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Pilgrims' untimely end
The chosen ones
Cash for rape |
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Independence Day blues
Of red lights and pomp
Opening prenuptial window for divorce
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Pilgrims' untimely end THE death of a number of people, mostly Kanwarias, in a train accident at Dhamara Ghat in Khagaria district in Bihar has come as a shock. These people were hit by the Rajyarani Express. Even as the country mourns the loss of so many lives, the blame game has already started between the state government and the Railways. This is most unseemly. It is ultimately the duty of the Indian Railways to ensure the safety not only of the passengers travelling in the trains, but also the general public which is using the facilities. Governments of the states through which the railway tracks run also must share the responsibility of handling crowds in or near railway properties, including railway stations. There is no doubt that religious occasions create situations where very large number of people congregate at specific locations. Proper coordination between the state authorities and the Railways is imperative. As regards this specific accident, a large congregation of pilgrims was expected at the Katayani temple. Only a failure at multiple levels allows such a situation to develop into a tragedy. It is a sad reflection on the state of affairs in the nation that the authorities concerned have not learnt much from such incidents in the past. In February, a stampede at Allahabad railway station led to the death of 36 Kumbh Mela pilgrims. The Commission of Railway Safety's data reflects an average of 24 serious train accidents in a year. This leads to the death of 130 passengers annually. Then there are other accidents which involve people who are not passengers and their deaths are many more, an estimated 15,000. This is a shocking figure. Many of these deaths are at unmanned crossings and on open train tracks. Sometimes, they happen when trains plough into people standing on the tracks, like it apparently happened in Bihar. While it is true that people should not have been on the track, the authorities concerned and the driver should have taken prompt action to avoid the tragedy. The matter should now be thoroughly investigated with the objective of learning some lessons.
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The chosen ones WHY would a coalition firmly in power try and please people with dubious profiles, knowing full well that the taint could rub off on it too? The answer could be hubris or, worse, the entire edifice is built on a foundation of benefits for personal loyalty. Joginder Pal Jain, elected Congress MLA from Moga, was encouraged to switch to the SAD apparently for no better reason than to hit back at the Congress; he had defeated a prestigious Akali candidate. The Congress first and then the SAD gave the ticket to Jain because he was a 'sure' candidate. His antecedents were well known to both parties at the time. The cases against him were debated during the two poll campaigns in quick succession. On Monday the Punjab Advocate-General told the Punjab and Haryana High Court that Jain had resigned as Chairman of the State Warehousing Corporation. It had come to the court's notice that Jain was convicted of passport forgery 20 years ago. By way of justifying his appointment, the AG told the court the Chief Minister had not applied his mind to Jain's full antecedents while appointing him last year. Perhaps the overbearing motivation at the time was securing the loyalty of a turncoat. Before that, in the scuttled attempt to appoint lawyer Harish Rai Dhanda Chairman of the Punjab Public Service Commission it was perhaps reward for loyalty. The High Court had then questioned Dhanda's qualifications and experience for the post. Pointing a finger at Jain's appointment, the court said it also was raising the larger issue of people's suitability for a particular post. This is a point worth going into deeper. There are several positions of head of boards and corporations that have been given to people who have neither been elected nor possess any relevant qualification. Jeopardising a state's governance (and billing the state for it!) to strengthen a feudal hold over its polity cannot be allowed. The government has been given two weeks to decide on the resignation tendered. It has only one choice - unless, of course, it wants to repeat a mistake.
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Cash for rape THE Omar Abdullah government has brought out a compensation chart to classify rape victims and loss of life into different categories. By doing so, it has succeeded in achieving the impossible: quantified the extent of loss of dignity. The revised compensation under the scheme offers Rs 2 lakh for rape and for a rape victim who happens to be a minor or rape in police custody, the victim will be paid Rs 3 lakh. Rape is a complex issue. Paying cash compensation in the Indian context makes the police lose interest in the case. Also, there are massive gaps in the documentation of out-of-court settlements, which are aplenty. In the last six decades the understanding to deal with this crime thus has remained limited to such gimmicks. At times judicial response to such cases has remained bizarre - 'restoring a woman's honour' by marrying her to her rapist. A country of compensation that we are - come earthquakes, train accidents, or floods, our government is quick to announce 'packages' to victims or the next of kin. It shifts the attention temporarily from the volatility of the issue, and gradually things fall back to the usual callousness. The question of monetary compensation for rape has been a controversial one ever since the Supreme Court ordered the National Commission for Women (NCW) to evolve a scheme for compensation in 1994. In the order, it also advised the setting up of a Criminal Injuries Compensation Board (CICB) to disburse the funds. The NCW put in a quick draft but it took 10 years for it to become the 'Scheme for Relief and Rehabilitation of Victims of Rape 2005' and another six years before the wheels of action started turning. As usual, there has been a serious dearth of organised research on the results of paying monetary compensation to the victims of rape in other states, where cash compensation was politicised. Some private studies conducted by scholars like Pratiksha Baxi have shown that compensation remains a futile exercise if the guilty are not punished.
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My dear friend, clear your mind of can't. Samuel Johnson
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Independence Day blues
Another
Independence Day has passed with acrimony rather than statesmanship marking the occasion. This was a time for the nation to stand together and see how best to make that tryst with destiny inherent in the promise of the Constitution of which Nehru spoke about so movingly 66 years ago. Instead we saw fractious politics, mean-minded polemics, chauvinism, communal rioting and an unrestrained war of words with Pakistan. Sections of the media joined in trivialising the occasion. The Prime Minister's address was pedestrian in delivery and content but dignified. He talked of renewed policy initiatives on the economic front that he said would bring about a turnaround before too long but there are worrying signs of returning to regulation and controls through an administrative fiat. The President was sharper in his message to Islamabad in stating that there are limits to patience and that Pakistan must deliver on repeated promises on preventing its soil from being used for cross-border terrorism and bringing those responsible for 26/11 to justice. Nevertheless, the preceding parliamentary resolutions on both sides of the border on the LOC incidents and their impact on Indo-Pakistan relations without calm discussion and analysis were rituals that served little purpose other than as citations for the record. This exercise was, however, somewhat redeemed by the more constructive Independence Day messages exchanged between the two prime ministers. Nawaz Sharif is treading a delicate path and needs India's assistance in holding course amidst the backdrop of military-mullah pressures. There are democratic and secular elements in Pakistan whose cause is our cause. To say this is not to surrender to bullying tactics or blackmail but to hold fast to our own founding values and aspirations and retain the moral high ground. Elements in Pakistan are playing spoiler but India should not bite the bait. The weekend arrest by the Delhi police of Abdul KarimTunda , a high-ranking LeT/jihadi operative with a Pakistani passport issued to him last January provides further evidence of this and is something that should be vigorously pursued diplomatically . Meanwhile, defence communications remain in a shambles. Last weekend the papers reported differing versions of what is supposedly happening in the Kargil-Drass sector - Pakistan violations, or none, according to a defence spokesman. When will the government have the wit and wisdom to remedy this gross national security lacuna? Narendra Modi saw in Independence Day an opportunity to make Dr Manmohan Singh blink. But excepting those who enjoy a circus, the brash ploy to stage a vituperative mock party-political debate between a sitting Prime Minister and an impatient aspirant to that office on a solemn national occasion failed and clearly left some leading elements in the BJP uncomfortable. Independence Day was preceded by another round of parliamentary paralysis on sundry issues, for which the Congress must take equal responsibility with the BJP and others. An anguished Rajya Sabha Chairman lamented that "every single rule in the book, every single (canon of) etiquette is being violated" and if Honourable Members wished the House to become "a federation of anarchists", so be it. That was an appropriate rebuke and it is surprising that the Leader of the Opposition, Arun Jaitley, objected just as other boisterous members had the previous week objected to being named and shamed in the parliamentary bulletin for disrupting the business of the House. The conduct of MPs and MLAs across the political spectrum is increasingly being held to ridicule with MPs and MLAs seeking to protect the "electoral rights" of convicted criminal members of their fraternity. What is the message being sent out? That thugs and gangsters should not only be allowed to contest but will be re-nominated by their parties because they provide the (black) money and muscle not only to get themselves but also other party candidates elected! And once elected, they partner all manner of mafia elements to loot the country. The unfolding of the Nagpal and Khemka cases shows the extent to which the rot has set in. A Congress MP from Haryana, Rao Inderjit Singh, has indirectly named Robert Vadra among those who need to be investigated on unanswered charges of illicit land-grab in Gurgaon. The Haryana Government has assiduously defended Vadra, who remains strangely coy in his own defence. This stonewalling is wholly unconvincing. Vadra may be innocent but let his name be cleared in the manner expected in the case of any citizen. The Prime Minister expressed concern in his August 15 address over the growing incidence of communal and caste violence and intolerance in the country. He named the BJP-RSS for its role in the recent riots in Kishtwar. There have been other communal flare-ups between Sikhs and Dalits and incidents targeting Dalits. In Madhya Pradesh, efforts at saffronisation of education and targeting Christians have been reported. In Karnataka, two Muslim youths celebrating Eid with a couple of Hindu girls were threatened for such innocent socialising by right-wing Hindu hoodlums, while in Ahmedabad VHP cadres vandalised an art gallery exhibiting works of Pakistani artists "while Pakistan is beheading our soldiers on the LOC". The BJP's rightward electoral stance under Modi, with RSS inspiration, is polarising the population. This is a dangerous trend. No brand of communalism should be given any quarter. In this situation, the Minorities Commission has most unwisely asked the Archaeological Survey to survey closed mosques that are protected monuments in order to certify their condition and to recommend whether any of them should be opened for namaz as requested by local Muslim communities, ostensibly for lack of worship sites. To open such closed mosques in the ASI's keeping could open a can of worms and trigger an endless and wholly avoidable controversy. Should the Kailash Temple at Ellora, the Sun Temple in Konark and similar archaeological treasures be thrown open to worship on the basis of rival claims? Similar demands would certainly follow not on grounds of piety but to exploit communal, vote-bank politics. There is, however, merit in the government's decision to appoint a committee to review progress on the recommendations of the Sachar Committee on the Muslims' condition. Available evidence shows that Muslim employment in the government and the public sector has declined. This is a sad reflection on the promise of fraternity, dignity and equal opportunity written into the Constitution. The government has also appointed a committee to look at the socio-economic condition of tribal India. This is good. But unless this body enquires into the implementation (or even relevance today, as some would argue) of the Fifth Schedule or its non-implementation as is the case, and also review the working of the Sixth Schedule, its findings may be of limited value. There is currently complete confusion about the status and role of Governors and Tribal Advisory Councils under the Fifth Schedule with different constituents pulling in different directions on the basis of their own interpretation of what this mandates. The Tribal Affairs Minister's letters to Governors containing constitutional directives have been simply ignored, creating a most anomalous situation that calls for a prompt redress rather than a studied indifference. A draft tribal policy is also on the anvil; but until the Fifth Schedule matter is resolved, this too would
flounder.
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Of red lights and pomp IT is unfortunate, but true. In our country social status is often determined by visible symbols of authority. Thus the beacon displayed atop a vehicle proclaims loudly that the occupant is entitled to special respect. The various dignitaries blessed with the emblem constitute a complex hierarchy of VIPs. At the very top are the President of India, Cabinet ministers of the Union Government, Judges of the Supreme Court and High Courts and Governors. This category can flash the distinguishing red light in any part of India. Poor ministers of state governments have to content themselves by merely displaying the red symbol, without the authority to flash it, except within the limits of their own states. Humbler still are persons holding inconsequential posts of Minister of State, Lieutenant General and equivalent in the armed forces, and Chief Secretary of a State who are not permitted to flash the red light at all, thereby diminishing their public image. District judges, Collectors and Police Superintendents stand the lowest on this splendid ladder of opulence, for they can only flaunt, but not flash, a beacon of amber, a hue that pales before the grandiose ruby red. About 20 years ago, some police constables had the temerity to demand proof of authority of some persons, who happened to be judges, to display red lights on their cars. When the honourable High Court of the state concerned discovered that the Central Motor Vehicle Rules did not authorise the use of red lights, it decreed that red lights were essential to uphold the dignity of the persons occupying the exalted positions. Accordingly the state government dutifully notified a much larger list of entitled persons, cleverly adding many personages that it considered deserving of the honour. Lo and behold, a rat race was on! The Central and state governments, equally anxious to herald the signs of might and right, expanded the list of entitled persons to massive levels. Included were legislators, Chairpersons of public enterprises, unsuccessful politicians (whose status was declared equivalent to other beneficiaries) and many shades of officials. The huge proliferation of persons declared important under the Motor Vehicle Rules resulted in heavy traffic congestion. Any VIP worth his salt must necessarily be accompanied by security guards. Inevitably, the beacon-adorned vehicles began to clash, and to stumble over one another. The traffic enforcement agency was baffled at the plethora of hundreds of automobiles with distinguishing hallmarks of authority, all commanding the right to disobey the rules of the road. In the state of Punjab, a sinister joke gained currency. The distance between two towns came to be measured, not in kilometres, but in the number of beacons that the traveller was likely to encounter en route. The darkest impact was on emergency services, as ambulances and police vehicles, with authorised blue flashing beacons, and blaring sirens to boot, were denied the right of way by red-light bearers. The tragi-comic drama is, hopefully, now reaching a happy denoument. The Supreme Court of India has arraigned the governments at the Centre and in the states, and directed that the use of beacons vehicles should be drastically restricted. In currently ongoing hearings, the court has remarked, "Status is enhanced not by travelling in red-beacon vehicles but by work done by them (the people)." The court could well have perceived an altogether different common connotation of the term 'red light'. Districts bearing that description are not considered the most wholesome places to
visit.
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Opening prenuptial window for divorce The sum of Rs 45 lakh paid in full and final settlement to the wife was towards all her financial claims. Both parties, living separately since 2009, agreed that they shall have nothing to do with each other's lives and will not undergo any divorce proceedings. The wife would also not claim restitution of conjugal rights or rights of residence in the household. However, in the event of remarriage of the husband, the agreement shall stand terminated and the wife would be entitled to revive her claim for maintenance or alimony for the
present and future, since the sum of Rs 45 lakh shall not be considered
as an amount towards dissolution of marriage and payment of permanent alimony. The court accepting the deed and the undertakings of the parties, disposed of the matter and permitted the parties to file the same before all courts where litigation was pending with liberty to invoke the provisions of the Contempt of Courts Act, 1971, upon breach if any.
Position of law Regardless, if there be any prenuptial settlement, it would be tested like any other contract for its validity. Essentially, it should not be opposed to public policy, must not violate principles of natural justice, shall not be fraudulent, and must recognise rights of both the parties as also should be executed freely, voluntarily, without coercion and upon full disclosure of all relevant facts. As, traditionally, breakups are not
discussed before marriage, there seems to be no reported decision testing the validity of a prenuptial termination agreement.
Changing social milieu In a fast evolving society of urban set-ups and escalating cross-border matrimonial unions, divorces settled through mutual consent petitions to avoid ugly, protracted and harmful litigations are being increasingly resorted to through the process of alternative dispute resolution and mediation centres now available in all courts in India. Invoking of punitive criminal proceedings against immediate family members and parents of spouses upon the death of a matrimonial relationship often results in the entire family being implicated on trumped up charges as retribution to settle scores. Easy outlets to do so under the Indian Penal Code and the Domestic Violence Act often result in harassment to the parties, even though they may have no apparent role attributed to them. Likewise, adequate protection and financial support to an abandoned spouse needs to be secured in advance to avoid flights of fancy, leaving a hapless partner with nothing to survive on, if a marriage goes sour. Securing protection for children from inter-parental child removal is another dimension of breaking marriages when abduction of children is resorted to by parents
to settle egos. Such facets of life of new generations makes the mind ponder to evolve solutions which as of now do not exist in the statute book but are now necessitated with the advent of time.
Existing law As of now, mutual consent is the most resorted to method for divorce if parties are principally in agreement on the terms and conditions of termination of marriage, which in itself reflects acceptable breakdown of marriage. However, Parliament is looking at defining and bringing in irretrievable breakdown of marriage as an additional ground for divorce, through the process of legislation may be time consuming. Though irretrievable breakdown of marriage is not recognised as a ground of divorce under existing matrimonial laws, the apex court, in exercise of its vast powers under Article 142 of the Constitution, may pass such decree or make such order as it is necessary for doing complete justice in any cause or matter pending before it.
New perspective The judgment of July 15 opens a new window. It is in this breath that the need for prenuptial agreements needs a fresh thought with a new outlook. It comes at a time when surrogacy agreements are entered upon freely and have become acceptable in society. Thus, if the concept of a premarital settlement finds judicial acceptance and ultimate legislative sanction, matrimonial terms can be settled in advance optionally and alternatively to those who wish to do so. By no means would this be mandatory to offend those who do not wish to think of marital breakups before marriage by considering it as inauspicious or uneventful. Without disturbing sentiments of traditional mindsets, the thought process can possibly relax drawing up of pre-marriage agreements where double-income independent spouses are comfortable in such mutual understandings. Protection of spouses and avoidance of inter-parental child removal are immediate benefits of it. Beneficiaries would include a large segment of the non-resident Indian (NRI) population who either
marry foreign spouses or relocate to overseas jurisdictions and need written understandings for mutual protection and easy implementation by courts in alien jurisdictions. The clash of parallel matrimonial
disputes in Indian and foreign courts can be avoided to a large extent by following this system. The law does not forbid spouses to agree as to how they should live and conduct themselves as husband and wife, when they would consummate their marriage and how they would conduct themselves to each other. It is equally important that due respect should be given for adult autonomy, subject to proper safeguards and which could be tested by judicial discretion, when the need arises. The fact of the matter remains that any matrimonial agreement between a husband and a wife should not be illegal, immoral or opposed to any public policy. The overhanging safeguard of the premarital settlement being adopted as a fair, free and just settlement will always be omnipotent. By no means or standard, it should be used as an instrument of oppression to take away rights of spouses which are guaranteed under existing laws meant to secure relief. The need for evolving the jurisprudence to develop a positive thought process for creating such friendly methods would require an educative process to familiarise the advantages of such a concept while also clearly identifying its negative traits, if any. The chaff should be separated from the grain to enjoy the dough which has to be kneaded and blended nicely over a long period of time to be consumed to become acceptable as a welcome change. The traditional and sacramental notion of marriage must be gently flavoured with a commercially sounding phrase of prenuptial
agreements, which is not to be viewed as an announcement of a breakup of a marriage, even before it is solemnised. The path has to be tread carefully and slowly while administering the change. Changing times require
that amicable matrimonial settlements be arrived at by dispute resolution which can be aided and assisted if the parameters are penned down in advance to benefit the parties concerned. The writer is a practising lawyer at the Punjab and Haryana High Court.
How prenuptial pacts may help
Time is of essence In a prolonged messy litigation, the court may bury the hatchet in the facts and circumstances of a case under its inherent jurisdiction. The court in BS Joshi Vs. State of Haryana (2003) 4 Supreme Court Cases 675 and GV Rao Vs. LHV Prasad (2000) 3 Supreme Court Cases 693, has very eloquently emphasised the need to encourage court settlements in matrimonial disputes. It concluded "
that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their 'young' days in chasing their 'cases' in different courts." Therefore, there is far greater emphasis in the Indian context to settle post-marriage matrimonial disputes in the event of divorce oriented litigation, rather than focusing on prenuptial agreements. Law looks at the cure and not the remedy to prevent the problems.
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IN a decision rendered on July 15, the Supreme Court, accepting a tripartite settlement deed executed between a woman, her husband and his mother through mediation, permitted parties to part ways upon a one-time payment of Rs 45 lakh to the wife with the condition that both would not seek divorce on any ground. The couple married for 30 years agreed to withdraw all their pending litigation and the wife agreed not to cause any disturbance or invade the privacy of her husband and his 83-year-old mother living in their household property. 
Under the Hindu family laws, where marriage is considered a sacrament and not a contract, prenuptial agreements do not find any recognition under existing matrimonial legislation or under other civil codified laws. Hence, premarital settlements between Hindus are alien to the present legal system.