In this blog, we shall explore the concept of Hiba under Muslim law, a practice that dates back to 600 A.D. Governed by Muslim personal law and exempted from the Transfer of Property Act, 1882, Hiba holds its own legal validity. This blog explores the essentials of Hiba, its constitutional support, modes of transfer, kinds of gifts, the validity of Muslim gifts without registration, and revocation of Hiba. Additionally, it examines the Supreme Court’s rulings on the validity of oral and written gifts, emphasizing the significance of fulfilling essential requirements over formalities in Muslim law.

Definition of Hiba

Hiba, within the context of Muslim law, refers to the voluntary and unconditional transfer of property or substance from one living person, known as the donor, to another person, known as the donee, without any consideration. This transfer, known as Hiba, establishes the donee as the rightful owner of the gifted property. A written document that represents a gift made under Muslim law is known as Hibanama.

The Constitutionality of Hiba

Hiba, the act of gift-giving under Muslim law, finds constitutional support in India through Section 129 of the Transfer of Property Act, 1882. This provision recognizes the unique nature of Hiba and exempts it from the Act’s provisions. By including Hiba in the Shariat Act, 1937, governed by Muslim personal law, the constitutionality of this exemption is upheld. It upholds religious freedom and respects the significance of religious practices in individuals’ personal lives. This legal framework allows Muslims in India to engage in Hiba without interference from general property laws, creating space for religious diversity and accommodating their beliefs.

Essentials of Hiba

Hiba necessitates three essential elements:

• Declaration by the donor
• Acceptance by the donee
• Declaration of Possession

The donor must clearly express their intention to give the property, which can be done orally or in writing. The donee must accept the gift, either explicitly or implicitly. The donor then needs to transfer the possession of the gifted property to the donee, either physically or symbolically.

Modes of Transfer

• Actual delivery: It involves the physical transfer of the gifted property from the donor to the donee. It signifies a tangible act of giving, where the property is handed over or physically placed in the possession of the recipient. This mode of delivery is typically employed when the property being gifted is tangible in nature, such as land, cash, or movable assets.
• Constructive delivery: It is a symbolic form of transferring possession. It involves actions or gestures that symbolize the intention to gift the property, rather than a physical transfer. This mode of delivery is commonly used when the property being gifted is immovable, such as a house or an estate. Examples of constructive delivery include handing over the keys to the property or transferring the relevant documents that signify ownership.

Kinds of Gift

In the fascinating realm of Hiba, the concept of gift-giving takes on various forms, each with its own distinct characteristics. Let’s embark on a journey to explore the different kinds of Hiba under Muslim law.

First, we have the Hiba-il-iwaz, where a gift is bestowed upon the donee with an accompanying consideration. This kind of Hiba entails a mutual exchange, where the donor offers the gift in return for something of value from the donee. It’s a delightful dance of reciprocity that adds a touch of intrigue to the act of giving.

Next, we encounter the Hiba-ba-Shart-ul-Iwaz, a gift that comes with a condition attached. Here, the donor imparts the property to the donee with specific terms or requirements. It’s like a beautifully wrapped present with a hidden surprise, unveiling its true essence only when the conditions are met.

Disposition of property through gift

A Muslim can gift their entire property during their lifetime, subject to certain restrictions. While the entire property can be gifted, only one-third of the property can be bequeathed through a will, with the remaining two-thirds reserved for legal heirs. This ensures that the rights of the heirs are protected.

Gifts under Muslim law can be made to anyone, including strangers, without the need to provide a share to the legal heirs. This flexibility allows individuals to distribute their property according to their wishes while adhering to the principles of Islamic law.

Validity of Muslim Gift without Registration

In the realm of Muslim law, the validity of a gift of immovable property does not hinge upon written documentation or registration. Contrary to Section 123 of the Transfer of Property Act, 1882, which necessitates written and registered instruments, Muslim gifts operate under a different legal framework. Section 129 of the Transfer of Property Act clearly exempts Muslim gifts from the Act’s provisions. The landmark judgment of Hafeeza Bibi v. Shaikh Farid (2011) reaffirmed this principle, emphasizing that oral Muslim gifts hold their own legal validity, independent of registration requirements.

Revocation of Hiba

As stated above, the essential elements of a gift highlight the pivotal role played by the delivery of possession. Before this pivotal act takes place, all gifts retain the potential for revocation. The donor possesses the authority to revoke a gift at any time, simply through a declaration of intent. However, once the delivery of possession occurs, the gift enters a state of permanence, rendering revocation by mere declaration ineffectual.

Thus, while the donor holds the power to revoke a gift prior to the delivery of possession, once this threshold is crossed, the gift assumes an irrevocable nature. It exemplifies the delicate balance between freedom of choice and the irreversible consequences of transferring ownership through the art of gifting.

However, it is important to note that under certain circumstances, a Hiba can be revoked. There are two conditions in which revocation is permissible:

• By the order of the court
• With the consent of donee

Ruling of Supreme Court

In the case of Hafeeza Bibi and Ors. v. Farid (Dead) by L.Rs. and Ors. (AIR 2011 SC 1695), the Supreme Court emphasized that the form of a gift under Mohammadan Law is immaterial. Whether it is made orally or reduced to writing, the essential requisites of a valid gift must be fulfilled. The court dismissed the notion that a written document automatically transforms the gift into a formal instrument, stating that the nature and character of the gift remain unchanged. The judgment clarified that a gift written on a plain piece of paper is valid if it satisfies all essential requirements, irrespective of registration. This ruling reinforces the principle that the focus should be on fulfilling the necessary elements rather than the form of the gift in Mohammadan Law.

Conclusion

In conclusion, Hiba, the act of gift-giving under Muslim law, holds significant importance in the realm of property transfer. It allows for the voluntary and unconditional transfer of property from a donor to a donee. The essentials of Hiba, including declaration, acceptance, and delivery of possession, establish the validity of the gift. With the constitutionality of Hiba supported by Indian law, Muslims can engage in gift-giving freely, guided by their religious principles.

On-Call Legal Consultation

No doubt, evidence can be produced before Hon’ble Court in both oral and documentary form.  But sometimes, situations may arise where evidence stored in any electronic media is necessary to be produced in order to establish guilt or defence in any case. Therefore, for production of the same, certificate of its authenticity is required to be accompanied with. So, now the question comes whether the certificate provided under Section 65B(4) of Indian Evidence Act, 1872 along with electronic evidence is mandatory or not. Well, this question has been a subject of consideration in various cases wherein divergent views have been taken by Hon’ble Courts in respect to this matter of issue.

SECTION 65B OF INDIAN EVIDENCE AT, 1872

Section 65A and Section 65B of Indian Evidence Act, 1872 were inserted by way of amendment of the Indian Evidence Act in the year 2000. Section 65A of the Indian Evidence Act,1872 states that the contents of electronic evidence may be proved in accordance with the provisions laid down in Section 65B. Therefore, only if the conditions specified under Section 65B of Indian Evidence Act are satisfied, the electronic evidence can be admitted by the Hon’ble Courts.

According to Section 2(1)(t) of the Information Technology Act, 2000, “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer -generated micro fiche.

Section 65B of the Evidence Act, 1872 which deals with the admissibility of electronic evidence was introduced keeping concerns about the authenticity of electronic records while ensuring the overall adaptability to the use of electronic records in courtrooms.

Section 65B (1) of the Act states that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer which is also referred to as the computer output shall be deemed to be also a document and shall be admissible as evidence in proceedings without further proof of the original if conditions stated under Section 65B (4) are satisfied.

Section 65B (2) of the Act provides the following conditions that must be satisfied for the information to be referred as computer output:

1. At the time of creation of electronic records, the computer that produced it must have been used regularly to store or process information.
2. The information contained in the electronic record must have been regularly fed into the computer.
3. The computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
4. The information contained in the electronic record must be a reproduction of the information fed into the computer.

Section 65B(3) states that provision of Section 65b(2) still applies even if computer output is taken out by not a single computer but by different combinations of computers.

Section 65B(4) is an important provision which says that for production of any electronic record, certificate is necessary wherein the following contents are to be  included such as:

• Statement identifying the electronic record;
• Details of Device involved in production of electronic record;
• Description of the manner in which it is generated; to the best of the knowledge and belief of the person stating it.

This certificate has to be signed by the person occupying a responsible position in relation to the operation of the relevant device.

Section 65(4) stipulates that for producing electronic record as secondary evidence, the certificate is to be adduced along with the evidence.

Section 65B (5) provides that:

1. Information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
2. Whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.
3. A computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

 

 

Judicial views on admissibility of electronic evidence

• State (N.C.T. Of Delhi) versus Navjot Sandhu@ Afsan Guru, (2005) 11 SCC 600

In this case, a two-Judge Bench of the Hon’ble Supreme Court had an occasion to consider an issue on production of electronic record as evidence while considering the printouts of the computerized records of the calls pertaining to the cellphones and held that:

“Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & Section 65 of the Indian Evidence Ac, 1872.”

Anvar P.V.vERSUS. P.K. Basheer & Ors, (2014) 10 SCC 473

In this case, Supreme Court overruled State (n.c.t. of Delhi) versus Navjot Sandhu@ Afsan Guru, and held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied.

The Hon’ble Court also observed that:

“Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield. The Hon’ble Court further held that if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act.”

“Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.”

In this case, the Hon’ble Supreme Court held that certificate must accompany the electronic record when the same is produced in evidence.

SHAFHI MOHAMMAD versus THE STATE OF HIMACHAL PRADESH, (2018) 2 SCC 801

One of the questions which arose in this case for consideration was whether videography of the scene of crime or scene of recovery during investigation should be necessary to inspire confidence in the evidence collected.

In this case, the Hon’ble Supreme Court laid a different opinion fromAnvar P.V. versus. P.K. Basheer &Ors, (2014) 10 SCC 473 and held that:

A party who is not in possession of device from which the electronic document is produced, cannot be required to produce certificate under Section 65B (4) of the Evidence Act.

The Hon’ble Court also opined that:

“If the electronic evidence was relevant and produced by a person who was not in custody of the device from which the electronic document was generated, requirement of such certificate could not be mandatory. It was submitted that Section 65B of the Evidence Act was a procedural provision to prove relevant admissible evidence and was intended to supplement the law on the point by declaring that any information in an electronic record, covered by the said provision, was to be deemed to be a document and admissible in any proceedings without further proof of the original. This provision could not be read in derogation of the existing law on admissibility of electronic evidence.”

Thus, requirement of certificate under Section 65B(h) is not always mandatory.

The Hon’ble Court further heldthat:

“Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”

Tomaso Bruno & Anr vERSUs State Of U.P, (2015) 7 SCC 178

In this matter, a three-judge bench of Hon’ble Supreme Court held thatSecondary evidence of contents of document can also be led under Section 65 of the IndianEvidence Act.

In this judgment, Hon’ble Supreme Court did not make any reference to the judgment laid down in Anvar, and instead followed the law laid down in Navjot Sandhu which was overruled in Anvar p.v.versus. p.k. Basheer &Ors, (2014) 10 scc 473.

ARJUN PANDITRAO KHOTKAR versus KAILASH KUSHANRAO GORANTYAL AND ORS, CIVIL APPEAL NOS. 20825-20826 OF 2017

In this case, the Hon’ble Supreme Court has clarified the conflicting view s taken by the Hon’ble Supreme Court in State (N.C.T. of Delhi) versus Navjot Sandhu@ Afsan Guru, Anvar P.V. versus. P.K. Basheer &Ors, (2014) 10 SCC 473, Tomaso Bruno &Anr versus State Of U.P, (2015) 7 SCC 178 and Shafhi Mohammad versus The State of Himachal Pradesh,(2018) 2 SCC 801.

The Hon’ble Supreme Court has made the following observations with respect to the admissibility of electronic evidence and tried to resolve the confusion created byearlier decisions.

• The dictum in “Anvar PV versus PK Basheer” need not be revisited.
• The application can be made to the trial court to direct a person to produce the certificate under Section 65B(4) of Evidence Act on the refusal of such person to produce the same otherwise.
• The certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V.and incorrectly “clarified” in Shafhi Mohammed.
• The certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where “the computer”, as defined, happens to be a part of a “computer system” or “computer network” (as defined in the Information Technology Act, 2000) and it becomes impossible to physically bring such network or system to the Court, then the only means of proving information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).
• The Hon’ble Supreme Court thus overruled Tomaso Bruno and Shafhi Mohammad Judgment.

Ravinder Singh @ Kaku versus State of Punjab, CrA 1307 OF 2019

The Hon’ble Supreme Court in this case heldthat the certificate under Section 65B(4) of Evidence Act is mandatory to produce electronic evidence and that the oral evidence in the place of such certificate cannot possibly suffice.

CONCLUSION

With the advancement of modern technology, use of digital media has increased which thus, enhances the possibility of production of  electronic evidence before Hon’ble Courts if in case any wrong gets committed. For admissibility of electronic evidence, production of certificate by a person relying on such evidence, is mandatory in order to ensure its authenticity as provided under Anvar P.V. versus P.K. Basheer &Ors, (2014) 10 SCC 473.

However, the challenging aspect before Hon’ble Court is whether such electronic evidence is authentic or not because possibility of manipulation, alteration of electronic record is an easy task in today’s modern digital era. Therefore, the Hon’ble Court must ensure veracity of contents of electronic record in order to rely upon it and administer fair trial.

With the change of times and the development of technology, there is a need of the hour to relook at Section 65B of the Indian Evidence Act, 1872 which was introduced twenty years ago and  has created a huge judicial turmoil swinging from one extreme to the other in the past 15 years from Navjot Sandhu to Arjun Panditraokhotkarcase.

Just imagine if communication between an advocate and client were not protected, would anyone dare to knock the doors of Hon’ble Courts and ask for justice. Obviously, not.

In order to prevent this situation, a rule termed as “privileged professional communication” came  into the books of statute. Privilege means a special right, advantage, or immunity granted or available to a particular person.

A “privileged professional communication” is a protection awarded to a communication made in any form between the advocate and the client. The intent behind providing this privilege is to protect the interest and the privacy of the client.

In “Pankaj Versus State of Maharashtra”, the Hon’ble Bombay High Court on 06.04.22 held that the lawyer-client relationship is a fiduciary one; any act which is detrimental to the legal rights of clients needs to be punished.

In India, professional communication between the attorney and the client is protected by law under Indian Evidence Act, 1872 and the Bar Council of India Rules.

What is advocate-client privilege?

No specific definition of “Advocate-client privilege” has been provided under Indian Evidence Act or any other law.

Advocate-client privilege is a rule that protects the confidentiality of communications made between a lawyer and his or her client. It is an immunity given to the communication made between advocate and his or her client for the purpose of protecting the interest of the client.

Objective of advocate-client privilege

• It provides an assurance to the client that his or her information will remain confidential while obtaining legal advice from an advocate.
• It encourages frank communication between the advocateand the client.
• It protects the rights of the client who is seeking

Exception to advocate- client privilege

There are certain exceptions which are not protected from privilege  such as:

1. If disclosure of communication is made with client’s consent.
2. If communication is made in furtherance of any illegal purpose.
3. Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment showing that any crime or fraud has been committed since the commencement of his employment.

Indian Evidence Act, 1872

Section 126 to 129 of the Indian Evidence Act, 1872 deals with the concept of advocate-client privilege

Section 126 of Indian Evidence Act, 1872 says that:

No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure—

(1) Any such communication made in furtherance of any illegal purpose

(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.

It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.

Explanation.—The obligation stated in this section continues after the employment has ceased.

According to Section 126 of the Indian Evidence Act, 1872, an advocate is not permitted to without client’s consent to disclose:

1. Any communication made between him and his client during the course of employment.
2. Any contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment.
3. Disclose any advice given by him to the client in the course of his employment.

An explanation is also provided which says that the obligation upon the advocate continues even after the employment has ceased.

Section 127 of the Indian Evidence Act, 1872 provides that:

The provisions of section 127 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys, and vakils.

This Section says that protection provided under Section 126 of the Indian Evidence Act,1872 have also been accorded to interpreters, and the clerks or servants of barristers, pleaders, attorneys, and vakils.

Section 128 of The Indian Evidence Act, 1872 says that:

If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126 and if any party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.

Section 128 of the Act is considered as a supplement to Section126 which says that if the party gives evidence in respect to the matter covered by confidential information then in such case, it would not mean that the party has given consent for such disclosure. It also states that if the party himself calls an advocate and ask questions pertaining to professional communication, then in such case it would mean that the party has given consent for such disclosure.

Section 129 of The Indian Evidence Act, 1872 says that:

No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.

According to Section 129 of Indian Evidence Act,1872 no person shall becompelled to reveal to the court any confidential communication which has taken place between him and his advocate unless he presents himself as a witness in order to explain the evidence which has been given by him.

Bar council of india rules

Rule 17 of Part VI Chapter II, Section II of  BCI Rules-An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act.

Rule 15 of Part VI Chapter II, Section II of BCR Rules– It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.

RULE 49 of Part VI, Chapter II,Section VII of BCR Rules- An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment.

JUDICIAL OPINION

Upjohn Co. Versus United States, 449 U.S. 383

The Hon’ble Supreme Court of United States held in this case that the purpose of the attorney-client privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.

1. v. McClure, 2001 SCC 14

In this matter, the Hon’ble Supreme Court of Canada held that the solicitor-client privilege is a principle of fundamental importance to the administration of justice as a whole.

Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer.  This privilege is fundamental to the justice system in Canada.  The law is a complex web of interests, relationships and rules.  The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system.  At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented.

Kalikumar Pal versus Rajkumar Pal, AIR 1932 Cal 148

The Hon’ble Calcutta High Court held in this present case that on general principles, and under Section 126, Evidence Act, there is no privilege to communications made before the creation of relationship of pleader and client.

Memon Hajee Haroon Mahomed versus Abdul Karim, [1878] 3 Bom. 91. 

In this case, the Hon’ble Bombay High Court opined that a communication by a party to his pleader must be of a confidential nature.

Municipal Corporation of Greater Bombay versus Vijay Metal Works, AIR 1982 Bom 6

The Bombay High Court in this case held that a salaried employee who advises his employer on all legal questions and also other legal matter would get the same protection as others under Sections 126 and 129 of the Evidence Act and even otherwise these communications are properly covered by these sections.

Satish Kumar Sharma versus Bar Council of Himachal, air 2001 sc 509

The Hon’ble Supreme Court held that incase if a full time employee is not pleading on behalf of his employer, or the term of the employment is such that he can do other functions or is not required to plead then such employee is mere  employee of the government or body corporate and ceases to be Advocate. The judgement also referred to the Part VI, Chapter II, Section VII, Rule 49 of the Bar Council of India Rules, and sated that an advocate cannot be a full time salaried employee of any person, government, firm or corporate body as long as long as he practices.

Dr Karamjit Singh Versus State of Punjab, AIR 2010(NOC) 699 (P&H)

In this case, the Hon’ble Punjab & Haryana High Court held that communications made between advocates and clients are not entitled for access under Right to Information Act, 2005.

CONCLUSION

According to the Black’s Law Dictionary, advocate-client privilege is “a client’s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney.”

Section 126 expressly prohibits lawyers from disclosing any communications made with the clients as well as the advice given to them. It also prohibits them from stating the contents or conditions of documents during the course of the professional engagement. This obligation upon the lawyer to not to disclose communication continues even after the employment. Whereas Section 129 of the Act prohibits clients unlike Section 126 from disclosing any legal opinion to the Court which they have obtained from their advocates.

In “Justice K.S. Puttaswamy (Retd) Versus Union Of India And Ors, Writ Petition (Civil) No. 494 of 2012”, the Hon’ble Supreme Court held that Professional Communication between advocate and client fall within the ambit of the right to privacy.

We can sum up by saying that the relationship between lawyer and client is a fudiciary one. Fudiciaryrelationship means the relationship where one person places trust, confidence and reliance on another.

This privilege is granted to preserve confidential legal communication so that the client without any fear can share information with the lawyer which thus, leads to better administration of justice.

Well, the answer to this question is ‘Yes’. The Hon’ble Supreme Court reiterated on several occasions that the Court may rely upon the testimony of the single eye witness while convicting a person without any further corroboration. There are remarkable judgments wherein this question had been a matter of issue and the insights of few will be discussed below:

NOTABLE JUDGMENTS

The State Of Punjab versus Gurmit Singh & Ors, 1996 AIR 1393

In this case, the Hon’ble Supreme Court reversed the order of Hon’ble Trial Court and convicted all the three accused persons for committing the offence of Rape and Abduction.

The Prosecutrix in this case was a young girl of 16 years of age who was going to the house of her maternal uncle after taking her tests. Suddenly, a blue ambassador car being driven by a sikh youth aged 20/25 years came from behind and stopped near her. One out of three accused came out of the car and caught hold of the prosecutrix from her arm and pushed her inside the car. All the three accused drove her to the `kotha’ of the Tubewell and raped her one by one. On completion of the investigation, all the accused persons were charged for offences under Sections 363, 366, 368, 376 IPC,1860.

The Hon’ble Trial Court, thus, disbelieved the version of the prosecutrix basically for the following reasons and passed the judgment of acquittal of the accused, which was challenged before the Hon’ble Supreme Court through an Appeal.

• She was so ignorant about the make etc. of the car that entire story that she was abducted in the car becomes doubtful” particularly because she could not explain the difference between a Fiat car, Ambassador car or a Master car;
• The investigating officer had “shown pitiable negligence” during the investigation by not tracing out the car and the driver;
• The prosecutrix did not raise any alarm while being abducted even though she had passed through the bus adda of village Pakhowal.
• The story of abduction” has been introduced by the prosecutrix or by her father or by the thanedar just to give the gravity of offence” and
• No corroboration of the statement of the prosecutrix was available on the record and that the story that the accused had left her near the school next morning was not believable because the accused could have no “sympathy” for her.
• There had been delay in lodging the FIR and as such the chances of false implication of the accused could not be ruled out.
• The medical evidence did not help the prosecution case.

The Hon’ble Apex Court set aside the order of the Hon’ble Trial Court and arrived at the conclusion that;

“The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.”

Phool Singh Versus The State of Madhya Pradesh, Criminal Appeal No. 1520 of 2021

In this case, one of the contentions raised by the rape accused who was convicted under Section 376 of the Code was that the prosecution case rests solely on the deposition of the prosecutrix (rape victim) only and that no other independent witnesses have been examined and/or supported the case of the prosecutrix.

The Hon’ble Supreme Court while upholding the conviction order under Section 376 of the Indian Penal Code, 1860 reiterated that a rape accused can be convicted on sole testimony of prosecuterix if she is found to be credible and trustworthy.

Sanjay Versus State of Haryana, CRA-D-1903-DB-2014 (O&M)

In this case, the Hon’ble Punjab and Haryana High Court has stated that:

“Statutorily, there exists no prohibition on child witnesses to depose in criminal or civil cases, except when the child does not understand the questions put to them, the Punjab and Haryana High Court has observed that when a child fully understands the questions and can provide answers regarding the same, rationally, then the testimony of a child witness can be the sole reason for conviction.”

Amar Singh Versus The State (NCT of Delhi), Criminal Appeal No. 335 of 2015

In this laudable judgment, the Hon’ble Supreme Court in an Appeal while giving a benefit of doubt to the accused persons convicted under Section 302 IPC, 1860 by Hon’ble Trial Court, reiterated that:

Conviction can be based on the testimony of a single eye witness so long he is found to be wholly reliable.

It also held that:

“As a general rule the Court can and may act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.”

Ganesan Versus State, (2020) 10 SCC 573

In the above citation, the Hon’ble Supreme Court held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, and credible and her evidence is of sterling quality.

State (NCT of Delhi) Versus PankajChaudhary, (2019) 11 SCC 575

The Hon’ble Supreme Court in the above matter held that:

“Conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence and that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration.”

Gulaband Another Versus State of U.P, Criminal Appeal No. – 2410 of 1985

In this case, the Hon’ble Allahabad High Court set aside the order of conviction for the offence of murder committed in the year 1980 after concluding that the testimony of the sole eye witness in the case isn’t wholly reliable.

It held that conviction on the basis of testimony of sole eye witness is permissible provided his evidence is free of any blemish or suspicion and impresses the Court as wholly truthful, reliable and natural.

CONCLUSION

In a nutshell, we can arrive at a decision that if testimony of sole witness is found to be reliable and trustworthy, then in such cases, it requires no corroboration and the court may convict the accused on the basis of the testimony of the sole witness.

The Hon’ble Supreme Court while placing reliance on various precendents has time and again held that the testimony of the sole witness is sufficient to hold the accused guilty if it inspires confidence.

Criminal proceedings cannot be quashed merely on the ground that “no useful purpose will be served by prolonging the proceedings of the case.

”(Satish Kumar JatavVersus The State of U.P. &Ors, Criminal Appeal No. 770 of 2022)

The Hon’ble Supreme Courton 17^th May 2022, held that the criminal proceedings cannot be quashed merely on the ground that “no useful purpose will be served by prolonging the proceedings of the case.”

In this case, an appeal was preferred by the original Complainant, Appellant herein, on being aggrieved with the impugned Judgment and Order dated 16.09.2019 passed by the  Hon’ble High Court of  Allahabad under Section 482 Cr.P.C. by which the High Court had allowed the application under Section 482 Cr.P.C. preferred by the accused(Respondents herein)and therebyquashed the criminal proceedings of Complaint as well as the summoning order by which the learned Magistrate summoned the original accused to face the trial for the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act .

The Appellant submitted that the impugned judgment and order passed by the High Court quashing the criminal proceedings against the accused is a cryptic, non-reasoned order and there is no further independent application of mind by the High Court and no reasons whatsoever have been assigned while quashing the criminal proceedings while the accused on the other hand supported the impugned judgment and order passed by the High Court.

After hearing the respective parties at length, the Hon’ble Supreme Court concluded that:

“Even from the impugned order passed by the High Court it appears that while quashing the criminal proceedings, the High Court has observed that no useful purpose will be served by prolonging the proceedings of the case. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged.

The High Court has not at all observed on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous. The manner in which the High Court has disposed of the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated. When serious allegations for the offences under Sections 307, 504, 506 of the IPC and Section 3(10)(15) of the Act were made, the High Court ought to have been more cautious and circumspect while  considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences. Under the circumstances the impugned judgment and order passed by the High Court is unsustainable both on facts as well as in law.”

The High Court has not at all observed on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous. The manner in which the High Court has disposed of the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated. When serious allegations for the offences under Sections 307, 504, 506 of the IPC and Section 3(10)(15) of the Act were made, the High Court ought to have been more cautious and circumspect while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences. Under the circumstances the impugned judgment and order passed by the High Court is unsustainable both on facts as well as in law. “

 In view of the above and for the reason stated above present appeal is allowed. The impugned judgment and order passed by the High Court under Section 482 Cr.P.C. in Criminal Misc. Application No.14607 of 2008 is hereby quashed and set aside. The order passed by the learned Magistrate summoning the accused is hereby restored.”

Legal position of Muslim Women relating to maintenance

In Islam, “Maintenance” is termed as “Nafaqah”, which literally means ‘an amount spent by a man over his family. According to many Muslim legal philosophers, maintenance includes all those things which are essential to lead a life such as food, clothing and residence.

It is believed that a woman on her marriage gives up her all other avocations and entirely devotes herself to the welfare of the family. In particular, she shares her emotions, sentiments, mind and body with her husband, and this investment of her in the marriage is a sacramental sacrifice which is far too enormous and can not be measured in terms of money.

Here, let’s have a look at how and to what extent rights of maintenance of Muslim woman has been laid down by the legislation and the judicial precedents in India.

Mohd. Ahmed Khan versus Shah Bano Begum andOrs, 1985 AIR 945

This was a landmark case in the Indian legal history of a 62-year-old woman, who was divorced and therefore, moved Supreme Court for claiming maintenance from her husband as her husband was contesting her claim on the ground that he had already given the payment of mahrdue to her under Muslim personal law so her claim for maintenance should be dismissed.

The Hon’ble Supreme Court while deciding this controversial issue held that, mahr is an amount which is payable in consideration of the marriage. Therefore, no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of the divorce. ‘Mahr’ is paid as a mark of respect to the wife. Therefore, a sum payable to the wife out of respect cannot be a sum payable by the husband to the wife for her maintenance on divorce. It further stated that generally the liability of the husband to provide maintenance to his wife is limited to the period of iddat but if she is unable to maintain herself, she is entitled to take recourse to Section 125 of the Code of Criminal Procedure, 1973. The Hon’ble Court concluded that the right conferred by Section 125 can be exercised irrespective of personal law of the parties.

The Hon’ble Supreme Court also held that Section 125 of the Code of Criminal Procedure, 1973 provides maintenance rights to every woman irrespective of religion.

This case is seen as one of a milestone wherein Hon’ble Supreme Court duly held that in case if any conflict arises between  Section 125 of the Code and the personal law, then in such a case former prevails and thus the liability of the husband to pay maintenance to his wife extends beyond the period of iddat in the circumstances where wife does not have sufficient means to maintain herself.

Muslim Women (Protection of Rights on Divorce) Act, 1986

The Muslim Women (Protection of Rights on Divorce) Act, 1986  was enacted on 19^th May, 1986 to protect the rights of a Muslim women who have been divorced by or have obtained divorce from, their husbands.

The provisions of this Act provided that the former husband must provide “a reasonable and fair provision” as maintenance within the period of iddat. Thereafter, if in case she is unable to maintain herself after the period of iddat, she can claim maintenance from her relatives and in case if they cannot pay, then she can claim from the Wakf Board.

In the case “DanialLatifi Versus Union Of India,(2001)7 SCC 740,” the constitutional validity of the MWPRDA, 1986 was challenged as being violative of the right to equality guaranteed under Article 14 of the Indian Constitution. Further, it deprived Muslim women of maintenance benefits equivalent to those provided to other women under Section 125 of Criminal Procedure Code, 1973 and it was argued that this law would leave Muslim women destitute and thus was violative of the right to life guaranteed under Article 21 of the Indian Constitution as the same excludes Muslim women from the purview of sec 125 of the Code.

The Hon’ble Supreme Court after interpreting the provision of the Act upheld its constitutionality and came to the conclusion that a Muslim husband is liable to pay reasonable amount of maintenance for the future of his divorced wife. It means amount entitled by a wife during the iddat period should be large enough so that she can easily maintain herself during iddat period as well as in future in order to survive and fulfill her basic needs. Thus, a divorced muslim woman is entitled to maintenance for a lifetime until she is married again. The court concluded that the Act does not violate Articles 14, 15 and 21 and hence, is not ultra vires and Section 3 of the Act is only a substitution of Section 125 Crpc and held:-

“1) a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.

2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.

3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.

4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.”

 

Similar view was taken by the Hon’ble Supreme Court in the case of “IqbalBanoversus State of UP, Criminal Appeal No. 795 of 2001, wherein it was stated that the provisions of the Act do not contravene Articles 14,15 and 21 of the Indian Constitution.

 

CONCLUSION

Prior to Shah Bano’s verdict, Muslim woman was entitled to claim maintenance only till the iddat period. But after Shah Bano’s case, Muslim Woman could claim maintenance even after the iddat period under Section 125 Crpc. Later, the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was misconstrued as restricting theliability of the husband to maintain his divorced wife only till the iddat period.

However, after the ruling of the Apex Court in “Daniel Latifi Versus Union of India”, the correct interpretation of the Act was provided by uphelding that the husband is liable to pay maintenance to his divorced wife during iddat period not only for the said period but also, for her survival in future as well,  unless she marries again.

The discretion with regard to grant of interest is available to the Arbitral Tribunal only when there is no agreement to the contrary between the parties: Supreme Court of India

(DELHI AIRPORT METRO EXPRESS PRIVATE LIMITED VERSUS DELHI METRO RAIL CORPORATION, CIVIL APPEAL NO. 3657 OF 2022)
The facts of the case in this present Appeal were as under:
Appellant namely, Delhi Airport Metro Express Private Limited, and Respondent namely, Delhi Metro Rail Corporation entered into a Concession Agreement dated 25th August 2008. As per the Concession Agreement, the Respondent was to carry out the civil works (excluding civil works at the Depot) and the balance works (including the Depot civil works and the Project systems works) were to be executed by the Appellant. As per Article 29 of the Concession Agreement, in the event of termination, it was the Respondent, which was liable to make payment for termination. During the course of operations of the project, a dispute arose between the Appellant and the Respondent. The Appellant terminated the Concession Agreement by Termination Notice dated 8th October 2012.

Thereafter, the Respondent referred the dispute to Arbitration under Article 36.2 of the Concession Agreement on 23rd October 2012. An Arbitral Award came to be passed on 11th May 2017. The Appellant thereafter filed an Execution Petition being OMP (ENF.) (COMM) No. 145 of 2021 on 12th September 2021, before the Delhi High Court for enforcement of the Arbitral Award dated 11th May 2017 passed by the Arbitral Tribunal. Various orders were also passed by the Hon’ble Single-Judge bench of the Delhi High Court in the said proceedings from time to time. In the said proceedings, a contention was raised on behalf of the Appellant that the sum, as specified under clause (a) of sub­section (7) of Section 31 of the 1996 Act, would include interest for a period from the date on which the cause of action arose to the date on which the award was made.
The said contention was rejected by the learned Hon’ble Judge of the Delhi High Court by the impugned order. The appellant on being aggrieved from the order of the Delhi High Court filed the present appeal by way of special leave.
The question that arose before the Court in the present Appeal was whether sum” awarded under clause (a) of sub-section (7) of Section 31 of the Arbitration and Conciliation Act, 1996 would also include interest pendente lite or not?
The Hon’ble Supreme Court after hearing the contention of both the parties held that:
……“It could thus be seen that the part which deals with the power of the Arbitral Tribunal to award interest, would operate if it is not otherwise agreed by the parties. If there is an agreement between the parties to the contrary, the Arbitral Tribunal would lose its discretion to award interest and will have to be guided by the agreement between the parties. The provision is clear that the Arbitral Tribunal is not bound to award interest. It has a discretion to award the interest or notto award. It further has a discretion to award interest at such rate as it deems reasonable. It further has a discretion to award interest on the whole or any part of the money. It is also not necessary for the Arbitral Tribunal to award interest for the entire period between the date on which the cause of action arose and the date on which the award is made. It can grant interest for the entire period or any part thereof or no interest at all. We find that in the present case, the words “unless otherwise agreed by the parties” would assume significance. If clause (a) of sub­section (7) of Section 31 of the 1996 Act is given a plain and literal meaning, the legislative intent would be clear that the discretion with regard to grant of interest would be available to the Arbitral Tribunal only whenthere is no agreement to the contrary between the parties. The phrase “unless otherwise agreed by the parties” clearly emphasizes that when the parties have agreed with regard to any of the aspects covered under clause (a) of sub­section (7) of Section 31 of the 1996 Act, the Arbitral Tribunal would cease to have any discretion with regard to the aspects mentioned in the said provision. Only in the absence of such an agreement, the Arbitral Tribunal would have a discretion to exercise its powers under clause (a) of sub­section (7) of Section 31 of the 1996 Act. The discretion is wide enough. It may grant or may not grant interest. It may grant interest for the entire period or any part thereof. It may also grant interest on the whole or any part of the money.It could thus be seen that each and every word and each and every phrase mentioned in the provision will have to be given effect to. Statutes have to be construed so that every word has a place and everything is in its place. It could thus clearly be seenthat as per Article 29.8 of the Concession Agreement, the Termination Payment would become due and payable to the Concessionaire by DMRC within thirty days of a demand being made by the Concessionaire. It further provides that if the DMRC fails to disburse the full Termination Payment within 30 days, the amount remaining unpaid shall be disbursed along with interest at an annualized rate of SBI PLR plus two per cent for the period of delay on such amount. It can thus clearly be seen that Article 29.8 of the Concession Agreement deals with payment of interest on Termination Payment amount.”
It further held that “We are therefore of the considered view that in view of the specific agreement between the parties, the interest prior to the date of award so also after the date of award will be governed by Article 29.8 of the Concession Agreement, as has been directed by the Arbitral Tribunal.”

Female Foeticide In India And Its Legal Safeguards

How disgraceful it is, that in a country where on one hand, woman is worshipped as a Goddess, while on the other hand, she is being killed in a womb. This is what female foeticide is.

It is the practice of killing of the girl child in the mother’s womb.  There is a tendency among Indian families to continuously produce children until the male child is born. People involved in female foeticide forget to figure out that when the foetus of a girl child is destroyed, future of a woman is also crucified.

Swami Vivekanand had once said: -“Just as a bird could not fly with one wing only, a nation would not march forward if the women are left behind.”Even in our sacred book, Mahabharat, Indian women are described as ‘beautiful and of high moral character.’

CAUSES

Generally, it is seen that the preference of male child over female is a major cause behind this social evil.

Here are other few major causes:

(i)Dowry

(ii)Technological advancement

(iii)Rise in Inflation

(iv)Preference of a male child

(v)Financial burden

Legal safeguards for unbornchild

The Indian Penal Code, 1860

Sections 312 to 316 of the Indian Penal Code (IPC), 1860 deals with miscarriage and offences against unborn and new born child.Depending upon the gravity of the crime, different punishments have been given under the Code.

 

Article 21 of the Constitution

The right to abortion is a species of right to privacy, which is enshrined under Art 21 of the Constitution.

The Hon’ble Supreme Court, while considering a landmark case of “Suchita Srivastava & Anr. vs. Chandigarh Administration, (2009) 14 SCR 989” where an orphaned woman suffering from a mental retardation got pregnant as a result of rape, held that Article 21 of the Indian Constitution which guarantees right to life and personal liberty has a broader dimension which extends to liberty of a woman to make reproductive choices. These rights are the components of the woman’s right to privacy, personal liberty, dignity and bodily integrity as enshrined by Article 21 of the Constitution.

This similar position was reiterated by the Hon’ble Supreme Court in the landmark case of “Justice K.S.Puttaswamy(Retd) Versus Union Of India,(2019)1 SCC 1.”

Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 

In order to curb the practice of female foeticide and to raise the level of sex ratio, this Act was enacted by the Parliament of India on 20^th September 1994 andcame into force on 1^st January,1996.

The main purpose behind the enactment of this act was to ban the use of sex selection techniques before or after the conception and prevent the misuse of prenatal diagnostic techniques for the purpose of pre-natal sex determination leading to female foeticide.

The Act also regulates the use of pre-natal diagnostic genetic abnormalities techniques, like ultrasound and amniocentesis, by allowing their use only to detect genital abnormalities, metabolic disorders, chromosomal abnormalities, certain congenital malformations, haemoglobinopathies and sex-linked disorders.

The Act was further amended in the year 2003 to improve the regulation of the technology, generally used in sex selection and was renamed as “The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition Of Sex Selection) Act” (PCPNDT Act).

Medical Termination of Pregnancy Act,1971

The Medical Termination of Pregnancy Act, 1971 provides a ceiling of 20 weeks, for termination of pregnancy, beyond which abortion of a foetus is not permissible. The MTP Act provides that for termination of pregnancy up to 12 weeks, the opinion of a single Registered Medical Practitioner (RMP) is required and for termination between 12 and 20 weeks, the opinion of two RMP’s is required. The Act provides certain situations in which a pregnancy can be terminated such as, in cases where the continuation of a pregnancy would involve risks to the life of the mother or involve grave physical or mental injury to the woman.

The Medical Termination of Pregnancy (MTP) Act 1971 was amended in 2002 to facilitate its better implementation and to increase access of medical terminatiofor women especially in the private health sector.

Thereafter, The Medical Termination of Pregnancy (Amendment) Bill, 2020 was introduced in LokSabha on March 2, 2020 and was passed on March 17, 2020. The new Act allows termination of pregnancy upto 24 weeks for special categories of women such as rape victims, differently-abled women and minors. It permits abortion up to 20 weeks on the opinion of one doctor and to terminate pregnancies between 20 and 24 weeks, opinion of two doctors are required and for abortions beyond 24 weeks, consent of State-Level Medical Board is required.

JUDICIAL PRONOUNCEMENTS

Centre For Enquiry into Health and Allied Themes (CEHAT) & others Versus Union of India (2001)3 SCR 534 & Centre for Enquiry into Health and Allied Themes (CEHAT) & Others Versus Union of India (2003)8 SCC 412          

In these matters, a writ petition was filed by three petitioners, namely, Centre for Enquiry into Health and Allied Theme, Mahila Sarvangeen Utkarsh Mandal (MASUM) based in Pune and Maharashtra and Dr. Sabu M. Georges, in the Hon’ble Supreme Court against Union of India with a prayer for effective implementation of the   Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 as there was a decline in the sex ratio in the 2001 census in States like Haryana, Punjab, Maharashtra and Gujarat. The issue that came into consideration before Hon’ble Court was that despite enactment of the Act, it failed to prevent female foeticide.

For effective implementation of the Act, the Hon’ble Supreme Court had given various directions to Central Government,Central Supervisory Board (CSB), State Government/UT Administrations and State Governments/UT Administrations.

The Hon’ble Supreme Court while delivering the said judgments also pointed out that a mere enactment of the Act is a not a solution, proper implementation of the Act is also necessary.

Both are landmark cases where Hon’ble Court adequately addressed the issue of female foeticide and enforcement of the Act, prohibiting prenatal sex identification and recommended for the Amendment in the Act.

Voluntary Health Association of Punjab Versus Union of India & Ors, (2013)4 SCC 1

In the said judgment, Hon’ble Justice Mr.Dipak Mishra while expressing his concern over sex selective abortions and misuse of the Prenatal Diagnostic Techniques Act,1994 made the following observations:

“A woman has to be regarded as an equal partner in the life of a man. It has to be borne in mind that she has also the equal role in the society, i.e., thinking, participating and leadership. The legislature has brought the present piece of legislation with an intention to provide for prohibition of sex selection before or after conception and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide. The purpose of the enactment can only be actualised and its object fruitfully realized when the authorities under the Act carry out their functions with devotion, dedication and commitment and further there is awakened awareness with regard to the role of women in a society. When a female foeticide takes place, every woman who mothers the child must remember that she is killing her own child despite being a mother. That is what abortion would mean in social terms. Abortion of a female child in its conceptual eventuality leads to killing of a woman. Law prohibits it; scriptures forbid it; philosophy condemns it; ethics deprecate it, morality decries it and social science abhors it.”

Vinod Soni and Anr. versus Union of India,2005 CriLJ 3408

In this matter, Petitioner challenged the constitutional validity of Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act of 1994 alleging that  it violates Article 21 of the Constitution of India on the ground that the right to personal liberty also includes the liberty of choosing the sex of the offspring.

The Hon’ble High Court while rejecting the contention of the Petitioner has held that, “It will therefore be seen that the enactment does not bring about total prohibition of any such tests. It intends to thus prohibit user and indiscriminate user of such tests to determine the sex at preconception stage or post conception stage. The right to life or personal liberty cannot be expanded to mean that the right of personal liberty includes the personal liberty to determine the sex of a child which may come into existence.”

SangeetaThapa Versus Government of NCT of Delhi &Ors, W.P.(C) 15241/2021

TheHon’ble Delhi High Court while allowing a woman to terminate her 28 weeks’ pregnancy as her foetus was suffering from a rare congenital heart disease has made following observations.

• The High Court said the woman cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy, due to foetal abnormalities.
• Reproductive choice is a dimension of personal liberty that is enshrined in Article 21 of the Constitution.
• Allowing the pregnancy to continue would have a deleterious impact on the petitioner’s mental health.
• The petitioner cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy in view of the medical board’s opinion.

CONCLUSION

It is unfortunate that a country where Constitution provides equal status to both men and women, a crime like female foeticide still exists. According to the fifth National Family and Health Survey carried out by the government between 2019 and 2021, it was found that India has 1,020 women for every 1,000 men.  For the first time India had more women than men in its history. The scheme “BetiBachao, BetiPadhao” was introduced by the Government to address issues related to gender discrimination and women empowerment in the country. This scheme focuses on changing mindsets and patriarchy in the society and ensures effective implementation of the PC & PNDT Act.

It is true that strict interpretation of law is necessary but we need to understand that mere enactment of legislation cannot itself solve the problem. A strict interpretation of law as well as stringent punishment, both are necessary for achieving the intention of the legislature behind enacting laws. In fact, we all should collectively make efforts to eradicate the practice of female feoticide. More such schemes should be incorporated by the Government, more such camps should be organized and more education and knowledge should be provided so that no person can ever think to snatch the life of a female child in the womb of a mother.

Continuing offence means a transaction, or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy.

According to the Blacks’ Law dictionary,“Continuing” means “enduring; not terminated by a single act or fact; subsisting for a definite period or intended to cover or apply to successive similar obligations or occurrences.”

In simple terms, continuing offence is an offence which remains continued over aspan of time.

Though our legislature does not provide any definition of ‘Continuing Offence’ but there are numerous occasions on which judicial Officers have considered this issue and made it’s concept clear while pronouncing judgments.

LEGAL ENACTMENTS

Section 472 of the Code of Criminal Procedure, 1973 says that in case of a continuing offence, a fresh period of limitation begins to run at every moment of time during which the offence continues.

Sometimes there comes a situation where an offence continues to occur over a prolonged period of time. So, then in such circumstances it seems difficult to determine the period of limitation. The paramount object of inserting this provision is to safeguard the interest of the aggrieved person or a litigantin case an offence alleged is a continued one and enable the courts in meeting the ends of Justice.

INSTANCES OF CONTINUING OFFENCES

Cases of Domestic Violence

The concept of continuing offence has been applied by the courts in many domestic violence cases such as:

In the case of “Kamatchi vs Lakshmi Narayanan, Criminal Appeal No.627 of 2022”, the Hon’ble Supreme Court has held that the limitation period prescribed under Section 468 of the Code of Criminal Procedure is not applicable for the filing of an application by an aggrieved woman under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

Also, In this case titled as “Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705”, the question that arose before Hon’ble Court was whether wife can take’stridhan’ back from her husband after judicial separation under section 12 of Domestic Violence Act, 2005? While answering to this contention of the wife, the Hon’ble Supreme Court held that the concept of “continuing offence” gets attractedfrom the date of deprivation of Stridhan. Stridhan is the exclusive right of the wife and the husband and his family members are mere custodians.

As long as the status of the aggrieved person remains with wife and Stridhanremains in the custody of the husband, the wife can always put forth her claim under Section 12 of the Domestic Violence Act, 2005.

Abduction

Abduction is defined under Section 362 of the Indian Penal Code, 1860. It says that any person who by force compels, or by any deceitful means induces any person to go from any place, is said to commit an offence of abduction.

Abduction is a continuing offence and continues so long as the movement of the abducted person continues from one place to another due to forceful compulsion and deceitful means.

In the case titled as “Vikas Chaudhary vs State of Nct Of Delhi &Anr, SLP (Crl.) No. 8628 of 2009”, the Hon’ble Supreme Court has observed  that offence of murder coupled with abduction would be considered as a continuing offence and held that “even after the death of the victim every time a ransom call was made a fresh period of limitation commenced. Accordingly, it would be the date on which the last ransom call was made, i.e., 11th March, 2003, which has to be taken to be the date of commission of the offence and, accordingly, the Juvenile Justice Act was no longer applicable to the Petitioner, who had attained the age of 18 years by then.”

Cruelty

Section 498A of the Indian Penal Code, 1860 provides for the provision of Cruelty. The object of this provision is to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives.

The Hon’ble High Court in the case titled as “JagdishAndOrs. vs State Of Rajasthan And Anr,1998 CriLJ 554, was of the opinion thatthe offence under Section 498A of the Indian Penal Code,1860 is a continuing offence and if the act of cruelty continues even while the woman is living at her parents house, the offence is triable by both the Courts in whose territorial jurisdiction the act of continuing offence of cruelty has been committed at matrimonial home or the parents house.

Cases under Companies Act

An expression “continuing offence” also finds its space in the acts like Companies Act,2013.  There are various provisions under Companies Act which talks about continuing offences.

In the case of “Gokak Patel Volkart Ltd VersusDundayyaGurushiddaiahHiremath&Ors,1991 SCR (1) 396”, the question whether a particular offence is a ‘continuing offence’ or not must, therefore, necessarily depend upon the language of the statute which creates that offence, the nature of the offence and the purpose intended to be achieved by constituting the particular act as an offence.It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation. So, a ‘Continuous Crime’ means “one consisting of a continuous series of acts, which endures after the period of consummation, as, the offence of carrying concealed weapons. In the case of instantaneous crimes, the statute of limitation begins to run with the consummation, while in the case of continuous crimes it only begins with the cessation of the criminal conduct or act.”

Also in the case titled as “Siddhartha Sen Versus Registrar of Companies Orissa, decided on, 27 March 2009”,a question that came into consideration before the Hon’ble High Court was whether non-filing of return on the due date is in the nature of “continuous offence” or not? Therein, the Hon’ble Orissa High Court has asserted that the test laid down in the case of State of Bihar Versus DeokaranNenshi 1973 AIR 908should be applied. Therefore, the Hon’ble Court has held that the distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. Therefore, it held that an act of non-filing of return on the due date is not a “continuous wrong.”

Many other instances have also came to light where the expression “continuing offence” has clearly been defined.

Few Relevant Judgments

There is plethoraof judgments in which court has dealt with the issue of continuing offence.

Here let’s exemplify few of them.

State of Bihar VersusDeokaranNenshi 1973 AIR 908,

In this present case, the Hon’ble Supreme Court has held that “A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance, occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.”

Udai Shankar Awasthi Versus State of U.P.&Anr, Criminal Appeal No.61 and 62 of 2013

The Hon’ble Supreme Court by placing reliance on the above-mentioned judgment has stated that in the case of a continuing offence, the ingredients of the offence continue, i.e., endure even after the period of consummation, whereas in an instantaneous offence, the offence takes place once and for all i.e. when the same actually takes place. The expression, ‘continuing offence’ has not been defined in the Cr.P.C. because it is one of those expressions which does not have a fixed connotation.

BalkrishnaSavalram Pujari and Others Versus Shree DnyaneshwarMaharajsansthan& Others, 1959 AIR 798

Herein this instant case, the Hon’ble Supreme Court has dealt with the aforementioned issue, and observed that a continuing offence is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuation of the said injury. In case a wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the said act may continue. If the wrongful act is of such character that the injury caused by it itself continues, then the said act constitutes a continuing wrong. The distinction between the two wrongs therefore depends, upon the effect of the injury.

BhagirathKanoria&Ors. Etc Versus State Of M.P. &Ors.,1984 AIR 1688A question that raised in the present case was whether failure to pay the employers’ contribution to the Provident Fund under the Employees’ Provident Fund and Family Pension Fund Act,19 of 1952is continuing offence. To which Apex Court has said that the offence of which the appellants are charged is the failure to pay the employer’s contribution before the due date. Considering the object and purpose of this provision, which is to ensure the welfare of workers, we find it impossible to hold that the offence is not of a continuing nature. Each day that they failed to comply with the obligation to pay their contribution to the fund, they committed a fresh offence. It is putting an incredible premium on lack of concern for the welfare of workers to hold that the employer who has not paid contribution or the contribution of the employees to the Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation. Such offences must be regarded as continuing offences, to which the law of limitation cannot apply.

The concept of continuing offence does not wipe out the original guilt. It keeps the contravention alive, day by day.

This issue of ‘continuing offence’ is not restricted only to Indian Territory but outside as well.

A case of continued crime is illustrated in the case of People v De Leon G.R. Nos. 25375 & 25376, wherein one of the issues involved is whether or not the accused, with intent to gain on the same occasion and in the same place, took roosters belonging to two different owners constitutes two crimes of theft.

While answering to this issue, Supreme Court of Philippine was of the opinion that the unity of the intention to take a thing belonging to another on one occasion and in the same place, constitutes the commission of only one crime of theft; and the fact that the things taken belong to different persons does not produce a multiplicity of crimes, which must be punished separately.

CONCLUSION

In view of the above, it is concluded that our Judicial Officers have made various successful endeavors in clarifying the concept of “continuing offence” amongst litigants and lawyers. But, so far as considering more clarification in respect to this aforesaid issue, legislation should work upon this andtry to bring harmony between legislature and judiciary. Generally, the punishment in Continuing offence is more severe than the punishment in Instantaneous Offence depending upon the very nature of the offence along with facts and circumstances of each case.