya (sacrifice), gradually they came to be utilized for 5 interpreting legal texts also (see in this connection P.V. Kane's `History of the Dharmashastra', Vol.V, Pt.II, Ch.XXIX and Ch.XXX, pp. 1282-1351), and also for interpreting texts on philosophy, grammar, etc. i.e. they became of universal application. Thus, Shankaracharya has used the Mimansa adhikaranas in his bhashya on the Vedanta sutras.
9. While the first edition of Maxwell's book was published in 1875, in India we have been doing interpretation for over 2500 years, as already stated above. There were hundreds of books (all in Sanskrit) written on the subject, though only a few dozens have survived the ravages of time, but even these show how deep our ancestors went into the subject of interpretation.
10. To give an example the Mimansakas examine the subject of negative Vidhis (negative injunctions such as the one in the proviso to Section 6) very searchingly and exhaustively. First of all, they distinguish between what may be called prohibitions against the whole world, and those against particular persons only. This distinction resembles that between judgments or rights in rem and judgments or rights in personam. The former prohibitions are called Pratishedha and the latter Paryudasa. For example, the 6 prohibitory clause `Do not eat fermented (stale) food (na kalanjam bhakshayet) is a Pratishedha; while the prohibition `those who have taken the Prajapati vow must not see the rising sun' is a Paryudasa. In the second place, Pratishedhas are divided practically into two sub-clauses viz. those which prohibit a thing without any reference to the manner in which it may be used, and those which prohibit it only as regards a particular mode of using. For instance, `Do not eat fermented food' prohibits the use of it under all circumstances, while `Do not use the Sorasi vessel at dead of night' forbids the use of the vessel only at the dead of night.
11. Then Paryudasa is also of two kinds. In one case, it relates to a person performing some special act which is not enjoined by a Vidhi, as in the case of the Prajapati vow. In the other, it relates to a person engaged in performing a Vidhi; as for instance, when one is to do Shradh during the full moon by virtue of a Vidhi but not in the night of the full moon. In this case, the prohibition of doing Shradh in the night is a Paryudasa, which is the same as an exception or proviso as we understand these terms. For, the clause `not in the night' is an exception to the rule `Perform the Shradh during the full moon'. These are the four classes of 7 negative clauses. The first class, of which the Kalanja (fermented food) clause is an example, may well be called a condemnatory prohibition. The second class consists also of absolute prohibitions of things under certain circumstances, as in the case of the Sorasi vessel. The third class consists of prohibitions in relation to persons in a given situation, as in the case of the Prajapati vow. The fourth class restricts the scope of action of persons engaged in fulfilling an injunction, as regards the time, place or manner of carrying out the substantive element of the injunction.
12. Thus we see that in the Mimansa system as regards negative injunctions (such as the one contained in the proviso to Section 6 of Land Acquisition Act) there is a much deeper discussion on the subject than that done by Western Jurists. The Western writers on the subject of interpretation (like Maxwell, Craies, etc.) only say that ordinarily negative words are mandatory, but there is no deeper discussion on the subject, no classification of the kinds of negative injunctions and their effects.
13. In the Mimansa system illustrations of many principles of interpretation are given in the form of maxims 8 (nyayas). The negative injunction is illustrated by the Kalanja nyaya or Kalanja maxim.
14. The Kalanja maxim (na kalanjam bhakshayet) states that `a general condemnatory text is to be understood not only as prohibiting an act, but also the tendency, including the intention and attempt to do it.' It is thus mandatory.
15. A plain reading of the proviso to Section 6 of the Land Acquisition Act shows that it is a general prohibition against the whole world and not against a particular person. Hence the Kalanja maxim of the Mimansa system will in our opinion apply to the proviso to Section 6.
16. Laughakshi Bhaskara, one of the great Mimansa writers, taking the prohibitory text 'one is not to eat Kalanja or fermented/stale food' (na kalanjam bhakshayet), explains the idiomatic force of the phrase (na bhakshayet). He explains that the suffix 'yat' means 'shall', and that the negative particle 'not' is to be taken as attached to the suffix 'yat' (shall), and not to the idea of Kalanja eating. For if it be taken as attached to the latter idea, then the sentence might mean 'you shall eat but not Kalanja'. In this case strictly there would be no prohibition. So he labours to demonstrate that the gist of the sentence is 'shall not' and therefore the object of it is to turn off from eating 9 Kalanja (fermented/stale food). This may appear to be making a hair splitting distinction, but it is of great importance from the Mimansa point of view because it indicates the mandatory nature of the negative injunction (nishedha). The explanation of a Nishedha Vidhi appears more clearly from Jaimini's Sutras on the Kalanja maxim.
The objector says :
In a case of prohibition, mentally you entertain the idea of the action prohibited; for you
have to discriminate between the prohibited act and the negation of that act.
The objector means to say 'what is the good of a prohibition when it invites the imagination to gloat on the action prohibited'. The author answers :
'When an act is enjoined by the Shastra, it is for the purpose of the good of a person;
if the good object be divorced from the meaning of the Shastra, then it becomes a
case of transgressing it.'
The meaning of this is: 'In a case of prohibition you must take it that not only is the particular external act prohibited, but the very intention of it is also prohibited.'
Roughly speaking, the principle laid down is this : 'In a case of prohibition one should abstain from the very idea of the act prohibited, and there ought to be no evasion of the Vidhi in any way.'
Thus, this class of Nishedha Vidhis is to be interpreted most comprehensively and as mandatory.
17. In view of the above discussion, it is evident that the proviso to Section 6 of the Land Acquisition Act is totally mandatory and bears no exceptions.
18. In fact, a Constitution bench decision of this Court in Padma Sundara Rao (Dead) and Others Vs. State of T.N. And Others (2002) 3 SCC 533 is clearly in support of the submission of the learned counsel for the appellants that the proviso to Section 6 is mandatory, and hence the Notification under Section 6 dated 30.10.2006 is time barred. In our opinion, when the language of the Statute is plain and clear then the literal rule of interpretation has to be applied and there is ordinarily no scope for consideration of equity, public interest or seeking the intention of the legislature. It is only when the language of the Statute is not clear or ambiguous or there is some conflict etc. or the plain language leads to some absurdity that one can depart from the literal rule of interpretation.
19. A perusal of the proviso to Section 6 shows that the language of the proviso is clear. Hence the literal rule of 11 interpretation must be applied to it. When there is a conflict between the law and equity it is the law which must prevail. As stated in the Latin Maxim 'Dura Lex Sed Lex' which means "the law is hard but it is the law".
20. Learned Attorney General appearing for the respondents submitted that the judgment of the High Court dated 20.1.2004 permitted the authorities to issue a second Section 6 Notification even beyond the time provided by the proviso to Section 6 of the Act. He has invited our intention to paragraphs 2 and 3 of the said judgment which reads:-
"2. Having gone through the record of the petition and the file which is made available to us by Mr. Patil, with respect to the acquisition of lands of the Petitioners, we are of the view that the Petitioners did not appear to have been afforded reasonable opportunity as is required under Section 5A of the Land Acquisition Act, 1894. No reasons are insisted upon injustification of this conclusion which we have arrived at as declaration under Section 6 issued concerning the lands of the Petitioner dated 29.8.2002 will have to be set aside and the same is hereby quashed and set aside. The Petitioner need inspection of the record from the office of the Land Acquisition Officer, Mr. Patil, A.G.P. 12 Assures that within one week from today, inspection will be offered to the Petitioners. Dr. Tulzapurkar states that the Petitioner will file their objections within two weeks thereafter.
3. All parties agree that hearing contemplated under Section 5A by the Special Land Acquisition Officer should be completed within two months thereafter as far as possible. Dr. Tulzapurkar makes a statement on instructions from the Petitioner that the objections with respect to the period within which Section 6 notification has to be issued from the date of Section 4 notification, will not be raised by the Petitioner if the Petitioners are finally aggrieved by the 5A report and subsequent declaration under Section 6. Needless to say that the Special Land Acquisition Officer should pass a reasoned Order when he considers the objections from the Petitioners. The entire proceeding will be based on Section 4 notice which has led to the present proceedings and that notice will continue to govern the acquisition of these lands."
21. In our opinion, there can be no estoppel against a Statute. Since the Statute is very clear, the period of limitation provided in Clause (ii) of the proviso to Section 6 of the Act has to be followed, and concessions of the counsel can have no effect. As already stated above, the 13 proviso is mandatory in nature, and must operate with its full rigour vide Ashok Kumar Vs. State of Haryana (2007) 3SCC 470 (para 17).
22. Mr. Shekhar Naphade, learned senior counsel appearing for the State of Maharashtra then submitted that the judgment dated 20.1.2004 in the earlier writ petition No. 9248/2003 is res judicata and since the said judgment was not challenged before this Court, it had become final. He submitted that in the aforesaid judgment it had been clearly stated by the learned counsel for the petitioners on instructions from the petitioners that the objection with respect to the limitation period within which the second Section 6 Notification will be issued will not be raised by the petitioners if the petitioners are finally aggrieved by the Section 5A report and subsequent declaration under Section 6 of the Act. Accordingly, he submitted that now no objection can be taken in the present proceedings urging the bar of limitation provided in clause (ii) to the proviso to Section 6 of the Act.
23. In this connection, we wish to state that no statement or concession of a learned counsel can override a mandatory statutory provision.
24. Moreover, the observations in para 3 of the judgment 14 dated 20.1.2004 have to be regarded as per incuriam. In this connection we may refer to the decision of a three Judge Bench of this Court in the case of Babu Parasu Kaikadi (Dead) by Lrs. Vs. Babu (Dead) through Lrs. (2004) 1 SCC 681 wherein in paras 15 to 17 it has been observed as under :- "15. In Halsbury's Laws of Englad, 4th Edn., Vol. 26 it is stated :
"A decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force."
16. In State of U.P. V. Synthetics and Chemicals Ltd. This Court observed : (SCC pp. 162-63, para 40) "40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.) Same has been 15 accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law."
17. In Govt. of A.P. v. B. Satyanarayana Rao it has been held as follows :
(SCC p. 264, para 8)
"The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue." It may be seen from the judgment dated 20.1.2004 of the High Court that in the aforesaid judgment no specific reference has been made to the limitation period prescribed in clause (ii) to proviso to Section 6 of the Act, though no doubt Section 6 has been generally referred to. Hence, in our opinion, the observations in paragraph 3 of the aforesaid judgment dated 20.1.2004 have to be construed as per incuriam.
25. In view of the aforesaid discussion, we allow this appeal and set aside the impugned judgment and order dated 21.01.2008. However, it is open to the respondent-State of Maharashtra to issue a fresh Notification under Section 4 of the Act and take proceedings in accordance with law thereafter.
Appeal allowed. No order as to the costs.
.....................J. (MARKANDEY KATJU)
.....................J. (ASOK KUMAR GANGULY)
NEW DELHI; AUGUST 18, 2009