LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

"….Then was born the Law (Dharma), the doer of good. By the law the weak could control the strong." Brihadaranyakopanishad 

“…….When there is a conflict between law and equity; it is the law which is to prevail. Equity can only supplement the law when there is a gap in it, but it cannot supplant the law….”, 

Abstract : It may be stated that justice has been deviated in a very recent judgment of the Apex Court in Nandlal  case. The Apex Court passed a remark that ‘Truth must triumph’-is the hallmark of justice.’ The Court was anxious to render justice to an undeserving man deviating from the law. The Court has obviously, overruled its precedents which are binding on it. The Court had also ignored to invoke purposive rule of interpretation. The Court must have restrained itself from the deviation as it was done by the Naaz Foundation case.

The Court must have laudably and purposively deviated to render justice to deserving woman and child as was done in Badshah v. Sou. Urmila Badshah Godse  case. In Badshah case the Apex court has adopted purposive and liberal rule of construction in awarding maintenance under Section 125 of The Code of Criminal Procedure, 1973 (Crpc) without insisting on strict proof of marriage. It was reiterated that strict proof of marriage was not a condition precedent to grant maintenance under Section 125 crpc.

‘Satyam Sarve Pratisthtam!’ is the proverbial saying of our ancient and cultural significance. But, there are certain provisions of law such as section 112 of the Indian Evidence Act wantonly drafted by the eminent jurist like Sir James Stephen to render protective justice to vulnerable persons like women and child. The provision reads in effect that during the continuance of a valid marriage, if a child is born the child is presumed legitimate. The presumption extends to 280 days beyond the nullification of marriage. The provision disallows bastardization of child. The strong presumption under Section 112 of the Indian Evidence Act has been deviated by the Supreme Court in Nandlal Wasudeo Badwaik’s Case. The Apex Court has obviously, ignored to follow the law and deviated from the tendency of liberal and purposive rule of construction as has aptly been adopted in Badshah case.

The facts of the case in Nandlal are that the petitioner is the husband of respondent no. 1, the wife and the daughter, respondent no. 2. The marriage between them was solemnized on 30th of June, 1990 at Chandrapur. The wife filed an application for maintenance under Section 125 of the Code of Criminal Procedure (the Code) which was dismissed by the Magistrate on 10th December, 1993. Thereafter, a fresh proceeding was initiated under Section 125 of the Code claiming maintenance for herself and her daughter. The wife inter alia, alleged that she started living with her husband from 20th of June, 1996 and stayed with him for about two years and during that period got pregnant. She was sent for delivery at her parents’ place where she gave birth to a girl child, the respondent no. 2. Petitioner-husband resisted the claim and alleged that the assertion of the wife that she stayed with him since 20th of June, 1996 was false. He denied that respondent no. 2 as his daughter. After 1991, according to the husband, he had no physical relationship with his wife. The learned Magistrate accepted the plea of the wife and granted maintenance at the rate of Rs.900/- per month to the wife and at the rate of Rs.500/- per month to the daughter. The challenge to the said order in revision had failed so also a petition under Section 482 of the

With due respects to the Hon’ble Court it is submitted that the Court had discussed about ‘bastardising’ of innocent girl child and in fact obviously did for no fault on her part -which is avoidable! 

To read the full article: Click Here

"Loved reading this piece by Dr. Mohan B Rao ?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Tags :

Category Others, Other Articles by - Dr. Mohan B Rao