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(Guest)

Which Article of COI used in Civil cases ?

Ld. Members,

Background Brief to my question: Maint. / Custody / Alimony / Divorce etc. are largely granted in favor of women using Art. 15 COI (intent and object) I mean to say here. 


Que.:
I like to understand on "inference" point of view usage of which Article from COI in civil cases unlike in Criminal Cases Art. 21 is mostly cited further Courts favor women using the justification of Art. 15 COI so what could be the Art. from COI which could be used to demolish this thinking in a civil case?


I am not sure if I express well my above question, the bottom line is that I am trying to find similar to Art. 21 COI which could be used as counter in civil cases of family law nature by husband side to draw inference of a Judge that look Art. such and such also there which says such and such thus the inference used by female is not valid so to speak in given reasoning and thus let us examine the Article such and such in the backdrop of this civil appeal before you !


Hope above long justification of what I am trying to find helps with a answer from ld. members at the earliest please.

Rgds.

 



Learning

 12 Replies

N.K.Assumi (Advocate)     06 August 2010

The whole philosophy of the Consitution is dircted towards equality and reasonableness and against arbitrariness: It was Justice Bhagwati, who speaking for the majority in the case as reported in AIR 1974 SC 555 declared that anything arbitary is antithetic to equality and equality and arbitrariness being sworn enemies, anything arbitrary is also unequal both according to political logic and constitutional law and is, therefore, violative of Article 14. And relying thereof and developing the theme further the eloquent granduer, Justice Bhagwati has declared in Maneka Gandhi that the principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence. And now through a wave of decision following Maneka Gandhi Article 14 has been enthroned with spectacular activist magnitude commanding all laws to be reasonable on pain of invalidation.

Arup (UNEMPLOYED)     06 August 2010

THERE IS A CONTROVERSY//CONTRADICTION IN ART 15 (1) & 15(3).

15(3) NOT ONLY CONTRADICT 15(1) BUT ALSO OPPOSE THE ART 14.

THAT MEANS, THE ART 15(3) OPPOSES THE PRINCIPALS OF BOTH THE TWO BASIC FUNDAMENTAL RIGHTS, THE ART 15 (1) & 14. THIS 15(3), INFRINGE  BOTH THE ARTS, CREATING OBSTACLES TO FREE MOVEMENT OF BOTH ARTS. THEREFORE ART 15(3) SHOULD BE REVIEWED AND CLARIFIED AGAIN BY THE PARLIAMENT. SC CAN SEND THIS REQUEST THROUGH LAW COMMISSION VIA GOVT. OF INDIA, TO PARLIAMENT.

THE BASE OF THE PROBLEM YOU MENTIONED ARE RIGHT AND CREATED BY THE ABOVE ART 15 (3).

Arup (UNEMPLOYED)     06 August 2010

CPC REGULATES ALL CIVIL CASES.

COI PROVIDES THE BASE OF ALL  ACTS.


(Guest)

Thank you both

So where it leads to now ?

Equity before law I understood and I also understood Bar of Art. 15 (3) but then which Art covers Civil nature of above types of suits ? So it is something similar to printers devil in Art. 14 vs. Art 15 (3) !

Arup (UNEMPLOYED)     06 August 2010

JUDGEMENTS OF ART 21 MAY HELP YOU.

REFUSING DIVORCE TO ONE, IS DESTROY OF ONE'S FUNDAMENTAL RIGHT U/A 21, COI.


(Guest)

Exactly

Now Arup ji here is a shell now you suggest the right gun powder

"Which reasoning of SC among so many on Art. 21 COI on various topics on earth will stand good in retrospective / propsective operation of DV The Act :-)

I just gave you "extra work" as I found, you are good at reproducing complete citations here in various posts so guide me with name of parties and date of decision that is all I need to understand this common cause issue.

 

Arup (UNEMPLOYED)     06 August 2010

it is something similar to

Art. 14 + 15(1) ........    Petitioner.

vs.

Art 15 (3) ...........       Respondent.

Arup (UNEMPLOYED)     06 August 2010

i lag on citations.

it is not extra work but pleasure to me.


(Guest)

ha ha
 

exactly

so where to fit in Art. 21 is the big question and giving me mental blocks

[lot of extra work] Art 15 (3) ...........       Respondent [making me run pillers to post on it ha ha]

N.K.Assumi (Advocate)     06 August 2010

I remember that it was a learned Delhi High Ciurt Judge who once said that the introductions of Constitutional law in the home is is most inappropriate as it is lke a bull in china shop and will prove to be a ruthless destroyer of the marriage institutions and all that it stands for. He went on to add that in the privacy of family and the married life neither Article 21 nor Article 14 has any place. Now readers do you agree?

Arup (UNEMPLOYED)     09 August 2010

mr goodboy,

an act can be struck down by hc/sc under the provisions of art 12 &13.

but fundamental right like art 15(3) can not be.

Arup (UNEMPLOYED)     09 August 2010

only the perliament has the right to do so by amending constitution.


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