Ballb 3 Sem Notes

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Reference Material for Five Years
Bachelor of Law (Hons.)
Code: 038
Semester-III
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INDEX
Five Years Bachelor of Law (Hons.)
Code: 038
Semester – I
S.NO. SUBJECTS CODE PG.NO.
1 FAMILY LAW-I 201 03-72
2 CONSTITUTIONAL LAW 203 73-86
3 205 87-145
LAW OF CRIMES-I
4 ECONOMICS-I 207 146-228
5 POLITICAL SCIENCE-II 209 229-224

FAMILY LAW-I (201)
Unit-I: Hindu Marriage and Dissolution
a. Institution of Marriage under Hindu Law

i. Evolution and Concept of the Institution of Marriage
Marriage, also called matrimony or wedlock, is a socially or ritually recognized union or legal
contract between spouses that establishes rights and obligations between them, between them
and their children, and between them and their in-laws, as well as society in general. The
definition of marriage varies according to different cultures, but it is principally an institution in
which interpersonal relationships, usually sexual, are acknowledged. In some cultures, marriage
is recommended or considered to be compulsory before pursuing any sexual activity. When
defined broadly, marriage is considered a cultural universal.
Individuals may marry for several reasons, including legal, social, libidinal, emotional,
financial, spiritual, and religious purposes. Whom they marry may be influenced by socially
determined rules of incest, prescriptive marriage rules, parental choice and individual desire. In
some areas of the world, arranged marriage, child marriage, polygamy, and sometimes forced
marriage, may be practiced as a cultural tradition. Conversely, such practices may be outlawed
and penalized in parts of the world out of concerns for women's rights and because of
international law. In developed parts of the world, there has been a general trend towards
ensuring equal rights within marriage for women and legally recognizing the marriages
of interfaith or interracial, and same-sex couples. These trends coincide with the broader human
rights movement.
Marriage can be recognized by a state, an organization, a religious authority, a tribal group, a
local community or peers. It is often viewed as a contract. Civil marriage, which does not exist in
some countries, is marriage without religious content carried out by a government institution in
accordance with the marriage laws of the jurisdiction, and recognised as creating the rights and
obligations intrinsic to matrimony. Marriages can be performed in a secular civil ceremony or in
a religious setting via a wedding ceremony. The act of marriage usually creates normative or
legal obligations between the individuals involved, and any offspring they may produce. In terms
of legal recognition, most sovereign states and other jurisdictions limit marriage to opposite-sex
couples and a diminishing number of these permit polygyny, child marriage, and forced
marriages. Over the twentieth century, a growing number of countries and other jurisdictions
have lifted bans on and have established legal recognition for interracial marriage, interfaith
marriage, and most recently, same-sex marriage. Some cultures allow the dissolution of marriage
through divorce or annulment. In some areas, child marriages and polygamy may occur in spite
of national laws against the practice.
Since the late twentieth century, major social changes in Western countries have led to changes
in the demographics of marriage, with the age of first marriage increasing, fewer people
marrying, and more couples choosing to cohabit rather than marry. For example, the number of
marriages in Europe decreased by 30% from 1975 to 2005.
Historically, in most cultures, married women had very few rights of their own, being
considered, along with the family's children, the property of the husband; as such, they could not
own or inherit property, or represent themselves legally (see for example covertures). In Europe,
the United States, and other places in the developed world, beginning in the late 19th century and
lasting through the 21st century, marriage has undergone gradual legal changes, aimed at

improving the rights of the wife. These changes included giving wives legal identities of their
own, abolishing the right of husbands to physically discipline their wives, giving wives property
rights, liberalizing divorce laws, providing wives with reproductive rights of their own, and
requiring a wife's consent when sexual relations occur. These changes have occurred primarily
in Western countries. In the 21st century, there continue to be controversies regarding the legal
status of married women, legal acceptance of or leniency towards violence within marriage
(especially sexual violence), traditional marriage customs such as dowry and bride price, forced
marriage, marriageable age, and criminalization of consensual behaviours such
as premarital and extramarital sex.
ii. Forms, Validity and Voidability of Marriage
Forms of marriage
The ancient Hindu law recognised three forms of Shastric marriages as regular and valid. These
were Brahma (bride given gift by father), Gandharva (mutual agreement of bride and
bridegroom) and Asura (bride virtually sold by the father). The first and the third are arranged
marriage whereas the second one is love marriage.
Forms of marriages in modern Hindu law: The Hindu marriage Act, 1955, does not specially
provide for any forms of marriage. The Act calls marriage solemnized under the Act as Hindu
marriage which may be performed in accordance with shastric rites and ceremonies or in
accordance with the customary ceremonies prevalent in the community to which bride or
bridegroom belongs. However, it does not mean that a marriage cannot take any of the aforesaid
forms now. Marriage can still be entered into in anyone of the three forms.
Looking at from another aspect in Hindu society there are mainly two forms of marriages:
arranged marriages and love marriages. Most Hindu marriages are still arranged marriages. An
arranged marriage may be either in the form of Brahma marriage or in the form of Asura
marriage. Among the Sudras, the Asura form of marriage is very common. Among the high-class
Hindus, the Brahma form of marriage is common. The Gandharva form of marriage is fast
becoming popular among the younger generation.
Ceremonies
Marriage among Hindus being a religious and sacred tie, performance of certain ceremonies is
still necessary for a valid marriage. There were three important stages wherein certain
ceremonies were to be performed. They were:
1. Betrothal or Sagai: it is a formal promise to give the girl in marriage.
2. Kanyadan: It is actual giving away of the girl in marriage by her father.
3. Saptapadi: it consisted in performing a ceremony of taking seven steps before the sacred fire
by the bride and the groom. The performance of Saptapadi marked the completion of a marriage.
It made the marriage irrevocable.
As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the

ceremonies of marriage, its non performance will invalidate the marriage. The performance of
vedic rights is not enough to solemnise the marriage.

Customary ceremonies may not include any one of the Shastric ceremonies including Saptapadi.
It may be totally non-religious ceremony or it may be very simple ceremony. For instance,
among santhals smearing of vermilion by bridegroom on the forehead of the bride is the only
essential ceremony.
Necessary ceremonies, shastric or customary, whichever are prevalent on the side of the bride or
bridegroom, must be performed otherwise marriage will not be valid. No one can innovate new
ceremonies and a marriage performed with the innovated ceremonies and rites is invalid. Hindu
Marriage Act allows inter-caste marriages. But marriage between a Hindu and a non Hindu is not
permissible under Hindu Marriage Act and such a marriage if performed in India, will be invalid.
But foreign country such marriage is valid. Such marriage is also valid in India, if performed
under the Special Marriage Act, 1954.
Conditions for the validity of marriage (Section 3 and 5)

A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled,
namely :–
(i) Neither party has a spouse living at the time of the marriage;
(ii) At the time of the marriage, neither party.
(a) Is incapable of giving a valid consent to in consequences of unsoundness of mind; or
(b) Though capable of giving a valid consent, has been suffering from mental disorder of such a
kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) Has been subject to recurrent attacks of insanity or epilepsy.
(iii) The bridegroom has completed the age of twenty one (21) years and the bride the age of
eighteen years at the time of marriage.
(iv) The parties are not within the degrees of prohibited relationship unless the custom or usage
governing each of them permits of a marriage between the two;
(v) The parties are not sapindas of each other, unless the custom or usage governing each of them
permits of a marriage between the two.
Ingredients of Section 5
Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section both
the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other
a non Hindu or both are non Hindus, the marriage will not be a subject matter of this Act but will
relate to some other law i.e. Special Marriage Act etc.
Clause (i) – Condition of monogamy

This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither
party has a spouse living” depicts that the spouse must not be alive at the time of marriage. If the
spouse is alive at the time of marriage that could bar the remarriage of a person. However one
must note that the first marriage of a person should be a legally valid marriage. In spite of one’s
valid marriage if the person remarries in violation of Section 5(i), the second marriage will be
null and void and he will be subjected to penal consequences. The Scheduled Tribes are

exempted from the application of the Act. But there must be a proved custom to this effect.
Bigamy – Section 5(i)

Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and
Section 17 makes it a penal offence for both Hindu males and females under Section 494 and
495 of IPC. The offence of bigamy is committed only if the required ceremonies of marriage are
performed. The second marriage cannot be taken to be proved by the mere admission of the
parties; essential ceremonies and rites must be proved to have taken place. In the case of a
bigamous marriage, the “second wife” has no status of wife.
Clause (ii) – Condition regarding mental health or capacity

Sub clause (a) requires that at the time of marriage neither party is incapable of giving a valid
consent to marriage due to unsoundness of mind.
Sub clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither
party to marriage should be suffering from a mental disorder of such nature and to such a degree
as to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan Singh v. Jit
Kaur, the court held the marriage void on the ground that wife was suffering from schizophrenia
within short period after marriage and the disease was not disclosed to the husband before
marriage.
Sub clause (c) – Recurrent attacks of insanity: If a person has been subject to recurrent attacks of
insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even
during a lucid period.
Post marriage mental illness: If a party to a marriage is not suffering from any mental defect
described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this
condition.
Clause (iii) – Condition of marriageable age

According to this clause, at the time of marriage the bride must have completed the age of 18
years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage
Act. However, violation of this condition does not make the marriage void or voidable. It means
that it is valid though it may attract penalties. But it can become a valid ground for repudiation of
the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for
punishment for such marriage.
According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or
herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or
with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male
above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months
imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978
has also raised the age of marriage of girl to eighteen.
Clause (iv) – Avoidance of degrees of prohibited relationship

The parties to marriage must not fall within the degree of prohibited relationship. This

relationship is defined under Section 3(g) of the Act.
According to Section 3(g) “degree of prohibited relationship” means when two persons are
related to each other in any of the following manners:
(i) By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the Sapinda
relationship which extends upto fifth degree in the line of father and third degree in the line of
the mother. The distinction of this category is that it extends even beyond the Sapinda
ascendants.
(ii) By affinity: If one is the husband or wife of the lineal ascendants or descendants of the other.
For example, father-in-law and daughter-in-law, mother-in-law and son-in-law, step mother and
step son or step father and step daughter are thus within the degrees of prohibited relationship.
(iii) Wives of certain brother relations if one was the wife of:
(1) The brother, or

(2) The father’s brother, or
(3) The mother’s brother, or
(4) The father’s father’s brother, or
(5) The mother’s father’s brother, or
(6) The father’s mother’s brother, or
(7) The mother’s mother’s brother.
(iv) Certain close relations if both are:
(1) Brother and sister, or
(2) Niece and uncle (paternal or maternal), or
(3) Nephew and aunt (paternal or maternal), o
(4) Children of a brother and a sister, or
(5) Children of two brothers, or
(6) Children of two sisters.
According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is

void. It is also punishable under section 18(b) of the Act.
(i) ‘A’ marries his adopted sister. This is not a valid marriage, as it falls within the degrees of
Prohibited relationship. (ii) ‘A’ marries with the wife of Pre-deceased brother. It is not a valid
marriage as it falls within the degree of Prohibited relationship. (iii) ‘A’ marries his stepmother’s
sister. It is not a valid marriage, ‘A’ is related to his step-mother by half blood relationship.
Clause (v) – Avoidance of sapinda relationship

According to the Dharmashastra the Sapinda relationship is very important in the matter of
marriage. According to Mitakshara Law of Marriage ‘Pinda’ means body and therefore those
who are related by body or blood or consanguinity are sapindas among themselves. The Hindu
Marriage Act has adopted Mitakshara definition but has limited the extent of Sapinda
relationship to 5 degrees in line of ascent through the father and 3 degrees in the line of ascent
through the mother.

According to Section 3(f)(ii) two persons are said to be “sapindas” of each other if one is a lineal
ascendant of the other within the limits of sapindas relationship, or if they have a common lineal
ascendant to each of them.
Whereas Section 3(f)(i) states that “sapinda relationship” with reference to any person extends as
far as the third generation (inclusive) in the line of ascent through the mother, and the fifth
(inclusive) in the line of ascent through the father, the line being traced upwards in each case
from the person concerned, who is to be counted as the first generation.
Rules for determining sapinda relations:

1. The relationship extends as far as the third generation in the line of ascent through the mother
in case of both the parties.
2. The relationship extends as far as the fifth generation in the line of ascent through the father in
case of both the parties.
3. Sapinda relationship may submit in case of both the parties through the father or in case of
both through the mother; or it may subsist in case of one of them through the father and on case
of the other through the mother.
4. The line is traced upwards in case of both the parties counting each of them as the first
generation; the generations in the line of ascent whether three or five are to be counted inclusive
of the persons concerned and the common ancestor or ancestress.
Sapinda relationship includes relationship by half or uterine blood as well as by full blood and by
adoption. It also includes both, legitimate and illegitimate blood relationship.
Solemnisation of marriage (Section 7)

In connection with marriage the word ‘Solemnise’ means to celebrate marriage with proper
ceremonies and in due form. Unless the marriage is celebrated or performed with proper
ceremonies and in the due form, it cannot be said to be solemnised.
Section 7 provides that (i) A Hindu marriage may be solemnised in accordance with the
customary rites and ceremonies of either party thereto. (ii) where such rites and ceremonies
include the saptapadi, the marriage becomes complete and binding when the seventh step is
taken.
Section 7 provides two kinds of ceremonies (i) Customary Ceremonies and (ii) Shastric
Ceremonies.
As the rites and ceremonies to be observed are customary, they should possess all the qualities
which are necessary for the validity of a custom defined under section 3(a) of the Act.
According to Section 3(a) the expression ‘custom’ and ‘usage’ signify any rule which having

been continuously and uniformly observed for a long time, has obtained the force of law among
Hindus in any local area, tribe, community, group or family: provided that the rule is certain and
not unreasonable or opposed to the public policy; and in the case of a rule applicable only to a
family it has not been discontinued by the family.
It is not necessary that the customary rites or ceremonies must be very very old. What section
3(a) of Hindu Marriage Act requires is that for maturing into a custom a rule should have been
observed for a long time, continuously and uniformly.
When essential ceremonies consulting a Hindu marriage are not proved, the mere issuance of
certificate under Special Marriage Act cannot validate the marriage if the marriage has not been
solemnised as per the requirements of this Act.
The Act does not, however prescribe the ceremonies requisite for solemnisation of the marriage
but leaves it to the parties to choose a form of ceremonial marriage which is in accordance with
any custom or usage applicable to either party; and where the form adopted includes the
Saptapadi–that is the taking of seven steps by the bridegroom and the bride jointly before the
sacred fire–marriage becomes complete when the seventh step is taken.
The essential rites which may, however, be said to be the requirement common in all ceremonial
marriages are: (i) invocation before the sacred fire; and (ii) saptapadi.
Registration of Marriage (Section 8)

Section 8(1) of Hindu Marriage Act provides that for the purpose of facilitating the proof of
Hindu marriages, the state government may make rules providing that the parties to any such
marriage may have the particulars relating to their marriage entered on such manner and subject
to such conditions, as may be prescribed in a Hindi Marriage Register kept for the purpose.
Registration when necessary

Section 8(2) of the Act provides that the State Government may, if it is of opinion that it is
necessary or expedient so to do, provide that the entering of the particulars referred to above,
shall be compulsory in the state or in any part thereof, whether in all cases, or in such cases as
may be specified.
There was no requirement for the registration of Hindu marriages before the Hindu marriage Act,
1955. Generally, Hindus do not get their marriages registered unlike Adoption, Will Transfer of
Property and Partition. The Act does not contain the rules of registration and the State
Government have been authorised to frame them.
The purpose of registration is only to furnish a convenient evidence of marriage Clause (4)
provides that Hindu Marriage Registers will be admitted as evidence. The certificate is however
not a conclusive proof of marriage.
Besides the evidentiary value, the national commission for women has pointed that registration
of marriage has critical importance to various women related issues, such as :–

(a) Prevention of child marriage.
(b) Prevention of marriage without the consent of the parties.
(c) Prevention of illegal bigamy or polygamy.
(d) Enabling married women to claim their right to live in the matrimonial home, maintenance,
etc.
(e) Enabling the widows to claim various rights after the death of their husbands.
(f) Deterring men from deserting their wives after marriage.
(g) Deterring the sale of girl under the garb of marriage.
It is explicitly laid down in this Act that non registration does not affect the validity of marriage.
Thus marriage can be valid without registration.
In Seema v. Ashwini Kumar, the Supreme Court has dwelt at length on the topic of registration
of marriages. It suggested for the compulsory registration of marriages in all the states.
Void and Voidable marriages (Sections 11 and 12)

There are three types of marriages under this Act: (i) valid, (ii) void, and (iii) voidable. Section
11 deals with void marriages and Section 12 deals with the voidable marriage. All other
marriages which are not covered by these two sections are valid.
Void marriages
Section 11 states that any marriage solemnized at the commencement of this Act shall be null
and void and may, on a petition presented by either party thereto against the other party be so
declared by a decree of nullity if it contravenes any of the conditions specified in clauses (i), (iv)
and (v) of Section 5.
Thus a marriage will be void ab initio:
(1) If any party to marriage has a spouse living at the time of the marriage [Section 5(i)].
(2) If the parties are within the degree of prohibited relationship unless the custom or usage
governing each of them permits such a marriage [Section 5(iv)].
(3) If the parties are sapindas of each other, unless the custom or usage governing each of them
permits such a marriage [Section 5(v)].
Section 11 of this Act is prospective in nature. It is only applicable to marriages solemnised after
the commencement of the Hindu Marriage Act, 1955.
Effect of Void marriages

A void marriage is no marriage. It is void since its inception. No legal rights and duties flow
from it. Therefore, the relationship of husband and wife does not come into existence from a void
marriage. No declaration of the court is necessary to this effect. The issues from a void marriage
are illegitimate unless legitimatised by law in some way. If one withdraws from the society of
the other, the other party has no right to the restitution of conjugal rights. If one of them marries
again, he or she is not guilty of bigamy and the validity of later marriage is not affected because

of the first so called marriage.
Voidable marriages
A marriage which can be annulled or avoided at the option of one or both the parties is known as
a voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of Voidable
Marriage.
This section lays down four grounds on which a Hindu marriage becomes voidable. These are:
(1) Inability of the respondent to consummate the marriage on account of his or her impotency.
(2) Respondents incapacity to consent or suffering from a mental disorder.
(3) Consent of the petitioner being obtained by fraud or force.
(4) Concealment of Pre-marriage pregnancy by the respondent.
Impotency [Section 12(1)(a)]

Section 12(1)(a) can be dissected as under:
(1) That the marriage has not been consummated; and
(2) That the non consummation is due to the impotence of the respondent.
Consummation of marriages means full and normal sexual intercourse between married person.
A marriage is consummated by sexual intercourse. It consists in the penetration by the male
genital organ into the female genital organ. Full and complete penetration is an essential
ingredient of ordinary and complete intercourse. Partial, imperfect or transient intercourse of not
Consummation. The degree of sexual satisfaction obtained by the parties is irrelevant.
Consummation may be proved by medical evidence.
Impotency is the inability to have complete and normal sexual intercourse. It may arise from a
physical defect in either partner or from a psychological barrier amounting to invisible
repugnance on the part of one to sexual relations with that partner. Sterility is irrelevant and does
not imply impotency. Absence of uterus in the body of the one’s female partner does not amount
to impotency but the absence of a proper vagina would mean impotency. Similarly organic
malformation making a woman sexless would means impotency. If a husband fails to satisfy his
wife’s abnormal appetite for sex that cannot be regarded as impotency. Thus impotency means
practical impossibility of consummation of marriage. Sexual intercourse which is incomplete
occasionally does not amount to impotency. It includes discharge of healthy Semen containing
living sperms in the case of men and discharge of menses in the case of women.
Regarding impotency, the various principles laid down by the courts could be summarised as
follows:
(1) Full and complete penetration is an essential ingredient of ordinary and complete intercourse,
though degree of sexual satisfaction obtained by the parties is irrelevant. If one spouse is
oversexed and the other is not, it does not amount to impotency.

(2) Impotency is usually either (a) physical, or (b) mental. Physical impotency includes
malformation of, or structural defects in the organs, such as unduly large male organ or
abnormally small vagina.
(3) Mental or psychological impotency includes emotional, psychological or moral repugnance

or aversion to the sexual act. In Shantabai v. Tara Chand, the wife was alleged to have an
absolute repugnance towards sexual intercourse although she had normal sexual organs. Held
that it amounts to impotency. Where immediately after marriage the husband lived for three
nights and days in the same room with his wife and failed to consummate the marriage, it was a
fair inference that non-consummation was due to husband’s knowing refusal arising out of
incapacity, nervousness or hysteria. In Nijhawan v. Nijhawan, a liberal interpretation of the word
‘impotence’ was made by the court. In that case, the wife felt depressed and frustrated owing to
the failure of husband to perform full and complete sexual intercourse. Held that vigorous and
harmonious sexual activity is the foundation of marriage and a marriage without sex is anathema.
The court considered the husband’s impotency to be a cause of mental and physical cruelty to the
wife.
(4) If impotency can be cured by medical treatment or surgery, it would not amount to
impotency, unless the respondent refuses to undergo treatment. In Rajendra v. Shanti, where the
size of wife’s vagina was after surgical operation one and half inch, but was fit for intercourse,
the court said that wife was not impotent.
(5) Mere barrenness or incapacity to conceive a child or sterility does not amount to impotency.
In Shewanti v. Bhaura, the wife was sterile but was capable of having sexual intercourse held
that she was not impotent.
Burden of Proof: The Burden of Proof lies on petitioner but when once the impotency is proved
there is a rebuttable presumption in favour of its continuance.
Consent obtained by force or fraud [Section 12(1)(c)]

For marriage the consent of the parties concerned must be free. This is not because marriage is a
contract but because the sweetness and success of a married life depends upon harmony between
both the parties. If the consent to marriage is not free, this harmony is a remote possibility. That
is why it is quite just and reasonable that a party whose consent is not free should be permitted to
come out of the wedlock. Section 12(1)(c) allows this. It makes the marriage voidable where
consent to it was obtained by force or fraud.
Section 12(1)(c) provides that a marriage is voidable on the ground that the consent of the
petitioner or of the guardian has been obtained by force or fraud. After the Child Marriage
Restraint Act the consent of guardian has became irrelevant as the minimum marriageable age
was set 21 years and 18 years for bridegrooms and bride.
Provided no petition for annulling a marriage:
(1) If the petition presented more than one year after the force had ceased to operate or, as the
case may be, the fraud had been discovered [Section 12(2)(a)(i)]; or

(2) The petitioners has, with his or her full consent, lived with the other party to the marriage as
husband or wife after the force had ceased to operate or as the case may be the fraud had been
discovered [Section 12(2)(a)(ii)].
Force: The word Force is not defined by the Act. But it may include all cases of compulsion,
coercion or duress. Abduction, terror, coercion and threat to commit suicide will definitely be
covered by the term force. Whenever owing to some natural weakness of mind or on account of
some fear, whether entertained reasonably or unreasonably, but nonetheless really entertained or
when a party is in such a mental state that he finds it almost impossible to resist the pressure, it
will amount to force.
However, mere pressure or strong advice, persuasion etc., will not amount to force.
Fraud: This section does not speak of fraud ‘in any general way or every misrepresentation or
concealment which may be fraudulent’ but ‘fraud as to the nature of the ceremony’ or ‘as to any
material fact or circumstance concerning the respondent’.
The clause prior to its amendment by the Amending Act of 1976, did not contain the words ‘or’
is to any material fact or circumstance concerning the respondent. The operation of the clause
was considerably extended so as to include within its ambit any material fact or circumstance
concerning the respondent. Whether a misrepresentation or false statement or concealment is as
to any such material fact, must to a large extent depend on the facts and circumstance of the case.
However, it must be something vital, touching or affecting the respondent and such as had
definitely induced or influenced consent. The petitioner must show that; but for such false
representation or statement or concealment he or she would not have married the respondent.
Some important grounds of fraud: (1) Nature of ceremony, (2) Identity of the party, (3)
Concealment of disease, (4) Concealment of religion or caste, (5) Concealment of previous
marriage, (6) Concealment of unchastity, (7) Concealment of illegitimacy, (8) Concealment of
age, (9) Petitioner’s father’s fraud, (10) Concealment of financial status and nature of
employment.
A petition for nullity must be filed within one year of the discovery of fraud or cessation of
force. This condition is mandatory.
Thus the operation of Section 12(1)(c) has been considerably winded by the 1976 Amendment.
Pre-marriage Pregnancy [Section 12(1)(d)]

Section 12(1)(d) provides that a marriage is voidable on the ground that the respondent was at
the time of the marriage pregnant by some person other than the petitioner.
Section 12(1)(d) is to be read with Section 12(2)(b) which lays down three further conditions
which are to be satisfied in order to avail of the remedy under Section 12(1)(d). These are:

(1) That at the time of the marriage the petitioner was ignorant of the facts alleged;
(2) That the petitioner has started proceedings under Section 12 within one year of the marriage;
and
(3) That the petitioner did not have, with his consent, marital intercourse with his wife ever since
he discovered that the wife was pregnant by some other person.
Thus the requirements of this ground are:
(1) The respondent was pregnant at the time of marriage.

(2) The respondent was pregnant from a person other than the petitioner.
(3) The petitioner was ignorant of this fact at the time of marriage.
(4) The proceeding is started within one year of the marriage.
(5) Absence of marital intercourse by the petitioner husband with his wife since such discovery.
If the girl becomes pregnant by some person before her marriage and subsequently the same
fellow marries her the section has no application. If the bride becomes pregnant by some other
person than her husband after marriage the section has no relevance.
Onus of proof lies on the petitioner husband to prove this wife’s admission of pre-marriage
pregnancy plus the fact that husband had no access to her before marriage is sufficient to
establish her pre marriage pregnancy.
In Nishit v. Anjali, where a bride gave birth to a mature child within 167 days from the date of
marriage, it was held that it was for the wife to raise a reasonable doubt that she was pregnant by
the person who became her husband.
A blood test for the ascertainment of the child’s paternity is also possible. If the wife volunteers
for the same then it is well and good, but it cannot be forced upon her.
b. Matrimonial Remedies
Restitution of Conjugal Rights - (Right to stay together)

If either the husband or the wife, without reasonable excuses, withdraws from the society of the
other, the aggrieved party may approach the Court for restitution of conjugal rights.
The decree of restitution of conjugal rights cannot be executed by forcing the party who has
withdrawn from the society from the other to stay with the person who institutes Petition for
restitution. The decree can be executed only by attachment of the properties of
the judgment debtor. The practice has shown that the decree of restitution is a paper decree.
However, if the decree of restitution of conjugal right is not honored for a period of more
than one year, subsequent to the date of the decree, it becomes a ground for divorce.
Judicial Separation: Legal Separation without divorce

Either party to the marriage may present a petition on any of the grounds stated in the provisions
for divorce, praying for a decree of judicial separation. A judicial separation is a legal way to

stay separate from the spouse, without obtaining a decree of divorce. It also helps in cases to
defend a petition for restitution of conjugal rights. A judicially separated spouse cannot be given
a meaning to include a spouse merely living separately, and who has not obtained a decree for
judicial separation.
In case, there has been no resumption of cohabitation between the parties to the marriage for
a period of one year or upwards, after the passing of the decree for judicial separation, it shall be
a ground for a divorce.
Dissolution of marriage
Earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble
union of the husband and wife. Manu declared that a wife cannot be released by her husband
either by sale or by abandonment, implying that the marital tie cannot be severed in anyway.
Although Hindu law does not contemplate divorce yet it has been held that where it is recognized
as an established custom it would have the force of law.
According to Kautilya’s Arthashatra, marriage might be dissolved by mutual consent in the case
of the unapproved form of marriage. But, Manu does not believe in discontinuance of marriage.
He declares” let mutual fidelity continue till death; this in brief may be understood to be the
highest dharma of the husband and wife.”
However, this changed when divorce was introduced in the Hindu Marriage Act, 1955.
Theories of Divorce
There are basically three theories for divorce-fault theory, mutual consent theory & irretrievable
breakdown of marriage theory.
Under the Fault theory or the offences theory or the guilt theory, marriage can be dissolved only
when either party to the marriage has committed a matrimonial offence. It is necessary to have a
guilty and an innocent party, and only innocent party can seek the remedy of divorce. However
the most striking feature and drawback is that if both parties have been at fault, there is no
remedy available.
Another theory of divorce is that of mutual consent. The underlying rationale is that since two
persons can marry by their free will, they should also be allowed to move out of their
relationship of their own free will. However critics of this theory say that this approach will
promote immorality as it will lead to hasty divorces and parties would dissolve their marriage
even if there were slight incompatibility of temperament.
The third theory relates to the irretrievable breakdown of marriage. The breakdown of marriage
is defined as “such failure in the matrimonial relationships or such circumstances adverse to that
relation that no reasonable probability remains for the spouses again living together as husband
& wife.” Such marriage should be dissolved with maximum fairness & minimum bitterness,
distress & humiliation.
Some of the grounds available under Hindu Marriage Act can be said to be under the theory of
frustration by reason of specified circumstances. These include civil death, renouncement of the
world etc.
Grounds for Divorce Under Hindu Marriage Act
It is conceded in all jurisdictions that public policy, good morals & the interests of society
require that marital relation should be surrounded with every safeguard and its severance be
allowed only in the manner and for the cause specified by law. Divorce is not favored or
encouraged, and is permitted only for grave reasons.
In the modern Hindu law, all the three theories of divorce are recognized & divorce can be

obtained on the basis of any one of them. The Hindu Marriage Act, 1955 originally, based
divorce on the fault theory, and enshrined nine fault grounds in Section 13(1) on which either the
husband or wife could sue for divorce, and two fault grounds in section 13(2) on which wife
alone could seek divorce. In 1964, by an amendment, certain clauses of Section 13(1) were
amended in the form of Section 13(1A), thus recognizing two grounds of breakdown of
marriage. The 1976 amendment Act inserted two additional fault grounds of divorce for wife & a
new section 13B for divorce by mutual consent.
The various grounds on which a decree of divorce can be obtained are as follows-
Adultery
While adultery may not have been recognized as a criminal offence in all countries, the
matrimonial offence of adultery or the fault ground of adultery is recognized in most. Even under
the Shastric Hindu law, where divorce had not been recognized, adultery was condemned in the
most unequivocal terms. There is no clear definition of the matrimonial offence of adultery. In
adultery there must be voluntary or consensual sexual intercourse between a married person and
another, whether married or unmarried, of the opposite sex, not being the other’s spouse, during
the subsistence of marriage. Thus, intercourse with the former or latter wife of a polygamous
marriage is not adultery. But if the second marriage is void, then sexual intercourse with the
second wife will amount to adultery.
Though initially a divorce could be granted only if such spouse was living in adultery, by the
Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is that
it considers even the single act of adultery enough for the decree of divorce
Since adultery is an offence against marriage, it is necessary to establish that at the time of the
act of adultery the marriage was subsisting. Also, it follows that unless one willingly consents to
the act, there can be no adultery. If the wife can establish that the co-respondent raped her, then
the husband would not be entitled to divorce.
In Swapna Ghose v. Sadanand Ghose the wife found her husband and the adulteress to be lying
in the same bed at night and further evidence of the neighbors that the husband was living with
the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter is
that direct proof of adultery is very rare.
The offence of adultery may be proved by:
Circumstantial evidence
Contracting venereal disease
Cruelty
The concept of cruelty is a changing concept. The modern concept of cruelty includes both
mental and physical cruelty. Acts of cruelty are behavioral manifestations stimulated by different
factors in the life of spouses, and their surroundings and therefore; each case has to be decided
on the basis of its own set of facts. While physical cruelty is easy to determine, it is difficult to
say what mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness,
which inflicts pain of such a degree and duration that it adversely affects the health, mental or
bodily, of the spouse on whom it is inflicted. In Pravin Mehta v. Inderjeet Mehta, the court has
defined mental cruelty as ‘the state of mind.’
.
Desertion
Desertion means the rejection by one party of all the obligations of marriage- the permanent
forsaking or abandonment of one spouse by the other without any reasonable cause and without
the consent of the other. It means a total repudiation of marital obligation.

The following 5 conditions must be present to constitute a desertion; they must co-exist to
present a ground for divorce:
The factum of separation
Animus deserdendi (intention to desert)
Desertion without any reasonable cause
Desertion without consent of other party
Statutory period of two years must have run out before a petition is presented.
In Bipinchandra v. Prabhavati the Supreme Court held that where the respondent leaves the
matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently
he shows an inclination to return & is prevented from doing so by the petitioner.
Conversion
When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam,
Christianity, Judaism, Zorostrianism, a divorce can be granted.
Insanity
Insanity as a ground of divorce has the following two requirements-
i) The respondent has been incurably of unsound mind
ii) The respondent has been suffering continuously or intermittently from mental disorder of such
a kind and to such an extent that the petitioner cannot reasonably be expected to live with the
respondent.
Leprosy
Contagiousness of leprosy and repulsive outward manifestations are responsible for creating a
psychology where man not only shuns the company of lepers but looks at them scornfully. Thus,
it is provided as a ground for divorce. The onus of proving this is on the petitioner.
Venereal Disease
At present, it is a ground for divorce if it is communicable by nature irrespective of the period for
which the respondent has suffered from it. The ground is made out if it is shown that the disease
is in communicable form & it is not necessary that it should have been communicated to the
petitioner (even if done innocently).
Renunciation
“Renunciation of the world” is a ground for divorce only under Hindu law, as renunciation of the
world is a typical Hindu notion. Modern codified Hindu law lays down that a spouse may seek
divorce if the other party has renounced the world and has entered a holy order. A person who
does this is considered as civilly dead. Such renunciation by entering into a religious order must
be unequivocal & absolute.
Presumption Of Death
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for
a period of at least seven years. The burden of proof that the whereabouts of the respondent are
not known for the requisite period is on the petitioner under all the matrimonial laws. This is a
presumption of universal acceptance as it aids proof in cases where it would be extremely
difficult if not impossible to prove that fact. A decree of divorce granted under this clause is
valid & effective even if it subsequently transpires that the respondent was in fact alive at the
time when the decree was passed.

Wife’s Special Grounds For Divorce
Besides the grounds enumerated above, a wife has been provided four additional grounds of
divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-
Pre-Act Polygamous Marriage
This clause states the ground for divorce as, “That the husband has another wife from before the
commencement of the Act, alive at the time of the solemnization of the marriage of the
petitioner. For example, the case of Venkatame v. Patil where a man had two wives, one of
whom sued for divorce, and while the petition was pending, he divorced the second wife. He
then averred that since he was left only with one wife, and the petition should be dismissed. The
Court rejected the plea.
Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife)
should be present at the time of filing of the petition. However, today this ground is no more of
practical importance.
Rape, Sodomy Or Bestiality
Under this clause, a divorce petition can be presented if the husband has, since the solemnization
of the marriage, been guilty of rape, sodomy or bestiality.
Non-Resumption Of Cohabitation After A Decree/Order Of Maintenance
If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973
or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has not
been resumed between parties after one year or upwards, then this is a valid ground for suing for
divorce.
Repudiation Of Marriage
This provision provides a ground for divorce to the wife when the marriage was solemnized
before she attained the age of fifteen years, and she has repudiated the marriage, but before the
age of eighteen. Such repudiation may be express (written or spoken words) or may be implied
from the conduct of the wife (left husband & refused to come back). Moreover, this right (added
by the 1976 amendment) has only a retrospective effect i.e. it can be invoked irrespective of the
fact that the marriage was solemnized before or after such amendment.
Irretrievable Breakdown Of Marriage
Irrespective of the three remedies available to parties that is: restitution of conjugal rights,
judicial separation and divorce, the judiciary in India is demanding irretrievable breakdown of
marriage as a special ground for divorce, as sometimes courts face some difficulties in granting
the decree of divorce due to some of the technical loopholes in the existing theories of divorce.
Both the Supreme Court and Law Committee consider the implementation of such a theory as a
boon to parties who for one or the other reasons are unable to seek the decree of divorce.
Therefore in the opinion of the Supreme Court and Law Commission of India, it is very essential
to make it a special and separate ground mission that introduction of irretrievable breakdown of
marriage, as a special ground will do any public good.
Under Hindu Marriage Act, 1955 primarily there are three theories under which divorce is
granted:
(i) Guilt theory or Fault theory,
(ii) Consent theory,
(iii) Supervening circumstances theory.
The Irretrievable breakdown theory of divorce is the fourth and the most controversial theory in
legal jurisprudence, based on the principle that marriage is a union of two persons based on love

affection and respect for each other. If any of these is hampered due to any reason and if the
matrimonial relation between the spouses reaches to such an extent from where it becomes
completely irreparable, that is a point where neither of the spouse can live peacefully with each
other and acquire the benefits of a matrimonial relations, than it is better to dissolve the marriage
as now there is no point of stretching such a dead relationship, which exist only in name and not
in reality
The breakdown of relationship is presumed de facto. The fact that parties to marriage are living
separately for reasonably longer period of time (say two or three years), with any reasonable
cause (like cruelty, adultery, desertion) or even without any reasonable cause (which shows the
unwillingness of the parties or even of one of the party to live together) and all their attempts to
reunite failed, it will be presumed by law that relationship is dead now.
Recently the Supreme Court Naveen Kohli v. Neelu Kohli has recommended an amendment to
the Hindu Marriage Act, whereby either spouse can cite irretrievable breakdown of marriage as a
reason to seek divorce. Expressing the concern that divorce could not be granted in number of
cases where marriages were virtually dead due to the absence of the provision of irretrievable
breakdown, the court strongly advocated incorporating this concept in the law in view of the
change of circumstances.
The Court observed that public interest demands that the married status should, as far as
possible, as long as possible and whenever possible, be maintained. However, where a marriage
has been wrecked beyond any hope of being repaired, public interest requires the recognition of
the fact. The judgment notes that there is no acceptable way in which a spouse can be compelled
to resume life with the consort and that situations causing misery should not be allowed to
continue indefinitely as law has a responsibility to adequately respond to the needs of the society.
The profound reasoning is that in situations when there is absolutely no chance to live again
jointly or when it is beyond repair, in such a case it would be futile to keep the marital tie alive.
Here the ground of irretrievable breakdown is really needed. But it should not be oblivious that
the ground, when introduced, needs to provide safeguards to ensure that no party is exploited.
Merits
The only merit of the theory as has been propounded by the jurists is that a marriage, which in
practice is considered to be sacramental institution, should be based on grounds on which a
sound marriage is built- that is tolerance, adjustment and respecting each other. If any of the
party to marriage is not ready to live with the other party the relationship will not be a happy
relationship. Stretching such a relationship will do no good, rather will develop hatred and
frustration among the parties for each other. Therefore to protect the sanctity of marriage, to
reduce the number of unhappy marriages and to prevent from getting wasted the precious years
of life of the spouses, it is necessary to dissolve such a marriage.
Demerits
The Law Commission Of India in Chapter 4 of the 71st report has dealt in detail the demerits of
the irretrievable breakdown theory. The two main oppositions discussed in the report are as
follows:
(i) It will make divorce easy. It will allow the spouses or even to any one of the spouses to
dissolve the marriage out of their own pleasure.
(ii) It will allow the guilty spouse to take the advantage of his own fault by getting separated and
dissolving the marriage.
Conclusion
Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there

was no provision for divorce. The concept of getting divorced was too radical for the Indian
society then. The wives were the silent victims of such a rigid system. However, time has
changed; situations have changed; social ladder has turned. Now the law provides for a way to
get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors of
such a provision are women who no longer have to silently endure the harassment or injustice
caused to them by their husbands. But the manner in which the judiciary is dealing with the
subject of irretrievable break down of marriage, it is feared that it will completely pause the
system of marriages. Every theory has its negative and positive traits. There applicability differs
from situation to situation. Therefore it is very essential that the lawmakers of our country should
deal with the subject in a very cautious manner after considering in detail its future implications.
Unit-II: Muslim Marriage and Dissolution of Marriage
Nikah (Muslim Marriage)
In the pre-Islam Arabia, the laws were favourable towards males and discriminatory against the
women. Polygamy had to be accounted for in a very few blood relationships like in marriage
with one’s real mother or sister. Marriages were of different kinds and divorce was simple and
easy for the man. With absolute rights vested in men and no checks led to men denying the
women their basic rights.
Islam brought with it a due status for women and regarded them as dignified members of the
society. ‘Nikah’ literally means ‘to tie up together’ and referred to the Islamic marriage. It is a
matrimonial contract as well as an institution that gives the women a particular and high status in
the society. Nikah was to ensure stability in a married life as it bound both the partners together
for an indefinite period and also required the woman to be honoured with the mahr.
Islam allows limited polygamy, i.e. four wives at a time. This was allowed as during the
numerous wars during the Prophet’s time in Arabia, many Muslim men lost their lives. Thus, the
women outnumbered the men. The war-widows and orphans became destitute as they had no
standing in the society and lead miserable lives. In order to prevent injustice, Quran allows
limited polygamy through the following Ayat: “marry of the women, who seem good to you, two
or three or four, if you fear that you cannot do justice to so many, then one.”
Justice refers to equal love and affection as well as boarding and lodging. The Quran has another
Ayat that “you will not be able to deal equally between your wives however much you wish to
do so”. Thus, it can be safely inferred that though Islam permits four wives at a time it is actually
in favour of monogamy. The Motazila Muslims follow monogamy strictly. But Muslims all over
the globe follow the traditions of the Prophet and practise polygamy.
As per the statistics, Indian Muslims seem to prefer monogamy. Though they are allowed to have
four wives as per the law, the Muslim government servants require the government’s permission
before contracting the second marriage. Muslim countries like Turkey and Tunisia have laws for
monogamy. Pakistan has discouraged polygamy by implementing laws that makes it difficult to
marry two or more times.

DEFINITION
Hedaya says that “Marriage implies a particular contract used for the purpose of legalising
children.
Justice Mahmood has defined the Muslim marriage as “a purely civil contract”.
NATURE AND CONCEPT OF MARRIAGE
The object of a Muslim marriage is to legalise children and to a large extent to regulate and
validate the sexual relations. Apart from being a civil contract, it is also a social and religious
institution.
LEGAL ASPECT
Legally speaking a Muslim marriage is a contract for it has a few elements of a contract. The
parties have to be competent and offer, acceptance and free consent form an important part.
Within a limit, the parties can decide the terms of the marriage and in case of breach; there are
provisions for the rights and obligations of the parties. It can be safely said that marriage is very
similar to a contract.
SOCIAL ASPECT
Marriage is a social institution and a social method to give an equal status to women. The dower,
which is essential for a Muslim marriage, provides a security net for the woman in case of need.
Limited polygamy helps raise the woman’s standing and dignity in the society. By placing
prohibitions on the marriage, the relationships of families can be regulated and the ill effects of
in breeding are avoided.
RELIGIOUS ASPECT
Marriage is the tradition of the prophet as well as present in the words of Quran. Thus, a person
who marries gets religious benefits and the abstainer would have committed a sin. In ANIS
BEGAM v MOHD. ISTAFA (1933)55 All, 743, it has been held to be a religious sacrament.
ESSENTIAL OF A VALID MARRIAGE
A marriage is a valid marriage or Sahih only if it is recognised by the courts to be lawful.
I) COMPETENCE OF THE PARTIES
a) Age of Puberty
For marriage, dower and divorce, the age of majority under the Muslim law is the age of puberty
and not 18 years of age. Though Hedaya says the minimum age of puberty for a boy is 12 years
and for a girl it is 9 years; it has been fixed at 15 years of age by the Privy Council in the year
1916. Thus, a boy or a girl of 15 years of age will be presumed to have attained the age of
puberty unless the contrary is proved.
Minor’s Marriage
Under Muslim law, a person under 15 years of age is presumed to be a minor and has no capacity
to give consent for marriage. Unless and until the guardian’s consent is not obtained the marriage
will be void. Guardians for marriage are different from guardians appointed by the court. The
order of the priority is as follows:
Father;
Paternal Grandfather, however high;
Brother or other male members of the father’s family;
Mother; and
Maternal uncle, aunt or other maternal relatives.
A remoter guardian for marriage cannot get the minor married off without actually following the
prescribed order and such a marriage will be void.
Shia Law says that only the father or the paternal grand-father however high can be the guardians

for marriage.
The Child Marriage Restraint Act, 1929 provides that a child marriage exists and will be valid
but the guardians and others who conduct it can be punished. A child marriage can be prevented
by an injunction.
Option of Puberty (Khyar-ul-Bulugh)
Under Muslim marriage, a minor on attaining the age of puberty can exercise the option of
puberty wherein the minor can approve or disapprove the marriage contracted by the guardian
who is not the father or the grandfather. If he disapproves, the marriage will dissolve with
immediate effect. If the minor says nothing, it will be presumed that he has approved the
marriage. As per the Shia law, a minor has to approve his marriage upon attaining the age of
puberty.
If the father or the grandfather has contracted marriage fraudulently or negligently, the minor can
repudiate the marriage on attaining the age of puberty. A wife can exercise the right even if the
marriage was contracted by her father or her grandfather. There can be no unreasonable delay in
the exercise of the option of puberty. The husband will lose his right to the option of puberty if
the marriage has been consummated. The wife will also lose her right unless the consummation
has taken place when the wife was still a minor and against her consent.
b) Soundness of Mind
Lunatics can get married during the lucid intervals for they can understand the consequences.
Idiots on the other hand cannot do so. Idiocy refers to an abnormal state of the mind wherein the
person cannot understand the consequences of their actions.
Marriage of insane persons
A person can contract a lawful marriage through a guardian. On recovering reason the said
person can repudiate the marriage.
c) Religion of the parties
The parties can marry any Muslim irrespective of sects or sub sects.
Inter-Religion Marriage
Under Sunni law, a male can marry a Muslim girl of any sect/ sub sect or even a Kitabia girl. A
Kitabia female is one who belongs to a community that originated in a book revealed by the
heavens. Thus, the Jews and the Christians can be wed to a Sunni male. A marriage with a non-
Muslim or non-Kitabia female, the marriage is merely irregular. Under Shia law, a marriage with
a non-Muslim or a Kitabia woman is not permitted. However, a Muta marriage may be
contracted with a Kitabia or Parsi female.
Marriage of a Muslim Female with a non-Muslim male
A Muslim female has no right to contract a marriage with a non-Muslim even if he is a Kitabia
or Parsi. Such a marriage will be void.
The Special Marriage Act, 1954 allows any man or woman to get married to each other whether
a Muslim or a non-Muslim. The succession will be governed under the Indian Succession Act,
1925.
II) FREE CONSENT OF THE PARTIES

If the parties are sane and adults, they can give consent on their own and the marriage will be a
valid one. If the parties or one of them is either a minor or insane, the consent has to be obtained
by the guardian. The consent will be deemed free when it is made at will and given voluntarily
and not under any coercion or fraud.
Coercion is when the party is made to consent under the threat of harm to self or a loved one. All

sects and schools render a marriage under coercion to be void. The Hanafi School is the only
exception. It is believed in the school that three things cannot be undone ever even if committed
as a joke. The three things are marriage, divorce and taking back.
Fraud refers to a dishonest concealment of facts or presentation of false facts or statements to
obtain consent. The moment the party whose consent was obtained by fraud comes to know of
such fraud, he or she may accept the marriage as a legal one or altogether reject it.
Mistake of Fact is when the parties agree but not on the same thing. Consent refers to the
meeting of the minds on the same issue. Where the identity of the bride to be, for example, is
mistaken, the marriage will be void.
III) FORMALITIES IN THE MARRIAGE

Under Muslim law, religious ceremonies are not essential for validating a marriage. The only
essential formalities are that of offer and acceptance.
Offer and Acceptance
Offer or Ijab signifies the willingness of a party to contract marriage with another. The offer
comes in form of a declaration from the boy or his guardian. This offer has to be accepted by the
girl or her guardian. This is referred to as acceptance or Qubool. Though no specific form exists,
the words must show the unequivocal intention of the parties orthe guardians to marry the
parties. It may be oral or written. When written down, it is referred to ass the Kabinnamah.
It is essential that the offer and acceptance occur at the same sitting. Thus, simultaneous actions
must become a joint whole. For example, the groom to be has to send the offer through another.
The bride must accept it in presence of others and then the marriage will be a valid one.
Reciprocity is another important aspect. The acceptance has to be for the proposal word to word,
as it is and without any variations.
Conditional or Contingent Marriage is void even if the event that they are made dependent upon
does in fact occur.
Presence of Witnesses is not essential under the Shia law. Under the Sunni law, the offer and
acceptance needs to two competent witnesses. A Muslim male who is of sound mind and has
attained the age of puberty is a competent single witness. Two sane Muslim females who have
reached the age of puberty can also be treated as competent witnesses. Thus, two Muslim women
along with a competent Muslim male witness will be regarded as competent witnesses for the
marriage. Four females will not be regarded as competent witness. The term ‘witnesses’ does not
refer to any one specifically asked or invited for this purpose only.
Registration under Muslim law is not essential for the validity of the marriage. But certain
enactments provide for registration in the matters of marriage as well as divorces. The acts do so
because then there exists a proof of the marriage. But even then the registration is optional only
and not mandatory. It has also been held in a few cases that if the community custom requires
registration, even if it is in a different format, the marriage has to be registered then. Under the
Indian Christian Marriages Act, 1872, the registration of marriage will be essential if the
marriage is between a Muslim and a Christian.
IV) ABSENCE OF PROHIBITION

Prohibition refers to the impediments or restrictions placed on a person with respect to another
person or an action. The Muslim law provides that the marriage should not be a marriage against
Islam or have any other impediments to it. Absence of prohibition refers to the freedom to marry
a person for they do not stand in a particular relationship to each other. For example, a father

cannot marry his own daughter.
Absolute Prohibitions
They are mandatory and have to be followed or else the marriage will be void. If a person is
within the prohibited relationship of the other party, the marriage cannot take place.
Whether a person is within the prohibited relationship or not can be decided on the following
basis:
a) Consanguinity is relationship by Blood.A Muslim cannot marry one’s own descendant,
however high or descendents of one’ father or mother no matter how low. Similarly brothers and
sisters of one’s ascendants howsoever high can not be married to. However, there is no
prohibition in the marriage of cousin brothers or sisters.
b) Affinity refers to relation by marriage. A Muslim can not marry the ascendant or descendant
of one’s spouse or the spouse of one’s ascendant or descendant.
c) Fosterage refers to the relationship of nurture and feeding. A child is breast fed during its
infancy. If the person providing the feeds is someone other than the biological mother, the infant
or child will still stand in a prohibited relationship with her.
Relative Prohibitions
Where the compliance is not mandatory but non-compliance will be frowned upon. Any
marriage in violation will be only irregular and not void. As per Shia law, the marriage will be
either perfectly valid or void and not irregular.
a) Unlawful Conjunctions
A Muslim can not have two wives at the same time if the wives are related to each other in a way
that would have made their marriage void if they had been of opposite sex. As per the Sunni law,
a marriage against this condition is irregular. The Shia law will treat violation as a void marriage.
The only exception will be if the marriage is with the wife’s consent.
b) Marriage with the fifth wife
If a Muslim man has more than five wives, it is merely irregular with respect to the fifth wife. If
he divorces a wife or a wife dies, the irregularity will be removed with respect to the fifth wife.
c) Marriage with a non-Muslim has been discussed early on in the chapter.
d) Marriage without witnesses is irregular as per Sunni law.
e) Marriage during Iddat is irregular as per the Sunni law and void as per the Shia law.
Iddat refers to the period that a woman undergoes after divorce or the death of her husband. It
literally means counting. This period is essential to ascertain whether the wife/widow is pregnant
or not. During this time, the woman leads a simple and chaste life. The circumstances where she
has to observe Iddat and how are as follows.
1) Dissolution of Marriage by divorce
If the marriage was a valid one and consummated, the duration of Iddat is three monthly courses.
The marriage could have been dissolved through Talaq, Ila, Zihar or under the Dissolution of
Muslim Marriage Act, 1939. If the woman is pregnant, the period of Iddat extends till the
delivery or abortion of the foetus. If the marriage has not been consummated, the woman is not
required to observe Iddat.
2) Divorce of marriage by the death of the husband
If the marriage was a valid one, the period of Iddat extends up to 4 months and 10 days
irrespective of the fact whether the marriage was consummated or not. If the woman was
pregnant at the time, the period of Iddat is on till the delivery or the abortion or the earlier
specified period, which ever is longer.

3) Death if husband during divorce Iddat
If the husband dies during the divorce Iddat, the wife has to start a fresh Iddat of 4 months and
10 days from the date of death of the husband.
4) Commencement of Iddat
The period of Iddat starts from the date of divorce or death and not from the date of the wife
receiving a notice of the same. Thus, if the wife gets the notice of such an even after the
specified period of Iddat has expired, she does not have to observe Iddat.
Under Shia law, Iddat need not be observed if the wife is past the childbearing age or if she has
not even attained puberty.
Valid Retirement refers to when a couple spends time together in private and there is no moral,
social or legal restriction in their intercourse. As per Sunni law, a valid retirement raises the
presumption of consummation of the marriage. Thus, Iddat will have to be observed even if there
was no actual consummation but a valid retirement has been proved. Shia law does not recognise
the concept of valid retirement.
Husband is prohibited from remarrying during iddat if and only if he already has four wives.
Thus, he can not marry another woman till the iddat period is over. In case, such a marriage does
take place, it will be merely irregular and not void.
Miscellaneous Prohibitions
a) Marriage during pilgrimage is void as per Shia law only.
b) Rule of Equality refers to the society’s prohibition on marriage wherein the husband and wife
must be of the same standing and equal therefore. The marriage in violation of this rule can be
invalidated by the Qazi. The Shia law does not recognise this rule.
c) Re-marriage between the divorced couple is allowed provided a procedure if followed. The
divorced wife has to marry another man fulfilling all the requisites of a valid marriage. The
marriage has to be consummated. Then the present husband has to divorce her voluntarily and
the wife has to observe Iddat. Then she may marry her first or former husband. If the procedure
is not followed, the marriage will be merely irregular.
d) Polyandry is not permitted and the second marriage will be void under Shia and Sunni law.
KINDS OF MARRIAGE
Valid Marriage or the Sahih Marriage
Under all schools of Muslim law, the basic requirements have to be fulfilled, i.e. the parties are
competent, the consent of the parties is free consent and the offer and acceptance has been duly
made.
Legal Effect of a Valid Marriage
i) The co habitation of the parties becomes lawful and not immoral;
ii) The children born to a lawfully wedded couple are legitimate and can inherit
accordingly;
iii) For the couple itself, mutual rights of inheritance arise;
iv) The wife can claim dower and has a right to maintenance and simultaneously the
obligation to observe Iddat is bestowed upon her;
v) Prohibited relations are created due to the marriage;
vi) The legal identity or status of a Muslim woman does not blend in with her husband’s
identity after marriage; and
vii) The parties have rights to regulate the movements of each other but they can not
refrain each other from maintaining a relationship with their respective families or visits to then.

Void Marriage or the Batil Marriage
It is an illegal union that exists not in law. Thus, a marriage in violation of absolute prohibitions
or polyandry is a void marriage. Shia law provides a few additional grounds like marriage during
a pilgrimage or marriage with a non-Muslim or a woman observing Iddat.
Legal Effects of a Void Marriage
No mutual rights or obligations are created for the parties in this union. The children born to such
a couple are deemed illegitimate and the wife has no rights to dower or maintenance. The parties
can actually marry any one they wish for this marriage does not exist in law or in fact.
Irregular Marriage or Fasid Marriage
An incomplete marriage where the deviation from procedure or a flaw can be removed, it is
called an irregular marriage. For example, the marriage with the fifth wife or with a woman
observing Iddat will be treated as an irregular marriage.
Legal Effects of an irregular Marriage
The cohabitation is lawful and the children are legitimate and can inherit the properties of their
parents. Mutual rights of inheritance do not arise. After consummation only, can the wife claim
dower. The wife does not have to observe Iddat if the marriage is not consummated.
Temporary marriage or Muta Marriage
It is a unique form of marriage recognised only under the Ithna Asharia School. It is a union for a
particular time only with consideration as a pre-requisite. The roots can be
traced back to the early Arabia, where men had to travel long and far. To confer legitimacy on
the offspring produced during the travels, the Prophet allowed this Muta or enjoyment marriage
for some time. Later, he prohibited it absolutely.
It is essential that the parties must be competent to contract marriage because the guardians
cannot contract for a Muta marriage. The Muslim male can contract Muta marriage with a
Muslim,
Kitabia or Parsi woman but the Muslim woman can contract the same only with Muslim men.
Any number of Muta wives can be contracted with.
The formalities of free consent, offer and acceptance as well as absence of prohibition have to be
followed. The dower must be specified at the time of marriage otherwise the marriage will be
deemed void. The duration of the Muta marriage must be specified or else it will be deemed as a
permanent marriage.
Legal Effects of Temporary Marriage
The cohabitation between parties becomes lawful and consequently even the children are
legitimate children. There will be no mutual rights of inheritance between the husband and wife.
The husband has to pay the whole dower amount if he leaves without finishing the duration of
the marriage. If the wife were to leave before the expiry of the specified time, the husband can
deduct a proportionate amount from her dower.
Maintenance is not available to the wife as a right. There is no divorce in Muta marriages. It ends
on the prescribed time or departure of one of the parties. Iddat has to be observed for two months
if the marriage has been consummated, else it is not needed. If the marriage dissolved due to
death, 4 months and 10 days is the iddat period.
Marriage Agreements are allowed under Muslim law. Even subsequent to the marriage, a couple
can enter into an agreement for regulation of their relationship. If the guardians have made such
agreements when the parties are not competent to do so, the agreement will be binding on them.
Any agreement working against Islam is void. For example a marriage agreement wherein the
wife is not allowed to claim her dower or the couple can stay separately without any reasonable

cause would be illegal.
Marriage agreements are binding on the parties as long as they are legal. For example an
agreement wherein the husband cannot contract another marriage during the subsistence of the
first is a valid agreement. Similarly, an agreement stating that the husband shall not stop the wife
from receiving her relatives at his house at any time is also valid.
Breach of a Marriage Agreement if the agreement was a valid one gives rise to rights of refusal
for restitution, dower related rights and in extreme scenarios, dissolution of the marriage.
RESTITUTION OF CONJUGAL RIGHTS

Restitution of conjugal rights refers to giving back the right to one party to stay with the spouse.
As a couple is entitled to stay together and enjoy each other’s company, if one spouse stays away
without reason, the other can file a suit to move back with the aggrieved party. The courts have
to look into the circumstances of each case and then decide. A wife can claim defences against
her husband’s claim as given below:
a) He falsely accused her of adultery;
b) Her prompt dower was not paid on demand;
c) The husband has been expelled from the caste;
d) Cruelty, physical or emotional, by the husband; and
e) Husband converted from Islam to another religion or used objectionable words against the
Prophet, etc.
Dissolution of marriage
Firm union of the husband and wife is a necessary condition for a happy family life. Islam
therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage
contract should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate
circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way
of divorce . Under Muslim law the divorce may take place by the act of the parties themselves or
by a decree of the court of law. However in whatever manner the divorce is effected it has not
been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of
marriage.
The Prophet declared that among the things which have been permitted by law, divorce is the
worst . Divorce being an evil, it must be avoided as far as possible.But in some occasions this
evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on
their union with mutual affection and love then it is better to allow them to get separated than
compel them to live together in an atmosphere of hatred and disaffection. The basis of divorce in
Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt
of a party) on account of which the parties cannot live together. A divorce may be either by the
act of the husband or by the act of the wife. There are several modes of divorce under the
Muslim law, which will be discussed hereafter.
Modes of Divorce:
A husband may divorce his wife by repudiating the marriage without giving any reason.
Pronouncement of such words which signify his intention to disown the wife is sufficient.
Generally this done by talaaq. But he may also divorce by Ila, and Zihar which differ from talaaq
only in form, not in substance. A wife cannot divorce her husband of her own accord. She can
divorce the husband only when the husband has delegated such a right to her or under an

agreement. Under an agreement the wife may divorce her husband either by Khula or Mubarat.
Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of
adultery, insanity or impotency of the husband. But the Dissolution of Muslim Marriages Act
1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce
decree passed by the order of the court.
There are two categories of divorce under the Muslim law:

1.) Extra judicial divorce, and
2.) Judicial divorce
The category of extra judicial divorce can be further subdivided into three types, namely,
• By husband- talaaq, ila, and zihar.
• By wife- talaaq-i-tafweez, lian.
• By mutual agreement- khula and mubarat.
The second category is the right of the wife to give divorce under the Dissolution of Muslim
Marriages Act 1939.
Talaaq: Talaaq in its primitive sense means dismission. In its literal meaning, it means “setting
free”, “letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from
the bondage of marriage and not from any other bondage. In legal sense it means dissolution of
marriage by husband using appropriate words. In other words talaaq is repudiation of marriage
by the husband in accordance with the procedure laid down by the law.
The following verse is in support of the husband’s authority to pronounce unilateral divorce is
often cited:
Men are maintainers of women, because Allah has made some of them to excel others and
because they spend out of their property (on their maintenance and dower) . When the husband
exercises his right to pronounce divorce, technically this is known as talaaq. The most
remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis and the Shias
recognize it differing only in some details. In Muslim world, so widespread has been the talaaq
that even the Imams practiced it . The absolute power of a Muslim husband of divorcing his wife
unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of
intoxication, and without recourse to the court, and even in the absence of the wife, is recognized
in modern India. All that is necessary is that the husband should pronounce talaaq; how he does
it, when he does it, or in what he does it is not very essential.
In Hannefa v. Pathummal, Khalid, J., termed this as “monstrosity” . Among the Sunnis, talaaq
may be express, implied, contingent constructive or even delegated. The Shias recognize only the
express and the delegated forms of talaaq.
Conditions for a valid talaaq:

1) Capacity: Every Muslim husband of sound mind, who has attained the age of puberty, is
competent to pronounce talaaq. It is not necessary for him to give any reason for his
pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq by a
minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic

then talaaq pronounced by him during “lucid interval” is valid. The guardian cannot pronounce
talaaq on behalf of a minor husband. When insane husband has no guardian, the Qazi or a judge
has the right to dissolve the marriage in the interest of such a husband.
2) Free Consent: Except under Hanafi law, the consent of the husband in pronouncing talaaq
must be a free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion,
undue influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage.
Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is void

even under the Hanafi law.
Shia law:
Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under
compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.
3) Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be simply
uttered by the husband or he may write a Talaaqnama. No specific formula or use of any
particular word is required to constitute a valid talaaq. Any expression which clearly indicates
the husband’s desire to break the marriage is sufficient. It need not be made in the presence of
the witnesses.
According to Shias, talaaq, must be pronounced orally, except where the husband is unable to
speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law. Here
talaaq must be pronounced in the presence of two witnesses.
4) Express words: The words of talaaq must clearly indicate the husband’s intention to dissolve
the marriage. If the pronouncement is not express and is ambiguous then it is absolutely
necessary to prove that the husband clearly intends to dissolve the marriage.
Express Talaaq (by husband):

When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is
express. The express talaaq, falls into two categories:
• Talaaq-i-sunnat,
• Talaaq-i-biddat.
Talaaq-i-sunnat has two forms:

• Talaaq-i-ahasan (Most approved)
• Talaaq-i-hasan (Less approved).
Talaaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.
The ahasan talaaq: consists of a single pronouncement of divorce made in the period of tuhr
(purity, between two menstruations), or at any time, if the wife is free from menstruation,
followed by abstinence from sexual intercourse during the period if iddat. The requirement that

the pronouncement be made during a period of tuhr applies only to oral divorce and does not
apply to talaaq in writing. Similarly, this requirement is not applicable when the wife has passed
the age of menstruation or the parties have been away from each other for a long time, or when
the marriage has not been consummated. The advantage of this form is that divorce can revoked
at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be
prevented. The revocation may effected expressly or impliedly.
Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says I
have retained thee” the divorce is revoked. Resumption of sexual intercourse before the
completion of period of iddat also results in the revocation of divorce.
The Raad-ul-Muhtar puts it thus: “It is proper and right to observe this form, for human nature is
apt to be mislead and to lead astray the mind far to perceive faults which may not exist and to
commit mistakes of which one is certain to feel ashamed afterwards”
The hasan talaaq:

In this the husband is required to pronounce the formula of talaaq three time during three
successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be
made after the interval of a month or thirty days between the successive pronouncements. When
the last pronouncement is made, the talaaq, becomes final and irrevocable. It is necessary that
each of the three pronouncements should be made at a time when no intercourse has taken place
during the period of tuhr. Example: W, a wife, is having her period of purity and no sexual
intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is the
first pronouncement by express words. Then again, when she enters the next period of purity,
and before he indulges in sexual intercourse, he makes the second pronouncement. He again
revokes it. Again when the wife enters her third period of purity and before any intercourse takes
place H pronounces the third pronouncement. The moment H makes this third pronouncement,
the marriage stands dissolved irrevocably, irrespective of iddat.
Talaaq-i-Biddat:
It came into vogue during the second century of Islam. It has two forms: (i) the triple declaration
of talaaq made in a period of purity, either in one sentence or in three, (ii) the other form
constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even
otherwise. This type of talaaq is not recognized by the Shias. This form of divorce is condemned.
It is considered heretical, because of its irrevocability.
Ila:
Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila
and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have
sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of
four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the
husband resumes cohabitation within four months, Ila is cancelled and the marriage does not
dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the

court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial
divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for
restitution of conjugal rights against the husband.
Zihar:
In this mode the husband compares his wife with a woman within his prohibited relationship e.g.,
mother or sister etc. The husband would say that from today the wife is like his mother or sister.
After such a comparison the husband does not cohabit with his wife for a period of four months.
Upon the expiry of the said period Zihar is complete.
After the expiry of fourth month the wife has following rights:
(i) She may go to the court to get a decree of judicial divorce
(ii) She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the
wife cannot seek judicial divorce. It can be revoked if:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty people, or,
(iii) He frees a slave.
According to Shia law Zihar must be performed in the presence of two witnesses.
Divorce by mutual agreement:

Khula and Mubarat: They are two forms of divorce by mutual consent but in either of them, the
wife has to part with her dower or a part of some other property. A verse in the Holy Quran runs
as: “And it not lawful for you that ye take from women out of that which ye have given them:
except (in the case) when both fear that they may not be able to keep within the limits (imposed
by Allah), in that case it is no sin for either of them if the woman ransom herself.” The word
khula, in its original sense means “to draw” or “dig up” or “to take off” such as taking off one’s
clothes or garments. It is said that the spouses are like clothes to each other and when they take
khula each takes off his or her clothes, i.e., they get rid of each other.
In law it is said is said to signify an agreement between the spouses for dissolving a connubial
union in lieu of compensation paid by the wife to her husband out of her property. Although
consideration for Khula is essential, the actual release of the dower or delivery of property
constituting the consideration is not a condition precedent for the validity of the khula. Once the
husband gives his consent, it results in an irrevocable divorce. The husband has no power of
cancelling the ‘khul’ on the ground that the consideration has not been paid. The consideration
can be anything, usually it is mahr, the whole or part of it. But it may be any property though not
illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the
proposal may emanate from either side. In mubarat both, the husband and the wife, are happy to
get rid of each other . Among the Sunnis when the parties to marriage enter into a mubarat all
mutual rights and obligations come to an end.

The Shia law is stringent though. It requires that both the parties must bona fide find the marital
relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down,
but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed
by the word talaaq, otherwise no divorce would result. They also insist that the pronouncement
must be in Arabic unless the parties are incapable of pronouncing the Arabic words. Intention to
dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is
irrevocable. Other requirements are the same as in khula and the wife must undergo the period of
iddat and in both the divorce is essentially an act of the parties, and no intervention by the court
is required.
Divorce by wife:
The divorce by wife can be categorized under three categories:
(i) Talaaq-i-tafweez
(ii) Lian
(iii) By Dissolution of Muslim Marriages Act 1939.
Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The
Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other
person. He may delegate the power absolutely or conditionally, temporarily or permanently . A
permanent delegation of power is revocable but a temporary delegation of power is not. This
delegation must be made distinctly in favour of the person to whom the power is delegated, and
the purpose of delegation must be clearly stated. The power of talaaq may be delegated to his
wife and as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon
in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now
beginning to be fairly common in India”.
This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v.
Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay
certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the
house and conferred a power to pronounce divorce on his wife. The husband left his father-in-
law’s house without paying the amount. The wife exercised the right and divorced herself. It was
held that it was a valid divorce in the exercise of the power delegated to her. Delegation of power
may be made even in the post marriage agreements. Thus where under an agreement it is
stipulated that in the event of the husband failing to pay her maintenance or taking a second wife,
the will have a right of pronouncing divorce on herself, such an agreement is valid, and such
conditions are reasonable and not against public policy . It should be noted that even in the event
of contingency, whether or not the power is to be exercised, depend upon the wife she may
choose to exercise it or she may not. The happening of the event of contingency does not result
in automatic divorce.
Lian:
If the husband levels false charges of unchastity or adultery against his wife then this amounts to
character assassination and the wife has got the right to ask for divorce on these grounds. Such a
mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery

made by the husband which, if false, would entitle the wife to get the wife to get the decree of
divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour
and the husband hits back an allegation of infidelity against her, then what the husband says in
response to the bad behaviour of the wife, cannot be used by the wife as a false charge of
adultery and no divorce is to be granted under Lian. This was held in the case of Nurjahan v.
Kazim Ali by the Calcutta High Court.
Dissolution of Muslim Marriages Act 1939:

Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on
17th April 1936. It however became law on 17th March 1939 and thus stood the Dissolution of
Muslim Marriages Act 1939.
Section 2 of the Act runs thereunder:

A woman married under Muslim law shall be entitled to obtain a decree for divorce for the
dissolution of her marriage on any one or more of the following grounds, namely:-
• That the whereabouts of the husband have not been known for a period of four years: if the
husband is missing for a period of four years the wife may file a petition for the dissolution of
her marriage. The husband is deemed to be missing if the wife or any such person, who is
expected to have knowledge of the husband, is unable to locate the husband. Section 3 provides
that where a wife files petition for divorce under this ground, she is required to give the names
and addresses of all such persons who would have been the legal heirs of the husband upon his
death. The court issues notices to all such persons appear before it and to state if they have any
knowledge about the missing husband. If nobody knows then the court passes a decree to this
effect which becomes effective only after the expiry of six months. If before the expiry, the
husband reappears, the court shall set aside the decree and the marriage is not dissolved.
• That the husband has neglected or has failed to provide for her maintenance for a period of two
years: it is a legal obligation of every husband to maintain his wife, and if he fails to do so, the
wife may seek divorce on this ground. A husband may not maintain his wife either because he
neglects her or because he has no means to provide her maintenance. In both the cases the result
would be the same. The husband’s obligation to maintain his wife is subject to wife’s own
performance of matrimonial obligations. Therefore, if the wife lives separately without any
reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband’s failure
to maintain her because her own conduct disentitles her from maintenance under Muslim law.
• That the husband has been sentenced to imprisonment for a period of seven years or
upwards: the wife’s right of judicial divorce on this ground begins from the date on which the
sentence becomes final. Therefore, the decree can be passed in her favour only after the expiry of
the date for appeal by the husband or after the appeal by the husband has been dismissed by the
final court.
• That the husband has failed to perform, without reasonable cause, his marital obligations for a
period of three years: the Act does define ‘marital obligations of the husband’. There are several
marital obligations of the husband under Muslim law. But for the purpose of this clause
husband’s failure to perform only those conjugal obligations may be taken into account which

are not included in any of the clauses of Section 2 of this Act.
• That the husband was impotent at the time of the marriage and continues to be so: for getting a
decree of divorce on this ground, the wife has to prove that the husband was impotent at the time
of the marriage and continues to be impotent till the filing of the suit. Before passing a decree of
divorce of divorce on this ground, the court is bound to give to the husband one year to improve
his potency provided he makes an application for it. If the husband does not give such
application, the court shall pass the decree without delay. In Gul Mohd. Khan v. Hasina the wife
filed a suit for dissolution of marriage on the ground of impotency. The husband made an
application before the court seeking an order for proving his potency. The court allowed him to
prove his potency.
• If the husband has been insane for a period of two years or is suffering from leprosy or a
virulent veneral disease: the husband’s insanity must be for two or more years immediately
preceding the presentation of the suit. But this act does not specify that the unsoundness of mind
must be curable or incurable. Leprosy may be white or black or cause the skin to wither away. It
may be curable or incurable. Veneral disease is a disease of the sex organs. The Act provides that
this disease must be of incurable nature. It may be of any duration. Moreover even if this disease
has been infected to the husband by the wife herself, she is entitled to get divorce on this ground.
• That she, having been given in marriage by her father or other guardian before she attained the
age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided
that the marriage has not been consummated;
• That the husband treats her with cruelty, that is to say-

(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct
does not amount to physical illtreatment, or
(b) Associates with women of ill-repute or leads an infamous life, or
(c) Attempts to force her to lead an immoral life, or
(d) Disposes of her property or prevents her exercising her legal rights over it, or
(e) Obstructs her in the observance of her religious profession or practice, or
(f) If he has more than one wives, does not treat her equitably in accordance with the injunctions
of the Holy Quran.
In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science graduate and she wanted to
take admission in a college for medical studies. She needed money for her studies. Syed
Ziaudddin promised to give her money provided she married him. She did. Later she filed for
divorce for non-fulfillment of promise on the part of the husband. The court granted her divorce
on the ground of cruelty. Thus we see the court’s attitude of attributing a wider meaning to the
expression cruelty. In Zubaida Begum v. Sardar Shah, a case from Lahore High Court, the
husband sold the ornaments of the wife with her consent. It was submitted that the husband’s
conduct does not amount to cruelty.
In Aboobacker v. Mamu koya, the husband used to compel his wife to put on a sari and see
pictures in cinema. The wife refused to do so because according to her beliefs this was against
the Islamic way of life. She sought divorce on the ground of mental cruelty. The Kerela High

Court held that the conduct of the husband cannot be regarded as cruelty because mere departure
from the standards of suffocating orthodoxy does not constitute un-Islamic behaviour.
In Itwari v. Asghari, the Allahabad High Court observed that Indian Law does not recognize
various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test of
cruelty is based on universal and humanitarian standards; that is to say, conduct of the husband
which would cause such bodily or mental pain as to endanger the wife’s safety or health.
Irretrievable Breakdown:
Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim
Law through the judicial interpretation of certain provisions of Muslim law. In 1945 in Umar
Bibi v. Md. Din , it was argued that the wife hated her husband so much that she could not
possibly live with him and there was total incompatibility of temperaments. On these grounds the
court refused to grant a decree of divorce. But twenty five years later in Neorbibi v. Pir Bux,
again an attempt was made to grant divorce on the ground of irretrievable breakdown of
marriage. This time the court granted the divorce. Thus in Muslim law of modern India, there are
two breakdown grounds for divorce: (a) non-payment of maintenance by the husband even if the
failure has resulted due to the conduct of the wife, (b) where there is total irreconcilability
between the spouses.
Conclusion:
In contrast to the Western world where divorce was relatively uncommon until modern times,
and in contrast to the low rates of divorce in the modern Middle East, divorce was a common
occurrence in the pre-modern Muslim world. In the medieval Islamic world and the Ottoman
Empire, the rate of divorce was higher than it is today in the modern Middle East. In 15th
century Egypt, Al-Sakhawi recorded the marital history of 500 women, the largest sample on
marriage in the Middle Ages, and found that at least a third of all women in the Mamluk
Sultanate of Egypt and Syria married more than once, with many marrying three or more times.
According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in
divorce. In the early 20th century, some villages in western Java and the Malay peninsula had
divorce rates as high as 70%.In practice in most of the Muslim world today divorce can be quite
involved as there may be separate secular procedures to follow as well.
Usually, assuming her husband demands a divorce, the divorced wife keeps her mahr, both the
original gift and any supplementary property specified in the marriage contract. She is also given
child support until the age of weaning, at which point the child's custody will be settled by the
couple or by the courts. Women's right to divorce is often extremely limited compared with that
of men in the Middle East. While men can divorce their spouses easily, women face a lot of legal
and financial obstacles. For example, in Yemen, women usually can ask for divorce only when
husband's inability to support her life is admitted while men can divorce at will. However, this
contentious area of religious practice and tradition is being increasingly challenged by those
promoting more liberal interpretations of Islam.

Unit-III: Adoption, Maintenance of Guardianship
Adoption:
The Hindu Adoptions and Maintenance Act were enacted in India in 1956 as part of the Hindu
Code Bills. The
other legislations enacted during this time include the Hindu Marriage Act (1955), the Hindu
Succession Act (1956), and the Hindu Minority and Guardianship Act (1956). All of these acts
were put forth under the leadership of Jawaharlal Nehru, and were meant to codify and
standardize the current Hindu legal tradition. The Adoptions and Maintenance Act of 1956 dealt
specifically with the legal process of adopting children by a Hindu adult, as well as the legal
obligations of a Hindu to provide "maintenance" to various family members including, but not
limited to, their wife or wives, parents, and in-laws.
Application
This Act applies to Hindus and all those considered under the umbrella term of Hindus, which
includes:
• a Hindu by religion in any of its forms or development;
• a Buddhist, Jain or Sikh;
• a child legitimate or illegitimate whose parents are Hindus, Buddhists, Jains or Sikhs;
• a child legitimate or illegitimate one of whose parents are Hindus, Buddhists, Jains or Sikhs
and has been so brought up;
• an abandoned child, legitimate or illegitimate of unknown parentage brought up as a Hindu,
Buddhist, etc.;
and
• a convert to the Hindu, Buddhist, Jain or Sikh religion.
Persons who are Muslims, Christians, Parsis or Jews are excluded from this definition.
The Act does not also apply to adoptions that took place prior to the date of enactment. However,
it does apply
to any marriage that has taken place before or after the Act had come into force. Moreover, if the
wife is not a Hindu then the husband is not bound to provide maintenance for her under this Act
under modern Hindu Law.
Who can adopt?
Under this Act only Hindus may adopt subject to their fulfillment of certain criteria. The first of
these asserts
that the adopter has the legal right to (under this Act that would mean they are a Hindu). Next,
they have to have the capacity to be able to provide for the adopted child. Thirdly the child must
be capable of being adopted. Lastly, compliance with all other specifications (as outlined below)
must be met to make the adoption valid.
Men can adopt if they have the consent(s) of their wife or of all of their wives. The only way of
getting around
obtaining the permission of the wife or of the wives is if she or if they are unsound, if they have
died, if they have completely and finally renounced the world, and if they have ceased to be a
Hindu. Men who are unmarried can adopt as well as long as they are not a minor. However, if a

man were to adopt a daughter, the man must be twenty four years of age or older.
Women can adopt if they have the consent of their husband. Again, the only way of getting
around obtaining
the permission of the husband is if he is unsound, has died, has completely and finally renounced
the world, and has ceased to be a Hindu. Women who are unmarried can adopt as well as long as
they are not a minor. However, if a woman were to adopt a son, the woman must be twenty four
years of age or older. If the child is adopted and there are more than one wife living in the
household, then the senior wife is classified as the legal mother of the adopted child.
Who can be adopted?
The adopted child can be either male or female. The adopted child must be fall under the Hindu
category. The
adoptee needs also to be unmarried; however, if the particular custom or usage is applicable to
the involved parties then the adoptee can be married. The child cannot be the age of sixteen or
older, unless again it is custom or the usage is applicable to the involved parties. An adoption can
only occur if there is not a child of the same sex of the adopted child still residing in the home. In
particular, if a son were to be adopted then the adoptive father or mother must not have a
legitimate or adopted son still live in the house.
Legal Implications for an Adopted Child
From the date of the adoption, the child is under the legal guardianship of the new adopted
parent(s) and thus
should enjoy all the benefits from those family ties. This also means that this child, therefore, is
cut off from all legal benefits (property, inheritance, etc.) from the family who had given him or
her up for adoption.
Adoption is recognized by the Hindus and is not recognized by Muslims, Christian and Parsis.
Adoption in the
Hindus is covered by The Hindu Adoptions Act and after the coming of this Act all adoptions
can be made in accordance with this Act. It came into effect from 21st December, 1956. Prior to
this Act only a male could be adopted, but the Act makes a provision that a female may also be
adopted. This Act extends to the whole of India except the state of Jammu and Kashmir. It
applies to Hindus, Buddhists, Jainas and Sikhs and to any other person who is not a Muslim,
Christian, Parsi by religion.
(c)Maintenance
Maintenance of a Wife
A Hindu wife is entitled to be provided for by her husband throughout the duration of her
lifetime. Regardless
of whether the marriage was formed before this Act was instated or after, the Act is still
applicable. The only way the wife can null her maintenance is if she renounces being a Hindu
and converts to a different religion, or if she commits adultery.
The wife is allowed to live separately from her husband and still be provided for by him. This
separation can be

justified through a number of different reasons, including if he has another wife living, if he has
converted to a different religion other than Hinduism, if he has treated her cruelly, or even has a
violent case of leprosy. If the wife is widowed by her late husband, then it is the duty of the
father-in-law to provide for her. This legal obligation only comes into effect if the widowed wife
has no other means of providing for herself. If she has land of her own, or means of an income
and can maintain herself then the father-in-law is free from obligation to her. Additionally, if the
widow remarries then her late husband's father-in-law does is not legally bound by this Act
anymore as well.
Maintenance of a Child or of Aged Parent(s)
Under this Act, a child is guaranteed maintenance from his or her parents until the child ceases to
be a minor.
This is in effect for both legitimate and illegitimate children who are claimed by the parent or
parents. Parents or infirmed daughters, on the other hand, must be maintained so long as they are
unable to maintain for themselves
Amount of Maintenance Provided
The amount of maintenance awarded, if any, is dependent on the discretion of the courts.
Particular factors
included in the decision process include the position or status of the parties, the number of
persons entitled to maintenance, the reasonable wants of the claimants, if the claimant is living
separately and if the claimant is justified in doing so, and the value of the claimant's estate and
income. If any debts are owed by the deceased, then those are to be paid before the amount of
maintenance is awarded or even considered.
(d)Maintenance of a divorced Muslim wife
Maintenance of a divorced Muslim wife has always been a highly controversial and debatable
social issue. The
issue of maintenance of Muslim wife has been a very difficult path as compared to Hindu wife.
This issue has been subject matter of big fight by both Muslim fundamentalist and Hindu right
wing.
Now coming to the legal technicalities of the issue, I would like to highlight the loop holes of
statutes and the helplessness of the Legislature. The legal shortcoming of the maintenance law
for Muslim Wife was used as a weapon by husbands to protect themselves from the liability of
maintaining their wives. Prior to amendment, as per section 125 Cr.P.C.( Criminal Procedure
Code), maintenance is granted only to the 'Wife' and therefore the husband started taking defense
that the divorced women is no more his wife and henceforth not entitled for any maintenance.
Then the legislature amended the section and inserted an explanation which clarifies that 'wife'
includes divorced wives. However, husbands used another shield to protect themselves from the
liability of maintaining their wife which was available under section 127(3) Cr.P.C. (Criminal
Procedure Code), which
says that if women get any customary payment after divorce then husband will not be
responsible for her maintenance. In numerous cases, it was held that 'Maher' or 'Dower' is the
sum mentioned under sec 127 (3). Then the next stage came in, when the court recognized
Dower as the sum mentioned under the aforesaid clause
but emphasized that such amount should be fair & reasonable as observed in Bai Fatima vs. Ali
Hussain 1979 which find further approval of the Supreme Court in Fazlunbi vs. Khaderwali 1980
(SC) so as to protect Muslim women from destitution.
Then another stage came when the court held that no matter whether the dower is paid or not,

husband is liable to maintain his wife and held that Dower is not included in clause 3 of sec 127
and the court also mentioned verses of the HOLY Quran from chapter 2 verse 241 and 242 to
signify that it's a religious duty of a Muslim husband to provide reasonable maintenance to his
divorced wife. This all happened in the infamous case of Shahbano Begum v/s Mohd Ahmed
Khan (AIR 1986: 945 sc)
However, this led to wide spread demonstrations and controversy which pressurized then Rajiv
Gandhi government to pass Muslim Women Protection of Rights on Divorce Act (1986). Once
again, this legislation failed to address the real issue. This law created new confusion and
contradiction because of loose drafting amongst the views of different High Courts. The most
important section relating to controversy was sec 3 which used the word "within the iddat period
".The controversy was on its peak between Gujarat and Andhra High Courts in the cases of Arab
Bail and Fathimunnissa Begum.
The constitutionality of this act was challenged in 2000 in the case of: Though there is no fixed
formula to arrive at the calculation of maintenance. Yet, the figure hovers around 30% to 40% of
the salary/income. Danial Latifi Vs Union Of India Air 2000 (Sc) It was held that sec 3 of
Muslim Women Protection of Rights on Divorce Act entitles a Muslim women for maintenance
even beyond IDDAT period and the controversy was set aside once and for all.
Conclusion:
By virtue of judicial pronouncements and other steps, rights of Muslim women has been restored
but it will become fruitful only when under lying thinking are changed, the Muslim women
should emancipate themselves educationally, economically and socially for their well being only
and then they can understand their rights and worth and thereafter the social upliftment of the
whole community is possible. We should always remember that mother is the first teacher and
mentor of his child. It is a historical fact that no society ever lived in peace until their women
folk are at peace.
(e)Maintenance under the Code of Criminal Procedure, 1973
Introduction:
The advent of the nuclear family, due to globalization and consumerism, ensured the
disintegration of the Joint Family system which was prevalent for several Yugas. The
dismantling of the Joint family resulted in withdrawal of the support system which acted as a
buffer to weather difficult periods during the early phase of marital life. Consequently, a couple
had to find both the psychological and financial support within and by dint of hard work
respectively which invariably culminated in a stressful life. The Consequence is the breakdown
of family bonding resulting in divorce. This arises due to incompatibility between spouses. The
children also have to endure the psychological conflict due to differences between parents. The
wife and the children required sustenance and the law stepped into ensure they are not subjected
to distress.
Genesis
According to Black's legal Dictionary the origin of the expression "Alimony" lies in the Latin
Word "Alimonia" which means sustenance. It has not been defined in any of the statutes in India.
Sustenance stems from the common Law right of the Divorced wife to support by her husband.
"Alimony in Gross" or "in lumpsum" is in the nature of final property settlement. However,
Alimony in strict sense contemplates payment of money at regular intervals. It also includes
permanent and pendatelite spousal support. Generally it is restricted to money, unless otherwise
authorized by statute.
It is a term used to describe the allowance made to married women when she is under necessity

to live apart from her spouse. The object of the provision is the prevention of vagrancy and to
provide the neglected wife and children sustenance in their distress. It is consistent with Article
15(3) and 39 of the Constitution of India. Bala Nair vs. Bhavani Ammal (1987 Cr.L.J.399).
Statutory Provision:
The Power of the Court to order maintenance, when proceedings are pending for matrimonial
relief has been provided under different statutes. Section 24 of the Hindu Marriage Act; Section
36 of the Special Marriage Act and the Divorce Act and Section 39 of the Parsi Marriage Act
speak about alimony pendatelite. Section 25 of the Hindu Marriage Act, section 40 of the Parsi
Marriage Act and Section 37 of the Special Marriage Act and Divorce Act, provides for
permanent alimony and maintenance. Section 85 of the Mohamedan Law states that the wife
may get maintenance in accordance with the provisions of Section 125 of the Code of Criminal
Procedure. This is to ensure that a derelict Muslim husband cannot take umbrage under his
personal law in order to defeat these statutory obligations under the code of Criminal procedure.
Ameer Amanullah Vs. P.Maniam Beevi(1985 (1) MLJ (Cri) 164 Code of Criminal Procedure:
Section 125 of the Code of Criminal Procedure reads as follows:
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority,
where such child is, by reason of any physical or mental abnormality or injury unable to maintain
itself, or
(d) his father or mother, unable to maintain himself or herself,
A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to
make a monthly allowance for the maintenance of his wife or such child, father or mother, at
such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct:
This Section was introduced, to safeguard the wife, legitimate and illegitimate child (not being a
married daughter) who has attained majority, where such child by reason of any physical or
mental abnormality or injury unable to maintain itself or a person's father or mother unable to
maintain himself or herself.
From the reading of the section it is clear that a person is bound to maintain his wife, children
and aged parents, who are unable to maintain themselves. While ordering maintenance the Court
has to consider the income and the status of the person who is liable to pay maintenance and also
the income and status of the person claiming maintenance. Though a wife can file a suit for
maintenance in a Civil Court, this Section is provided to get maintenance as early as possible.
For a person, food, clothing and shelter is essential. While ordering maintenance, Court has to
consider whether the wife is living separately on reasonable grounds. The wife can refuse to live
with her husband if he lives with a mistress. No wife shall be entitled to receive maintenance
from her husband under this Section if she is living in adultery, or husband and wife are living
separately by mutual consent. The petitioner can file any number of petitions under Section 125
Cr.P.C for enhancement of Maintenance when the circumstances change. The Court after
considering the change of circumstances can enhance the maintenance accordingly. Originally a
magistrate can order Rupees 500 per month as maximum maintenance. After the recent
amendment maintenance exceeding Rs.500 can be ordered according to the circumstances of
each case
Wives right to maintenance is not absolute under 125 of the Code. It is circumscribed by the fact

that she is unable to maintain herself and further the husband having sufficient means neglected
or refused to maintain her. No doubt, there is a clear distinction between the locus standi or
competence to file a petition for maintenance under Section 125 of The Code by any of the
persons illustrated in the Section and their being entitled on merits to particular amounts of
maintenance there under. However, the premises for both is essentially the existence or
otherwise of their separate income or means of support besides other factors stipulated in the
Section. K.M.Nagammalappa vs. B.J.Lalitha, 1985 Cr.L.J 1706 (KANT) See also Hyma
Krishnadass vs. M.Krishnadass, 1985 (2) CRIMES 661 (KER), Habeebulla vs. Shakella, 1984
Cr.L.J 1062.
Quantum of Maintenance Right of Maintenance under Hindu Law is a substantive right and a
continuing right and it is variable from time to time. The Family Court or the District Court may
in satisfaction of change of circumstances modify, recind or enhance the maintenance allowance.
On proof of change and circumstance, the family Court has jurisdiction under Section 127
Cr.P.C. to revise the earlier order passed under Section 125 of the Code. Uma vs. Lalit Kumar
Sharma (1999 (1) DMC 83). In Ekradeshwari Vs. Homeswar (AIR 1929 PC 128), the privy
council held, that fixation of maintenance depends upon a number of factors and the same must
be determined on the facts of a particular case. The said ruling was rendered prior to the
enactment of Hindu Adoption and Maintenance Act 1956.
The Apex Court in Kulbhusan vs. Rajkumari (AIR 1971 SC 234) approved the said observation
by the Privy Council under Section 23(2) of the said Act. See also K.Sivakumar vs. K.Sambasiva
Rao (2001 (1) DMC 75) and G.C.Gosh Vs.Sushmita Gosh (2001 (1) DMC 469). The wife is
entitled to have the same status as her husband. She must have the necessary medical facility,
food, clothing etc. While fixing the amount of maintenance, the Court should also take into
account considering the inflation and cost of living and his obligation to support the minor child
and his parents. S.Jayanthi Vs.S.Jayaraman (1998(1) DMC 699).
There is no fixed Rule, while arriving at the Quantum, in respect of permanent Alimony. It is
only the independent income of the payee which is to be considered. While granting relief of
permanent alimony, the court has to keep in view the following considerations:
i) Husband's own income.
ii) Income of the Husband from other property;
iii) Income of the Applicant.
iv) Conduct of parties.
Ramlal vs. Surender Kaur (1995 (1) (iv) L.J 204 (Punjab) In Vanaja Vs. Gopa (1992 (1) DMC
347) the High Court Madras has held that the fact that the wife has already got maintenance
under Section 125 Cr.P.C. is no bar to her getting alimony pendante lite under Section 24 of the
Hindu Marriage Act.
Enforcement:
After ordering maintenance if the respondent husband fails or refuses to pay the maintenance
without sufficient cause the magistrate can issue warrant for levying the amount due in the
manner provided for levying fines and may also sentence such person for the whole or any part
of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment
for a term which may extend to one month or until payment if sooner made. Provided that no
warrant shall be issued for the recovery of any amount due under this Section unless applications
made to the Court to levy such amount within a period of one year it became due. Proceedings
under Section 125 Cr.P.C are considered to be of a civil nature. Though they are wholly

governed by the procedure of the code of criminal procedure, they are really of civil nature, but
are dealt with summarily in a Criminal Court for the purpose of speedy disposal on grounds of
convenience and social order. Pandharinadh

Sakharam Thuve vs. Surekha Pandharinadh Thuve, 1999 Cr.L.J 2919 (BOM). It is to be borne in
mind that a petition filed under Section 125 Cr.P.C is not a complaint and the person arrayed as
the opposite party is not an accused. Following the decision of the Supreme Court in AIR 1963
SC 1521, which held that instant proceedings under 125 Cr.P.C is a proceedings of a civil nature
in which the Magistrate can invoke the inherent powers to recall his earlier order finally
disposing a proceedings of this nature, provided, sufficient grounds are shown. S K.Alauddin vs.
Khadizebb, 1991 Cr.L.J 20.
Hindu Law Text enjoins upon the husband a mandatory duty to maintain his wife. The duty to
maintain is dehorns his possession of any property. A decree for maintenance creates a charge on
his property. In Raghavan vs. Nagammal (AIR 1979 Mad 200) the High Court of Madras held
that an order of maintenance, in term of Section 39 of the Transfer of property Act, creates a
charge on the property Act. This principle was extended to an order passed under Section 125
Cr.P.C. in Diwakaran vs. Barghavy Chellamma (1985 (2) DMC 486).
Apart From the above, Section 125 (3) of the Cr. P.C. r/w Section 128 of the Cr.P.C. empowers
the Magistrate to enforce the execution in case of default by the person ordered to pay
maintenance. Section 51 of the C.P.C. can also be utilized for enforcing the order of maintenance
Validity of Marriage
Validity of the marriage for the purpose of summary proceedings under Section 125 Cr.P.C is to
be determined on the basis of the evidence brought on record by the parties. The standard of
proof of a marriage in such proceedings is not as strict as is required in a trial of offences under
Section 494 IPC. If the claimant in proceedings under Section 125 of The Code succeeds in
showing that she and the respondent have lived together as husband and wife the Court can
presume that they are legally wedded spouses, and in such a situation the party who denies the
marital status can rebut the presumption. Undisputedly marriage procedure followed in the
temple, that too, in the presence of the idol of Lord Jaganath, which is worshiped by both the
parties is considered to be valid. Once it is admitted that the marriage procedure was followed
then it is not necessary to further probe in to whether the said procedure was complete as per the
Hindu rites in the proceedings under Section 125 Cr.P.C. Dwarika Prasad Satpathi Vs. Bityut
Prava Dixit, (1999) 7 SCC 675 1999 (4) crimes 206 = 2000 Cr.L.J 1, See also Raju Vs. Pushpa
Devi, 1999 Cr.L.J 2294.
The High Court of Bombay in K.M. Vyas vs. R.K.Vyas (AIR 1999 Bom 127) held that the
second wife is entitled to get maintenance under Section 24 of the Hindu Marriage Act even if
the Second Marriage of the husband is void. In Devinder Singh Vs. Jaspal Kaur (1999 (1) MDM
(535) the Punjab and Haryana High Court held that the Right to claim maintenance under
Section 25 of the Hindu Marriage Act is not defeated even where the marriage is dissolved by a
Decree of Nullity. In Malika Vs. P.Kulandai (2001 (1) DMC 354) the court held that when the
husband contracted the Second marriage by suppressing the fact of the first marriage, the wife
and child are entitled to maintenance under Section 125 of the Cr.P.C.
Guardianship
Guardianship Under Hindu Law
The Dharmashastras did not deal with the law of guardianship. During the British regime the law
of guardianship was developed by the courts. It came to be established that the father is the
natural guardian of the children and after his death, mother is the natural guardian of the children

and none else can be the natural guardian of minor children. Testamentary guardians were also
introduced in Hindu law: It was also accepted that the supreme guardianship of the minor
children vested in the State as parens patrie and was exercised by the courts. The Hindu law of
guardianship of minor children has been codified and reformed by the Hindu Minority and
Guardianship Act, 1956. The subject may be discussed under the following heads : (i)
Guardianship of person of minors, (u) Guardianship of the property of minors, and (iii) De facto
guardians, and (iv) guardians by affinity.
Guardianship of the person

Minor Children
Under the Hindu Minority and Guardianship Act, 1956, S. 4(b), minor means a person who has
not completed the age of eighteen years. A minor is considered to be a person who is physically
and intellectually imperfect and immature and hence needs someone's protection. In the modern
law of most countries the childhood is accorded protection in multifarious ways. Guardian is "a
person having the care of the person of the minor or of his property or both person and property."
It may be emphasized that in the modern law guardians exist essentially for the protection and
care of the child and to look after its welfare. This is expressed by saying that welfare of the
child is paramount consideration. Welfare includes both physical and moral well-being.
Guardians may be of the following types : 1. Natural guardians, 2. Testamentary guardians, and
3. Guardians appointed or declared by the court. There are two other types of guardians, existing
under Hindu law, de facto guardians, and guardians by affinity.
Natural Guardians
In Hindu law only three persons are recognized as natural guardians father, mother and husband,
Father. “Father is the natural guardian of his minor legitimate children, sons and daughters."
Section 19 of the Guardians and Wards Act, 1890, lays down that a father cannot be deprived of
the natural guardianship of his minor children unless he has been found unfit. Me effect of Lh1s
provision has been considerably whittled down by judicial decisions and by Section 13 of the
Hindu Minority and Guardianship Act which lays down that welfare of the minor is of
paramount consideration and father's right of guardianship is 5;ubordinate to the welfare of the
child. The Act does not recognize the principle of joint guardians. The position of adopted
children is at par with natural-born children. The mother is the natural guardian of the minor
illegitimate children even if the father is alive. However, she is the natural guardian of her minor
legitimate children only if the father is dead or otherwise is incapable of acting as guardian.
Proviso to clause (a) of Section 6, Hindu Minority and Guardianship Act lays down that the
custody of a minor who has not completed the age of five years shall ordinarily be with the
mother. Thus, mother is entitled to the custody of the child below five years, unless the welfare
of the minor requires otherwise.
In Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya, the
Supreme Court has held that under certain circumstances, even when the father is alive mother
can act as a natural guardian. The term 'after' used in Section 6(a) has been interpreted as 'in
absence of' instead 'after the life-time'. -
Rights of guardian of person. -The natural guardian has the following rights in respect of minor

children:
(a) Right to custody, .
(b) Right to determine the religion of children,
(c) Right to education,
(d) Right to control movement, and
(e) Right to reasonable chastisement
These rights are conferred on the guardians in the interest of the minor children and therefore of
each- of these rights is subject to the welfare of the minor children. The natural guardians have
also the obligation to maintain their minor children.
Testamentary Guardians
When, during the British period, testamentary powers were conferred on Hindus, the
testamentary guardians also came into existence. It was father's prerogative to appoint
testamentary guardians. By appointing a testamentary guardian the father could exclude the
mother from her natural guardianship of the children after his death. Under the Hindu Minority
and Guardianship Act, 1956, testamentary power of appointing a guardian has now been
conferred on both parents.' The father may appoint a testamentary guardian but if mother
survives him, his testamentary appointment will be ineffective and the mother will be the natural
guardian. If mother appoints testamentary guardian, her appointee will become the testamentary
guardian and father's appointment will continue to be ineffective. If mother does not appoint,
father's appointee will become the guardian. It seems that a Hindu father cannot appoint a
guardian. of his minor illegitimate children even when he is entitled to act as their natural.
guardian, as S. 9(1) confers testamentary power on him in respect of legitimate children. In
respect of illegitimate children, Section 9(4) confers such power on the mother alone.
Under Section 9, Hindu Minority and Guardianship Act, testamentary guardian can be appointed
only by a will. The guardian of a minor girl will cease to be the guardian of her person on her
marriage, and the guardianship cannot revive even if she becomes a widow while a minor. It is
necessary for the testamentary guardian to accept 'the guardianship. Acceptance may be express
or implied. A testamentary guardian may refuse to accept the appointment or may disclaim it, but
once he accepts, he cannot refuse to act or resign except with the permission of the court.
Guardians Appointed by the Court

The courts are empowered to appoint guardians under the Guardians and Wards Act, 1890. The
High Court also have inherent jurisdiction to appoint guardians but this power is exercised
sparingly. The Hindu Minority and Guardianship Act is supplementary to and not in derogation
to Guardians and Wards Act. Under the Guardians and Wards Act, 1890, the jurisdiction is
conferred on the District Court: The District Court may appoint or declare any person as the
guardian whenever it considers it necessary in the welfare of the child.' In appointing ,,a"
guardian, the court takes into consideration various factors, including the age, sex, wishes of the
parents and the personal law of the child. The welfare of the children is of paramount
consideration.
The District Court has the power to appoint or declare a guardian in respect of the person as well
as separate property of the minor. The chartered High Courts have inherent jurisdiction to

appoint guardians of the- person as well as the property of minor children. This power extends to
the undivided interest of a coparcener.
The guardian appointed by the court is known as certificated guardian. Powers of Certificated
guardians. Powers of certificated guardians are controlled by the Guardians and Wards Act,
1890. There are a very few acts which he can perform without the prior permission of the court.
In the ultimate analysis his powers are co-extensive with the powers of the sovereign and he may
do all those things (though with the permission of the court) which the sovereign has power to
do. A certificated guardian from the date of his appointment is under the supervision, guidance
and control of the court./
Guardianship by affinity
In pre-1956 Hindu law there existed a guardian called guardian by affinity. The guardian by
affinity is the guardian of a minor widow. Mayne said that "the husband's relation, if there exists
any, within the degree of sapinda, are the guardians of a minor widow in preference to her father
and his relations."' The judicial. pronouncements have also been to the same effect[1]. The
guardianship by affinity was taken to its logical end by the High Court in Paras Ram v. State[2]
In this case the father-in-law of a minor widow forcibly took away the widow from her mother's
house and married her for money to an unsuitable person against her wishes. The question before
the court was whether the father-in-law was guilty of removing the girl forcibly. The Allahabad
High Court held that he was not, since he was the lawful guardian of the widow.
A question has come before our courts, whether the nearest sapinda of the husband automatically
becomes a guardian of the minor widow on the death of her husband or whether he is merely
preferentially entitled to guardianship and therefore he cannot act as guardian unless he is
appointed as such? Paras Ram seems to subscribe to the former view, and the Madras and the
Nagpur high Courts to the latter view. Under Section 13, Hindu Minority and Guardianship Act,
in the appointment of 'any person as guardian, the welfare of the child is paramount
consideration. The fact that under Hindu law father-in-law has preferential right to be appointed
as guardian is only a matter of secondary consideration.
In our submission, it would be a better law if the guardianship of the minor wife, both of her
person and property, continues to vest in the parents. We do not have much of textual guidance
or case law on the powers of the guardians by affinity. Probably his powers may be taken to be at
par with those of the natural guardian.
De Facto Guardian
A de facto guardian is a person who takes continuous interest in the welfare of the minor's person
or in the management and administration of his property without any authority of law. Hindu
jurisprudence has all along recognized the principle that if liability is incurred by one on behalf
of another in a case where it is justified, then the person, on whose behalf the liability is incurred
or, at least, his property, is liable, notwithstanding the fact that no authorization was made for
incurring the liability.'

The term 'de facto guardian' as such is not mentioned in any of the texts, but his existence has
never been denied in Hindu law. In Sriramulu, Kanta[3]. said that Hindu law tried to find a
solution out of two difficult situations : one, when a Hindu child has no legal guardian, there
would be no one who would handle and manage his estate in law and thus without a guardian the
child would not receive any income for his property and secondly, a person having no title could
not be permitted to intermeddle with the child's estate so as to cause loss to him. The Hindu law
found a solution to this problem by according legal status to de facto guardians.
A mere intermeddler is not a de facto guardian. An isolated or fugitive act of a person in regard
to child's property does not make him a de facto guardian. To make a person a de facto guardian
some continuous course of conduct is necessary on his part. In other words, a de facto guardian
is a person who is not a legal guardian, who has no authority in law to act as such but
nonetheless he himself has assumed, the management of the property of the child as though he
were a guardian. De facto guardianship is a concept where past acts result in present status. The
term literally means 'from that which has been done.'
The de facto guardian was recognised in Hindu law as early as 1856. The Privy Council in
Hanuman Pd.said that 'under Hindu law, the right of a bona fide incumbrancer, who has taken a
de facto guardian a charge of land, created honestly, for the purpose of saving the estate, or for
the benefit of the estate, is not affected by the want of union of the de facto with the de jure title.
Guardianship Under Muslim Law:

The source of law of guardianship and custody are certain verses in the Koran and a few ahadis.
The Koran, the alladis and other authorities on Muslim law emphatically speak of the
guardianship of the property of the minor, the guardianship of the person is a mere inference. We
would discuss the law of guardianship of custody as under :
(a) Guardianship,
(b) Custody, and
(c) De facto guardian.
Classification of Guardianship
In Muslim law guardians fall under the following three categories : (i) Natural guardians,
(ii) Testamentary guardians, and
(iii) Guardians appointed by the court.
Natural Guardians
In all schools of both the Sunnis and the Shias, the father is recognized as guardian which term in
the context is equivalent to natural guardian and the mother in all schools of Muslim law is not
recognized as a guardian, natural or otherwise, even after the death of the father. The father's
right of guardianship exists even when the mother, or any other female, is entitled to the custody
of the minor. The father has the right to control the education and religion of minor children, and
their upbringing and their movement. So long as the father is alive, he is the sole and supreme
guardian of his minor children.
The father's right of guardianship extends only over his minor legitimate children. He is not
entitled to guardianship or to custody of his minor illegitimate children.

In Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but
she is entitled to their custody.
Among the Sunnis, the father is the only natural guardian of the minor children. After the death
of the father, the guardianship passes on to the executor. Among the Shias, after the father, the
guardianship belongs to the grandfather, even if the father has appointed an executor, the
executor of the father becomes the guardian only in the absence of the grandfather. No other
person can be natural guardian, not even the brother. In the absence of the grandfather, the
guardianship belongs to the grandfather's executor, if any.'
Testamentary Guardian
Among the Sunnis, the father has full power of making a testamentary appointment of guardian.
In the absence of the father and his executor, the grandfather has the power of appointing a
testamentary guardian. Among the Shias, the father's appointment of testamentary guardian is
valid only if the grandfather is not alive. The grandfather, too, has the power of appointing a -
testamentary guardian. No other person has any such power. Among both the Shias and the
Sunnis, the mother has no power of appointing a testamentary guardian of her children. It is only
in two cases in which the mother can appoint a testamentary guardian of her property of her
minor children :.first, when she has been appointed a general executrix by the will of the child's
father, she can appoint an executor by her will; and secondly, she can appoint an executor in
respect of her own property. which will devolve after her death on her children.
The mother can be appointed a testamentary., guardian or executrix by the father, or by the
grandfather, whenever he can exercise this power. Among the Sunnis, the appointment of a non-
Muslim mother as testamentary guardian is valid, but among the Shias such an appointment is
not valid, as they hold the view that a non-Muslim cannot be a guardian of the person as well as
of. the property of a minor. It seems that the appointment of non'-Muslim fellow-subject (iiinmi)
is valid, though it may be set aside by the kazi. According to the Malikis and the Shafii law, a
zimmi can be a validly appointed testamentary guardian of the property of the minor, but not of
the person of -the minor. The Shias also take the same view. It appears that when two persons are
appointed as guardians, and one of them is disqualified, the other can act as guardian. A
profligate, i.e., a person who bears in public walk of life a notoriously bad,character, cannot be
appointed as guardian:
Acceptance of the appointment of ...testamentary guardianship is necessary, though acceptance
may be express or implied. But once the guardianship . is accepted, it cannot be renounced save
with the permission of the court.
Muslim law does not lay down any specific formalities for the appointment of testamentary
guardians. Appointment may be made in writing or orally. In every case the intention to appoint
a testamentary guardian must be clear and unequivocal. A testamentary deposition made by a
testator may be invalid, but appointment of the executor may be general or particular. The
testator must have the capacity to make the will at the time when it was executed. This means
that the feslat8r ghould be major and of sound -mind, i.e., at the time of execution of the will, he
should be in full possession of his senses.

The executor of the testamentary guardian is designated variously by Muslim lawgivers,
indicating his position and powers. He is commonly called, wali or guardian. He is also called
amin, i.e., a trustee. He is also termed as kaim-mukam, i.e., personal representative of the
testator.
Guardian appointed by the Court.-On the failure of the natural . guardians and testamentary
guardians, the kazi was entrusted with the power of appointment of guardian of a Muslim minor.
Now the matter is governed by the Guardians and Wards Act, 1890. This Act applies to the
appointment of guardians of all minors belonging to any community. The High Court also have
inherent powers of appointment of guardians, though the power is exercised very sparingly.
Under the Guardians and Wards Act, 1890, the power of appointing, or declaring any person as
guardian is conferred on the District Court. The District Court may appoint or declare any person
as guardian of a minor child's person as well as property whenever it considers it necessary- for
the welfare of the minor, taking into consideration the age, sex, wishes of the child as well 'as the
wishes of the parents and the personal law of the minor.
Unit -IV: Civil Marriage and Emerging trends in Family Law
Provisions of Special Marriage Act, 1954
Hindu Marriages can now be solemnized under two different two different acts passed by the
control of the Legislature. The acts are –
The Special Marriage Act 1954

The Hindu Marriage Act 1955
Under the former Act the Hindu Marriage is called a Special Marriage .
The SMA has come into force with effect from 1st January 1955 and extends to the whole of
India except the states of Jammu and Kashmir. The Act applies to all citizens of India domiciled
in the territories to which this Act extends but who are presently and temporarily in the state of
Jammu and Kashmir.
In other words, the Act applies to citizens of India permanently residing in any part
of India except those persons permanently residing in the state of Jammu and Kashmir.
The Act provides for a special form of marriage which can be taken advantage of by any person
in India as well as by citizens of India resident in foreign countries irrespective of the faith which
either party to the marriage may profess. Thus, the said Act has extra-territorial operation so as to
permit marriage between the citizens of India solemnized outside the territory of India in any
foreign country.
Definition of Degrees of Prohibited Relationship – Section 2(b) :
According to Section 2(b) a man and any other person mentioned in Part I of the First Schedule
and a woman and any other person mentioned in Part II of the said Schedule are within the
degrees of Prohibited relationship.
According to the Explanation 1 appended to Section 2(b) , relationship includes –
 Relationship by half blood, full blood or uterine blood.
 Illegitimate and legitimate blood relationships

 Relationships by adoption as well as by blood.
Explanation II has defined the terms full and half blood as –
Full blood –
Two persons are said to be related to each other by full blood when they are descendants from
a common ancestor by the same wife.
Half blood –
Two persons are said to be related to each other by half blood when they are descendants from
a common ancestor but by different wives.
Explanation III has defined the term uterine blood as –
Uterine blood –
Two persons are said to be related by uterine blood when they are descendants of a common
ancestor but by different husbands.
Explanation IV states that in Explanation II and III, the term ancestor refers to
the father and ancestress refers to themother.
Section 4 – Conditions relating to Solemnization Of Special Marriage :
Section 4 states that – notwithstanding any thing contained in any other law for the time being in
force relating to the solemnization of the marriage – a marriage between any two persons may be
solemnized under this Act if – at the time of the marriage the following conditions are fulfilled :
Neither party has a spouse living
Neither party is Incapable of giving a valid consent to the marriage in consequence of unsound
mind, or
Although capable of giving a valid consent – has been suffering from mental disorder of such
kind or to such an extent that it would be unfit for marriage and procreation of children, or has
been subject to recurring attacks of epilepsy or insanity
The male has completed the age of 21 years and the female the age of 18 years
The parties are not within the degrees of prohibited relationship within the meaning of Section 2
of the Act.
Where the marriage is solemnized in the state of Jammu and Kashmir , both the parties are
citizens of India domiciled in the territories to which this Act extends.
Proviso to Section 4, states where the parties must not be within the degrees of prohibited
relationship – that where a custom governing at least one of the parties to marry even when they
are within the degrees of prohibited relationship, then such a marriage may be solemnized even
though they are within such prohibited limits.
A marriage shall be void if all these conditions are not satisfied. Thus when the minimum age of
the bridegroom is less than 21 years then the marriage is considered void. Similarly, if a spouse
suffers from epilepsy, then the marriage contravenes Section 4 and is to be held void. However, a
marriage cannot be considered void if it is held that the marriage has not been consummated.
Note –The term “persons” used in Section 4 may not refer to only those who are citizens of
India. It may also refer to –
 2 citizens of India whether they are residing in India or in foreign countries
 2 foreigners who are in India
 A citizen of India and a foreigner.
Section 5 : Notice Of Intended Marriage :

Section 5 of the Act expressly states that when a marriage is intended to be solemnized under
this Act, the parties to the marriage shall give notice thereof in writing in the prescribed form,

specified in Schedule II of the Act – to the marriage officer of the district in which at least one of
the parties to the marriage has resided for a period of not less than 30 days immediately
preceding the date on which such notice is given.
However, it was held in a certain decided case that the omission to issue notice under Section 5
could not make the marriage void.
A notice of intended marriage under Section 5 may be withdrawn by any party giving such
notice under Section 5.
Notice of Intended Marriage When One Party Lives Abroad :
Marian Eva vs. State of H. P.
A permanent resident of Shimla and a female whose permanent resident is in Germany ,
submitted a notice of intended marriage before the marriage officer of Shimla. As the marriage
officer was not aware if any other marriage officer was appointed under this Act in Germany, to
whom a copy of notice was required to be sent, the marriage officer refused to solemnize the
marriage.
In a writ petition filed challenging such order, the High Court issued necessary orders to the
State Government, and the marriage officer to see whether the parties were still willing to marry,
so that this marriage could be solemnized by the marriage officer of Shimla under provisions of
this Act.
Section 6 : Marriage Notice Book And Publication :
According to Section 6(1) the marriage officer shall keep all notices given under Section
5 along with other records of his office. Further , the marriage officer shall enter a true copy of
every such notice, in a book prescribed for that purpose – called the Marriage Notice Book. This
book shall be open for inspection at all reasonable times without fee, by any person who desires
to inspect the same.
Section 6(2) states that the marriage officer shall publish every such notice by affixing a copy of
it to some prominent place in his office.
Section 6(3) finally, lays down that , where either of the parties to an intended marriage is not
permanently residing within the local limits of the district of the marriage officer, to whom the
notice has been given under Section 5. The marriage officer shall in such a case, send a copy of
such notice to the marriage officer of the district within whose limits such party is permanently
residing. That marriage officer shall affix a copy of the notice at some prominent place in his
office.
Section 7 : Objection To Marriage :
Section 7(1) lays down that any person may before the expiry of 30 days from the date on which
any notice has been published by the concerned marriage officer in accordance with Section
6(2) – object to the marriage on the ground that , if this marriage is solemnized , it would
contravene with one or more conditions stated under Section 4 of the Act.
According to Section 7(2), after the expiry of 30 days from the date of publication of the
notice of the intended marriage under Section 6(2), the marriage may be solemnized – provided
there has been no previous objections under Section 7(1).
Section 7(3) makes it obligatory on the marriage officer to record in writing the nature of
objection in the marriage notice book. After recording the objection, it shall be read over and
explained , if necessary, to the person who has made the objection. He or someone on his behalf
shall then sign such records.
Section 8 : Procedure On Receipt Of Objection :
Section 8 (1) provides that if an objection is made under Section 7 to an intended marriage , the

marriage officer shall not solemnized the marriage until he has inquired into the matter of the
objection and is satisfied that the objection is of such a nature that it should not prevent the
solemnization of marriage. The objection may be withdrawn by the person making it.
Section 8(1) further imposes on the marriage officer an obligation that he shall not take more
than 30 days from the date of objection for the purpose of inquiring into the matter of the
objection and arriving at a decision.
Section 8(2) provides that if the marriage officer upholds the objection and refuses to solemnize
the marriage , either party to the intended marriage may within a period of 30 days from the date
of such refusal , prefer an appeal to the District Court within the local limits of whose
jurisdiction the office of the marriage officer is situated. The decision of thedistrict Court on such
appeal shall be final and binding on the marriage officer who must then Act in accordance with
the decision of the Court.
Section 9 : Powers Of Marriage Officers In Respect Of Inquiries :
Section 9 of the Act has laid down the powers of the marriage officer in respect of the conduct of
inquiries in matters ofobjection to an intended marriage as entrusted to him under Section 8 of
the Act.
Section 9 (1) provides that for the purpose of any inquiry under Section 8 , the marriage officer
shall have all the powers vested in a civil Court under the Civil Procedure Code 1908 when
trying a suit in respect of the following matters :
 Summoning and enforcing the attendance of witnesses and organizing them on oath
 Discovery and inspection of documents
 Receiving of evidence on affidavit
 Issuing orders for the examination of witnesses.
Any proceeding before the marriage officer shall be deemed to be a judicial proceeding within
the meaning of Section 193 of the IPC 1860, in as much as, if any witness gives false evidence,
he may be punished for giving false evidence under Section 193 of the IPC.
Explanation to Section 9 states that for the purpose of enforcing the attendance of any person to
give evidence, the local limits of the jurisdiction of the marriage officer shall be the local limits
of his district. According to Section 9(2) , if it appears to the marriage officer that the objection
made to an intended marriage is arbitrary, unreasonable and mala fide (not in good faith) he may
impose on the person fine , so objecting costs , not exceeding Rs 1000 and award the whole or
any part of such compensation to the parties to the intended marriage . Any order made for costs
by way of compensation may be executed in the same manner as if it was a decree passed by the
District Court within the local limits of whose jurisdiction the marriage officer has his office.
Section 15 : Registration Of Marriage Celebrated In Other Forms :
This Section deals with the registration of marriages celebrated in other forms.
Accordingly, any marriage celebrated either before or after the commencement of this Act , other
the marriage solemnized under this Act or under the Special Marriage Act 1872 – may be
registered under Chapter III of the Special Marriage Act 1954 by the marriage officer .
But the following conditions need to be satisfied :-
Clause A ceremony of marriage has been performed between the parties and they have been living
(a ) together ever since as husband and wife
(b) Neither party at the time of the registration of the marriage – more than one spouse living
(c ) Neither party is an idiot or a lunatic at the time of registration of marriage

(d) The parties have completed the age of 21 years at the time of registration
The parties are not within the degrees of prohibited relationship .
A Proviso to clause (e) states that in the case of a marriage celebrated before the commencement of
(e) the Special Marriage Act 1954, the condition as to the degrees of prohibited relationship shall be
subject to any law , custom or usage having the force of law governing such parties , which permits
of a marriage between the two even within the degrees of prohibited relationship.
The parties have been residing within the district of the marriage officer for a period of not less than
(f) 30 days immediately preceding the date on which the application is made to the marriage officer for
registration.
Section 16 : Procedure For Registration :
According to Section 16 , upon the receipt of the application signed by both the parties to the
marriage for the registration of their marriage under Chapter III of the Act , the marriage
officer shall give Public Notice thereof in the prescribed manner.
He shall then allow a period of 30 days for objection and if any objection is received , he shall
hear them within the said period. Therefore the marriage officer , shall , if satisfied that all the
conditions mentioned in Section 15 are fulfilled, he shall enter a Certificate of Marriage in
the Marriage Certificate Book in the prescribed form. Such certificate shall besigned by the
parties to the marriage and by 3 witnesses.
Section 19 : Effect Of Marriage On Member Of Undivided Family
Section 19 of the Act deals with the effect of marriage solemnized under the Special Marriage
Act on a member of undivided family.
The Section states that if a marriage is solemnized under this Act of any member of an undivided
family who professes theHindu, the Buddhist, Sikh or Jain religion , then by the very fact that
such marriage was solemnized under the Act would severe his tie from the family.
Section 24 : Void Marriage :
According to Section 24(1) any marriage solemnized under this Act shall be null and void if –
i.Any of the conditions mentioned in Section 4(a), (b) (c ) and (d) had not been fulfilled.
ii.Or if the respondent was impotent at the time of the marriage and at the time of the institution
of the suit.
Such marriage may on a petition presented by either party to the marriage against the other party
be declared as null and void by a decree of nullity.
Section 24(2) provides that the provision of Section 24 shall not apply to any marriage deemed to
be solemnized under this Act within the meaning of Section 18.
But the registration of any such marriage under chapter III may be declared to be of no effect if
the registration was in contravention of any of the conditions specified in clauses (a ) to (c ) of
Section 15. However no such declaration shall be made where an appeal has been preferred
under Section 17 and the decision of the Court has become final.
Section 25 : Voidable Marriage :
Section 25 lays down that any marriage solemnized under the Act shall be voidable and may be
annulled by a decree of nullity if –
i.The marriage has not been consummated because of willful refusal of the respondent to
consummate the marriage, or
ii.The respondent was at the time of the marriage pregnant by some other person other than the
petitioner, or
iii.The consent of either party to the marriage was obtained by coercion or fraud within the
meaning of Section 15 and 17 of the ICA

Proviso to Section 25 expressly lays down that in case where the respondent was at the time of
the marriage, pregnantby some other person other than the petitioner husband, the Court shall not
grant a decree of nullity of marriage unless the Court is satisfied that –
i. The petitioner was at the time of the marriage ignorant of the fact alleged
ii. The proceedings to set aside the marriage were instituted within a year from the date of marriage
iii. The marital intercourse with the consent of the petitioner has not taken place since the
discovery of the fact alleged by the petitioner.
The Section further provides that in the case where the consent of either party to the marriage
was obtained by coercion or fraud , the Court shall not grant a decree of nullity if –
i. Proceedings have not been instituted within 1 year after the coercion had ceased or after the
fraud was discovered, as the case may be.
ii. The petitioner , either the husband or the wife, has with his / her free consent lived with the other
party to the marriage as husband / wife , after the coercion had ceased or after the fraud was
discovered , as the case may be.
Note –
The principal point in the distinction between the void and voidable marriage is the void
marriage is void ab initio under the circumstances specified in Section 24(1) and the marriage
would be declared null by a decree of nullity. In the case of voidable marriages, however,
marriage is not void ab initio. The marriage may be set aside / avoided at the instance of the
petitioner under the circumstances specified in Section 25 of the Act. Unless so avoided by the
petition shall continue to be valid and the marriage will not be considered void prima facie.
Impotence means incapacity to consummate the marriage and such impotency may either be of
the husband/wife with the other spouse.
The ground for annulling a marriage on the ground of willful refusal to consummate the marriage
is not available under the Hindu Marriage Act but is found under this Act,
Case Law – Gitika Bagchi vs. Subhabrota Bagchi
The wife totally concealing the fact that she was 3 years older than the husband during the
marriage amounts to fraud contemplated by Section 25.
Section 26 : Legitimacy Of Children Of Void And Voidable Marriages :
According to Section 26(1) notwithstanding that a marriage is null and void under Section 24,
any child of such marriage who would have been legitimate had the marriage been legitimate
had the marriage been valid shall be legitimate –
Whether such child is born before or after the commencement of the Marriage Laws
(Amendment) Act 1976, and
Whether or not a decree of nullity is granted in respect of that marriage under this Act
Whether or not such marriage is held to be void otherwise than on a petition under this Act
Section 26(2) states that where a decree of nullity is granted in respect of a voidable marriage
under Section 25 , any child begotten or conceived before the decree is made , who would have
been the legitimate child of the parties to the marriage , if at the date of the decree, the marriage
has been dissolved instead of being annulled , shall be deemed to be their legitimate child.
Finally Section 26(3) provides that although a child of a null and void marriage , or of a marriage
which is annulled by a decree – shall be deemed to be the legitimate child of the parties to such
a marriage. But that does not confer upon any child any rights in or to the property of any person
other than the parents.

The provision under Section 26 which recognizes the legitimacy of children of void and voidable
marriages is both essential and necessary because otherwise, such child would have been
incapable of possessing or acquiring any such right by reason of his not being the legitimate
child of such parents.
Section 29 : Restrictions On Petitions For Divorce During First 3 Years After Marriage :
According to Section 29 (1) , no petition for divorce shall be presented to the district
Court unless at the date of the presentation of the petition one year has passed since the date of
entering the certificate of marriage in the Marriage Certificate Book.
Proviso to Section 29 (1) states that the District Court may upon the application being made to
it allow a petition to be presented before one year has passed, if the case is one of “exceptional
hardship” suffered by the petitioner or exceptional disparity on the part of the respondent.
The Proviso further lays down that if it appears to the District Court at the time of the
presentment of the petition that thepetitioner obtained leave to present the petition by
any misrepresentation or concealment of fact of the case, the District Court in that case, even if it
pronounces a decree of divorce shall do so subject to the condition that the decree shall not have
effect until the expiry of one year from the date of the marriage .
The Court may even dismiss the petition which is based on the misrepresentation or concealment
of facts.
Section 29 (2) states that in disposing off any application for leave to present a petition for
divorce before the expiry of one year from the date of the marriage , the District Court shall have
regard to the interests of any children of the marriage , as well as to the probability of
a reasonable reconciliation between the parties before the expiry of the said one year.
Section 30: Re-Marriage Of Divorced Persons :
Section 30 of the Act provides for the re-marriage of divorced persons under certain
circumstances. According to Section 30 where a marriage has been dissolved by a decree of
divorce and either –
There is no right of appeal against the decree, or
If there is such a right of appeal, the time for appealing has expired without an appeal being
preferred, or an appeal was presented but has been dismissed,
Subject to the fulfillment of these conditions – either party to the marriage may marry again.
Section 31 : Court To Which Petition Should Be Made :
According to Section 31 (1) , every petition under this Act shall be presented to the District
Court within the local limits of whose original civil jurisdiction –
 The marriage was solemnized, or
 The respondent at the time of the presentation of the petition residing (by the petitioner)
 The parties to the marriage last resided together
In case the wife is the petitioner where she is residing on the date of the presentation of the
petition.
The petitioner is residing at the time of presentation of the petition in a case where the
respondent at the time residing outside the territories to which this Act extends or
The petitioner has not been heard of as being alive for a period of 7 years by those who would
have naturally heard of him had he been alive.
Section 31(2) states that the District Court may by virtue of this subsection entertain a petition
by a “wife” domiciled in the territories to which this Act extends for nullity of marriage or for
divorce, if she is a resident in the said territories and has been ordinary resident thereon for a
period of 3 years immediately preceding the presentment of the petition and the “husband” is not

resident in the said territories.
Section 33 : Proceedings To Be In Camera And May Not Be Printed Or Published
Section 33(1) states that every proceeding under this Act shall be conducted in CAMREA that is,
in Judge’s Private Room not in public/openly. Moreover, it shall not be lawful for any person to
print or publish any matter concerning any such proceedings. However, a judgment of the High
Court or the Supreme Court may be printed or published with the prior permission of the Court.
Section 33(2) states that any person who contravenes the provision contained in Section 33(1) –
shall be punished with fine which may extend up to Rs 1000.
b. Emerging trends:
Surrogacy
A surrogacy agreement is an arrangement to carry a pregnancy for intended parents. Surrogacy
can be classified into two main types: gestational and traditional. In case of gestational
surrogacy, pregnancy occurs due to the transfer of an embryo created by in vitro fertilization
such that the resulting child is genetically unrelated to the surrogate. Traditional surrogacy
involves impregnation of the surrogate naturally or artificially, and the resulting child is
genetically related to the surrogate.
Surrogacy arrangement is usually sought by intended parents when pregnancy is either medically
impossible or it is considered very risky for the mother's health. These agreements may or may
not includemonetary compensation. The arrangement is termed commercial surrogacy when the
surrogate is given compensation higher than the medical reimbursement and other reasonable
expenses; otherwise, it is referred to as altruistic or non-commercial surrogacy. Surrogacy laws
and costs can differ significantly across jurisdictions in various nations.
History Of Surrogacy
Babylonian law and custom followed a practice known as antiquity. A couple could arrange for
another woman to be impregnated by the male half of the couple. The child thus borne would be
raised by the couple.A barren woman could use this practice to prevent a divorce.Several
advances in medicine, social customs, and legalities have led to the development of modern
commercial surrogacy.
In the 1930s,U.S., pharmaceutical companies Schering-Kahlbaum and Parke-Davis started the

mass production of estrogen. For the first time in1944, Harvard Medical School Professor John
Rock fertilized the human ova outside the uterus. In 1953, the first cryopreservation of sperm
was performed successfully. A commercial sperm bank was first opened in New York in 1971,
which turned this into a highly profitable business throughout the world.Louise Brown, the first
test-tube baby and product of the IVF procedure, was born in England in 1978. In 1980,Noel
Keane, a lawyer from Michigan prepared the first surrogacy contract. The first successful
gestational surrogate pregnancy in a woman was carried out in 1985.In 1986,surrogate and
biological mother, Mary Beth Whitehead of the United States, refused to give custody of the
child (Baby M) to the couple against the surrogacy agreement. However, the courts of New
Jersey awarded custody of the child to the biological father and not the surrogate mother.
Similarly, in 1990,the surrogate mother Anna Johnson in California refused to yield custody of
the baby to the intended parents. The court upheld the parental rights of the couple. This verdict
legally defined the true mother as the woman who intends to create and raise a child. A

convention was held in Chile in 1994 by Latin American fertility specialists to discuss assisted
reproduction and its ethical and legal status.So, the concept of surrogacy is not new and has
existed in the world since ages.
Legal Issues Regarding Surrogacy Across The World
Not all countries encourage surrogacy. Ethical and legal implications have been a deterrent for
its worldwide acceptance. In France, Germany,Sweden and Spain, the people have voted against
surrogacy.In France, commercial surrogacy is banned;and in 1991 its highest court announced
that “the human body is not lent out, is not rented out, and is not sold.” In the United Kingdom,
South Africa and Argentina, where surrogacy is allowed, surrogacy requests are decided by
independent surrogacy committees.In the United States, rules and regulations on surrogacy differ
among states. California has legalized commercial surrogacy, while it is illegal in some states
and in some others, regulations are introduced.
In such a scenario, couples in these countries where legalities involved in commercial surrogacy
are complicated, would rather opt for other countries where the legal procedure in this issue is
much simpler. In the United States and few other countries, the embryo implantation attempts,
surrogacy contracts and post-birth rights of the surrogate mother are all governed by laws;while
such contracts and laws in India are still under developed. Surrogate mothers give up their rights
to the children with just a signature, and most often with a thumbprint if they are illiterate. The
birth certificate does not carry the name of the surrogate. Thus, taking the baby out of the
country becomes easy, but legal and ethical uncertainties over surrogacy remain.
Although laws in Ukraine allow surrogacy, bringing the child into the country can be difficult.
Surrogacy is completely banned in France, Germany and Sweden.Further, commercial surrogacy
is not encouraged in the United Kingdom where legal hurdles exist.Surrogacy is more acceptable
internationally, but there are no international laws on surrogacy or minimum standards. Also,
legal parentage of such a child has not been recognized by any international conventions.
In some countries, producing evidence (such as DNA test results) of at least one parent of the
child having a genetic relationship with the child is mandatory;whereas in other countries, legal
release of the child by the husband of any married surrogate is required. Obtaining citizenship
and travel document is tough in most countries for such a child.In Belgium, altruistic surrogacy
is legal,while commercial surrogacy is illegal. In France, Article 17/6 of the Civil Code nullifies
any agreement with a third party relating to procreation or gestation and disobeying the law may
lead to judicial problems.However, the Conseild'Etat, the highest administrative court in
Francehas declared that overseas surrogacy agreement is lawful.
In Germany, Article 1 of the Constitution, which states that human dignity is inviolable,
disallows surrogacy. German law does not permit a human to be made the subject of a contract;
including the use of a third party's body for reproduction. In the United Kingdom, commercial
surrogacy is not considered legal. It is prohibited by the Surrogacy Arrangements Act
1985.Paying more than expenses for a surrogacy is considered illegal. The Human Fertilization
and Embryology Act 1990 allows intending parents to acquire legal parenthood of their child;the
surrogate is excluded by anadoption order. In the United States, citizenship to children born
overseas to a U.S. parent is granted by the U.S. Department of State, only ifthe U.S. citizen has a
biological connection with the child; this is governed by the Immigration and Nationality Act.
International Surrogacy Arrangement
Traditional surrogacy involves the union of the egg of a surrogate mother and, usually, the sperm
of the commissioning father. The commissioning father would be the child’s legal father, and the

surrogate mother the child’s legal mother, in the home country of both the parents. However, at
present,conferring parentage on couples who use artificial fertilization techniques is problematic.
Generally, the sperm donor is regarded as the father of the child, so legislation had to be enacted
such that the husband of the woman who is inseminated by artificial insemination-donor would
be the legal father of the child. This legislation does not encourage surrogacy arrangements.
Advances in medical technology such as gestational surrogacy enable an embryo to be created

from a donor egg and sperm and then implanted into a surrogate mother. In this case, the
“mother” has to be legally defined. Legal rules maydiffer in the home countries of the surrogate
and the commissioning parents. There may be a serious conflict of laws which will affect matters
such as nationality and immigration. In countries that allow commercial surrogacy arrangements,
rules may permit commissioning parents to have parental rights over the child, and not the
surrogate mother. This may not be recognized by other countries, which can have their own
rules.
Surrogacy In India – Legal Issues
Since many nations do not recognize surrogacy agreements, India has become a popular
destination of fertility tourism. Infertile couples from all over the world travel to India where
commercial surrogacy is legal. This arrangement may seem to be beneficial for all concerned
parties; however,certain important issues have to be addressed through carefully framed laws in
order to protect the rights of the surrogate mother and the intended parents.An added attraction is
the low cost of the whole procedure in India which is much less compared to other countries.
The Assisted Reproductive Technologies (ART, Regulation) Bill 2010is an act which aims to
provide a national framework for the accreditations, regulation and supervision of assisted
reproductive technology clinics, for prevention of misuse of assisted reproductive technology,
for safe and ethical practice of assisted reproductive technology services and for matters
connected therewith or incidental thereto. However, this bill does not address many important
issues of surrogacy. There is no limit on the frequency of use of surrogacy by an intending
couple. A government body has not been appointedto check the family background or status of
the couples. The ART Bill prohibits sex-selective surrogacy in accordance with the Pre-
conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act. However,
there are no means monitor their operation of the clinics.
Commercial surrogacy was made legal in India with the landmark Supreme Court judgment and
later, the Indian Council of Medical Research Guidelines 2005 which prescribed conduct and use
of ART procedures or treatment by fertility clinics. The ART Bill legalized commercial
surrogacy by prescribing monetary compensation to the surrogate mother by the intending
couple.Law Commission Report No. 228 (2009) recommends legalization of altruistic or non-
commercial surrogacy arrangements in India in order to protect the surrogate mother from
exploitation.
The Home Ministry guidelines apply only to foreign couples andlimit the choice of surrogacy to
heterosexual couples. However, the ART Bill allows surrogacy by all (including single or
unmarried) and there is no restriction on sexual orientation or nationality.In India, many laws
have been enforced to regulate surrogacy;but,they lack in clarity. Hence, efforts have to be
channelized in this direction.
India only has guidelines and no legislation governing surrogacy. The surrogacy agreement
governs the contractual relation between the parties. The surrogate could claim the child as her

own or enforce parental visitation or custodial rights, thus creating problems. Also, the
surrogate's husband may claim the child under section 112 of the Evidence Act.It is very
important for the parents in this arrangement to prepare afoolproof surrogacy agreement and
ensure a strong contract.
Concluding Remarks
In India, people are practicing surrogacy when several children are orphans. Childless couples
who want to adopt these children are subjected to a complex procedure. A common adoption law
for all the citizens across religions or Indians living in other countries is not present. Hence, they
are forced to opt for IVF or surrogacy. The Guardian and Wards Act, 1890 allows guardianship
and not adoption. The Hindu Adoption and Maintenance Act, 1956 does not allow non-Hindus to
adopt a Hindu child, and immigration procedures after adoption pose obstacles. Simple adoption
procedures will reduce the rates of surrogacy. However, commercial surrogacy should be
encouraged. The rights of women and children should be protected through framing of laws
which will cover all the present loopholes.
Live-in Relationship
Status of live in relationships in India
In India marriage has always been considered a sacrament. The husband and wife are considered
as one in the eyes of law. The legal consequences of marriage that follow add to the sanctity of
this relationship. Marriage legally entitles both the persons to cohabit; the children born out of a
legal wedlock are the legitimate children of the couple; the wife is entitled to maintenance during
the subsistence of marriage and even after the dissolution of marriage and many more.
The benefits of marriage come with a lot of responsibilities. The marital obligations towards the
spouse, towards the family, towards the children and towards the marital house are an
inseparable part of the Indian marriage. To avoid the obligations of a traditional marriage and on
the other hand to enjoy the benefit of cohabiting together, the concept of live in relation has
come into picture. Live in relationships provide for a life free from responsibility and
commitment which is an essential element of marriage. The concept of live in relationships is not
new to the Indian society, the only difference is that earlier people were hesitant in declaring
their status may be due to the fear of the society but now the people are openly in this kind of
relationship.
WHAT IS LIVE IN RELATIONSHIP

A living arrangement in which an unmarried couple lives together under the same roof in a long
term relationship that resembles a marriage is known as a live- in-relationship. Thus, it is the
type of arrangement in which a man and woman live together without getting married. This form
of relationship has become an alternate to marriage in metropolitan cities in which individual
freedom is the top priority amongst the youth and nobody wants to get entangled into the typical
responsibilities of a married life.
This form of living together is not recognized by Hindu Marriage Act, 1955 or any other
statutory law. While the institution of marriage promotes adjustment; the foundation of live in
relationships is individual freedom. Though the common man is still hesitant in accepting this
kind of relationship, the Protection of Women from Domestic Violence Act 2005 provides for
the protection and maintenance thereby granting the right of alimony to an aggrieved live-in
partner.

LEGAL STATUS OF LIVE IN RELATIONSHIP
The definition of live in relationships is not clear and so is the status of the couples in a live in
relationship. There is no specific law on the subject of live in relationships in India. There is no
legislation to define the rights and obligations of the parties to a live in relationships, the status of
children born to such couples. In the absence of any law to define the status of live in
relationships, the Courts have come forward to give clarity to the concept of live in relationships.
The Courts have taken the view that where a man and a woman live together as husband and
wife for a long term, the law will presume that they were legally married unless proved contrary.
The first case in which the Supreme Court of India first recognized the live in relationship as a
valid marriage was that of Badri Prasad vs. Dy. Director of Consolidation, in which the Court
gave legal validity to the a 50 year live in relationship of a couple.
The Allahabad High Curt again recognized the concept of live in relationship in the case of Payal
Katara vs. Superintendent, Nari Niketan and others, wherein it held that live in relationship is not
illegal. The Court said that a man and a woman can live together as per their wish even without
getting married. It further said that it may be immoral for the society but is not illegal.
Again in the case of Patel and Others., the Supreme Court has held that live in relationship
between two adults without marriage cannot be construed as an offence. It further held that there
is no law which postulates that live in relationships are illegal. The concept of live in relationship
was again recognized in the case of Tulsa v. Durghatiya.
In the case of S. Khushboo vs. Kanniammal & Anr., the Supreme Court held that living together
is a right to life. Live in relationship may be immoral in the eyes of the conservative Indian
society but it is not “illegal” in the eyes of law. In this case, all the charges against Kushboo, the
south Indian actress who endorsed premarital sex and live in relationship were dropped. The
Court held that how can it be illegal if two adults live together, in their words “living together
cannot be illegal.”
However in one of its judgment Alok Kumar vs. State, the Delhi High Court has held that live in
relation is walk in and walk out relationship and no strings are attached to it. This kind of
relationship does not create any legal bond between the partners. It further held that in case of
live in relationships, the partners cannot complain of infidelity or immorality.
Again giving recognition to live in relationships, the Supreme Court in the case of D. Velusamy
v. D. Patchaiammal has held that, a ‘relationship in the nature of marriage’ under the 2005 Act
must also fulfill some basic criteria. Merely spending weekends together or a one night stand
would not make it a ‘domestic relationship’. It also held that if a man has a ‘keep’ whom he
maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our
opinion, be a relationship in the nature of marriage’.
The court made it clear that if the man has a live-in arrangement with a woman only for sexual
reasons, neither partner can claim benefits of a legal marriage. In order to be eligible for
‘palimony’, a relationship must comply with certain conditions, the apex court said. The
following conditions were laid down by the apex Court:
The couple must hold themselves out to society as being akin to spouses;
They must be of legal age to marry; they must be otherwise qualified to enter into a legal
marriage, including being unmarried;
They must have voluntarily cohabited for a significant period of time.
Conscious of the fact that the judgment would exclude many women in live-in relationships from
the benefit of the Domestic Violence Act, 2005, the apex court said it is not for this court to

legislate or amend the law. The parliament has used the expression ‘relationship in the nature of
marriage’ and not ‘live-in relationship’. The court cannot change the language of the statute.
RIGHTS OF A FEMALE IN LIVE IN RELATIONSHIP

In June, 2008, it was recommended by the National Commission for Women to the Ministry of
Women and Child Development to include live in female partners for the right of maintenance
under Section 125 of Criminal Procedure Code, 1973. The view was also supported by the
judgment in Abhijit Bhikaseth Auti v. State Of Maharashtra and Others. In October, 2008, the
Maharashtra Government also supported the concept of live in relationships by accepting the
proposal made by Malimath Committee and Law Commission of India which suggested that if a
woman has been in a live-in relationship for considerably long time, she ought to enjoy the legal
status as given to wife. However, recently it was observed that it is divorced wife who is treated
as a wife in context of Section 125 of CrPC and if a person has not even been married i.e. the
case of live in partners, they cannot be divorced, and hence cannot claim maintenance under
Section 125 of CrPC.
The partner of a live in relationship was first time accorded protection by the Protection of
Women from Domestic Violence Act, 2005, which considers females who are not formally
married, but are living with a male person in a relationship, which is in the nature of marriage,
also akin to wife, though not equivalent to wife. Section 2(f) of the Act defines domestic
relationship which means a relationship between two persons who live or have, at any point of
time, lived together in a shared household, when they are related by consanguinity, marriage, or
through a relationship in the nature of marriage, adoption or are family members living together
as a joint family. Thus, the definition of domestic relationship includes not only the relationship
of marriage but also a relationship `in the nature of marriage’.
In a case in Delhi, the Delhi High Court awarded Rs. 3000/- per month as maintenance to a maid
who was in a live in relationship with her widower employer.
In Varsha Kapoor vs UOI & Ors., the Delhi High Court has held that female living in a
relationship in the nature of marriage has right to file complaint not only against husband or male
partner, but also against his relatives.
In the case of Koppisetti Subbharao Subramaniam vs. State of Andhra Pradesh, the defendant
used to harass his live in partner for dowry. In this case the Supreme Court held that the
nomenclature ‘dowry’ does not have any magical charm written over it. It is just a label given to
demand of money in relation to a marital relationship. The Court rejected the contention of the
defendant that since he was not married to the complainant, Section 498A did not apply to him.
Thus, the Supreme Court took one more step ahead and protected the woman in a live in
relationship from harassment for dowry.
STATUS OF CHILDREN OF COUPLES IN LIVE IN RELATIONSHIP

Since there is no specific law that recognizes the status of the couples in live in relationship,
hence the law as to the status of children born to couples in live in relationship is also not very
clear.
The Hindu marriage Act, 1955 gives grants the status of legitimacy to every child irrespective of
his birth out of a void, voidable or a legal marriage. But there is no specific law that raises any
presumption of legitimacy in favour of children of live in partners. The future of children of live

in partners becomes very insecure in case the partners step out of their relationship. There comes
the requirement of a strong provision to safeguard the rights of such children. The must be
provision to secure the future of the child and also entitling the children to a share in the property
of both the parents.
Again in the absence of a specific legislation, the Supreme Court of India took the initiative to
safeguard the interest of children of live in couples. In the case of Bharata Matha & Ors. vs. R.
Vijaya Renganathan & Ors., the Supreme Court of India has held that child born out of a live-in
relationship may be allowed to succeed inheritance in the property of the parents, if any, but
doesn't have any claim as against Hindu ancestral coparcenary property.
CONCLUSION
Live-in relationships in India have still not received the consent of the majority of people. They
are still considered a taboo to the Indian society. The majority of the people consider it as an
immoral and an improper relationship. At present there is no specific legislation that deals with
concept of live in relationship and the rights of the parties and the children of the live in partners.
It was a very unambiguous concept until the Supreme Court of India took the initiative and
declared that live in relationship though considered immoral but it is not illegal.
Through its various decisions the judiciary has tried to accord legality to the concept and protect
the rights of the parties and the children of live in couples. But at present there is a need to
formulate a law that would clarify the concept. There should be clear provisions with regard to
the time span required to give status to the relationship, registration and rights of parties and
children born out of it. The utmost need of the hour is to secure the future of the children born to
live in couples. The steps taken by the judiciary are indeed welcoming and pragmatic in
approach. Though the live in relations provide the individuals individual freedom but due to the
insecurity it carries it with, there needs to be a law to curtail its disadvantages
IVF
When Robert G Edward and Patrick Steptoe created history by performing the world's first
invitro fertilisation (IVF) in July 1978, Dr Subhash Mukhopadhyay, a Kolkata-based doctor was
also set to bring glory to India for the same reason. Durga alias Kanupriya Agarwal, India's first
test tube baby and the world's second test tube baby was born on October 3, 1978 just two
months after Louise Brown-the first test tube baby came into this world. In retrospect, this
achievement is considered to be one of the most important medical advances of the last century
as basic research conducted by these veterans had translated into practical outcome that was
going to benefit so many families. Interestingly, this path-breaking step in control of infertility
constituted a base for the development of the IVF segment in India and the world over.
The Growth Trajectory

The last 20 years have seen an exponential growth of infertility clinics across the globe. They
offer services such as: artificial insemination by husband or donor sperm, gamete intra fallopian
transfer (GIFT), in vitro fertilisation and embryo transfer (IVF-ET), intra cytoplasmic sperm
injection (ICSI), donor egg treatment, donor embryo treatment and endoscopic diagnosis as well
as the use of a surrogate mother. Presently, the field of reproductive medicine is witnessing a
paradigm shift with new techniques being added and the same being educated to the people at
large. India, being at the forefront of reproductive medicine, has become a mecca for all the IVF

treatments available around the world. The Indian IVF sector accounts to around five billion
dollars and has around 500 plus IVF clinics across the country.
Catch 22
The present prosperity witnessed by the segment, is a result of various factors. From hi-tech
infrastructure, to effective treatment options to increased awareness to no regulations, all these
determinants have influenced growth for this sector in India. Moreover, experts observe a
correlation between the growth of the Indian IVF segment and the advancements in the world
wide web. Opines Dr Annirudh Malpani, MD, Malpani Infertility Clinic, Mumbai, "The Indian
IVF segment has been on the growth path since 1980s, but the major chance came in with the
introduction of internet. Indians got a chance to interact with infertile patients using information
therapy." With a similar opinion Dr Kedar Ganla, Consultant - Fertility Physician and
Coordinator - IVF Department, Dr L H Hiranandani Hospital informs that a lot of information is
disseminated to patients using the internet that felicitate patients to understand the available
treatments options. He also mentions that apart from information doctors also provide
counselling using internet and skype to domestic as well as overseas patients.
While the advances in the IVF field has helped the Indian industry, it is not without a catch. The
situation currently is such that anyone can open an infertility or assisted reproductive technology
(ART) clinic; no permission is required to do so and there is no written said law that regulates
this practice. The industry only follows the guidelines laid down by the Indian Council of
Medical Research(ICMR ) that includes when, and by whom IVF can be performed. The
guidelines also provides for IVF, ICSI, egg donation, and surrogacy but not for the setting up of
the clinics that offer these techniques. Consequently, there is constant mushrooming of such
clinics around the country.
Thus, even while we reap the benefits of a budding industry, we also have to look out for the
pitfalls.
India and Fertility Tourism
India is fast becoming a favoured destination for medical tourism. It has become the mecca for
all treatment options for infertility and thereby opened new avenues for reproductive medical
tourism or better known as the fertility tourism. The key drivers for its growth being the
increasing number of infertility cases in the country and growing number of people from abroad
who flock to India seeking high-end treatments that come at a fraction of the price that they have
to pay abroad.
According to the medical tourism website of the Government of India, the combination of the
low cost of infertility treatment in India - nearly one-quarter of the cost in developed nations -
and the modern ART available here make India a top choice for infertility treatments. Fertility
clinics in countries like United Kingdom, Israel, Australia, France, Spain, and Denmark are
finding it increasingly difficult to meet the demand for donor eggs and hence turning to India.
Further on, benefits associated with fertility tourism are numerous. To name a few, fertility
tourism brings in more income, creates jobs, improves lives and contributes to overall economic
development. "Fertility tourism has brought in revenue worth 20 to 30 per cent annually. It has
also showcased India as a progressive and developed nation erasing the third world image that it
had about a decade ago, says, Dr Kaberi Banerjee, IVF Expert, Max Healthcare. Further on he
adds, "With the awareness of various infertility treatment options and it being available at a
much economical rate in India the international patients have started flocking to the country for
IVF services. An average IVF cycle in the US cost $ 10000 whereas in India it is available for
about $ 3000. The liberal guidelines of ICMR, allowing egg donation and surrogacy have

facilitated this. The easy availability of egg donors and surrogates in India has also encouraged
international patients to consider India as one of the suitable countries to persue their treatment.
Additionally, India is also equipped with some of the finest international IVF centres and highly
qualified IVF doctors."
When we talk about fertility tourism the first thing that comes to mind is people from abroad
coming to seek IVF treatment. However, in the real terms, fertility tourism has two aspects—
domestic as well as international tourism. Explains Dr Jaydeep Tank, Renowned Fertility Expert
and Board Member, Birla IVF, "Fertility tourism and medical tourism in general have two large
and distinct components, one is the domestic tourism where Indians from rural or semi-urban
areas come to the metros to seek treatment which is simply not available in their locality. The
other component is of course the much talked about international tourism which has been in the
limelight for perhaps not always the right reasons." While the spotlight still remains on
international fertility tourism, is it justified to say that the sector earns its maximum profits from
foreign patients?
Replying to this question Dr Tank says, "The benefits of fertility tourism are manifold and
accrue not only to the patients seeking treatment but have a cumulative effect on the centre
treating such patients. The patients benefit from the typically personalised treatment that can be
offered here besides enjoying the tremendous cost advantages offered in our country. They also
benefit by availing these treatments at success rates comparable to the best in the world. It would
be incorrect to say that international fertility tourism is responsible for the growth of the IVF
clinics in India, there is however no denying the fact that it has shaped the perception of IVF in
India, domestically and internationally to a large extent. I would actually go so far as to say that
the perceptions shaped are actually out of proportion to the amount of international fertility
tourism taking place. A very large majority of centres still derive most of their work from the
domestic sector."
The Legal and Ethical Dilemma

Despite the fact that the industry enjoys the fruits of increased domestic and foreign income that
flows in through fertility tourism, it stumbles onto many legal and ethical obstacles that could be
detrimental for its growth. This is because we do not have any formal regulations that can play as
a watchdog for this thriving baby-making industry and there is ample scope for legal
manipulations and corruption. So the question here is, should the industry celebrate the economic
gain that this market brings in or should we be more circumspect about the lack in regulations?
Recalling the social ostracisation faced by Dr Mukhopadhyay despite his ground-breaking
achievement and looking at the present situation it wouldn't be wrong to say that the field has
always been mired in controversy. The subject seems to be as delicate as sex detection and its
legal aspects. Getting to the crux of the subject, brings to light certain glitches that include
bureaucratic negligence and social reprimand that are the actual causes for concern. Analysing
the legal, moral and ethical concerns, Dr Nikhil Datar, Consultant Gynaecologist, Dr Balabhai
Nanavati Hospital and Medico-legal Consultant responds, "Since we do not have a proper law in
place different people will have different opinions. Morality and ethics is a grey area. Therefore,
questions such as can a grandmother become a mother of the child? or can a close relative donate
their eggs or sperms? will definitely draw public attention. Moreover, it is important to note that
what could be morally correct for one person could be a vile thing for the another. Basically, this
sector is market-and-wish driven because there is no binding law; so technically everyone is free
to do what they like. Therefore, a law in place is a must." Getting to the intricacy of the situation,

Dr Tank states, "As IVF technology develops, it raises questions in all aspects of life, as the
treatments are concerned with the creation and sustenance of life itself. When IVF was
introduced and the first IVF baby was born in the UK, there was a maelstrom of debate which
surrounded the treatment. Questions regarding the boundaries of procreation were raised and the
treatments were derogated as physician's attempts to play God and interfere in the creation of
life. As treatment progressed there has been a gradual acceptance in the minds of most. When
gamete donation and surrogacy started being widely accessed as treatments a whole new set of
questions emerged, not only with regard to the legal issues but even social ones with the welfare
of the women/men who donate gametes and undertake to be surrogates. The legal issues can
sometimes be very complex and quite clearly there are times when there is a need to revamp
laws, as the existing laws are simply not equipped to take such issues under consideration."
According to Dr Banerjee, legal issues include accreditation of IVF centre, personnel, and
consent of patients. Drawing attention towards medico-legal cases concerning IVF he says,
"There are medico-legal cases filed by patients on doctors for negligence when there is a failure
of cycle. It is however a known fact that not all IVF cycles can be successful. There are also
cases regarding using donor gametes without consent. The ethical issues of IVF would involve
known vesus anonymous donation of gametes. The renumeration given to egg donors and
surrogates has also been questioned in view of whether one should be paid for human parts and
organs or whether it should be completely altruistic."
Critically Looked upon

On one hand the industry is battling with ethical and legal squabbles and on the other hand the
growing number of western couples seeking donors and surrogates in India has prompted critics
to view the practice of egg donation and surrogacy as exploitation of poor women. Critics
express their concern and believe that women may be coerced by their husbands or in-laws or
middlemen into becoming surrogates. Notwithstanding these concerns raised by critics, the
industry strongly dissents to this allegation. Dr Malpani firmly says, "I do not agree that this
practice can be exploitative. Women who opt to become surrogates do it of their own, free will.
They normally do it to provide financial support to their families." Agreeing to this point, Dr
Ganla, replies, "It is not an exploitative practice. It gives mutual benefit to both parties if done
ethically under proper legal cover. It gives women of lower socio-economic class a chance for
self empowerment. These women can contribute for the future plan of their family and for their
children's education." On the same lines, Dr Banerjee says, " I disagree on the criticism.
Professional egg donors and surrogates come from a low socio-economic status, the
renumeration given to them is substantial, some times they cannot earn that in their lifetime. It
would be considered exploitative if the process is without consent, non-voluntary, and the
renumeration is shared by their spouses, relatives and agents."
Not denying the possibility of exploitation, Dr Tanks presumes, that there is a potential for
exploitation but till such time as a law and regulations are in place self regulation on behalf of
the centres and physician is paramount to make sure that it does not take place.
The General Guidelines
Since fertility tourism continues to be fraught with questions concerning reproductive autonomy,
free-will and coercion, it is vital for all IVF providers and practitioners to follow certain
guidelines provided by the ICMR. Nevertheless, there is no record as to how many IVF centres
in India follow these guidelines.
Experts opine that keeping in mind the lack of regulations in our country, IVF practitioners and

ART providers should check for all the legal implications followed by the home countries from
which these prospective parents come. For example, countries such Dubai, Canada and New
Zealand have stringent laws for IVF. In such cases, it is a must to consider the legal implications
of prospective parents coming from these countries to seek IVF treatments; especially egg
donation and surrogacy. "Technically, we must follows the legal process of our country but
unfortunately we do not have a law. So, in such cases practitioners should go one step ahead and
ask the prospective parents to check for the legal implications in their country, get the required
permissions for their embassy and then find out whether the Indian Government allows
permission to perform these procedures. This helps in protecting the rights of the child born out
of these procedures," asserts Dr Datar.
The ART Bill 2010

In view of all the above and in public interest, the Assisted Reproductive Technology
(Regulation) Bill which was first drafted in 2008 and has been altered and re-framed in 2010
provides a national framework for married and unmarried couples as well as single parents
seeking surrogacy in India. It also aims to regulate and supervise the ART procedure happening
throughout the country.
The bill details procedures for accreditation and supervision of infertility clinics (and related
organisations such as semen banks) handling spermatozoa or oocytes outside of the body, or
dealing with gamete donors and surrogacy, ensuring that the legitimate rights of all concerned
are protected, with maximum benefit to the infertile couples/individuals within a recognised
framework of ethics and good medical practice.
The bill also recommends setting up State Boards and a National Advisory Board that will
exercise the powers and duties conferred on them by the legislation. The ART bill also provides
special guidelines for foreign nationals seeking surrogacy in India.
Looking at all the constraints concerning the field, the ART Bill 2010 seems to be quiet fare and
balanced. The positive part of the bill is that it states that ART bank and ART clinics should be
separate entities. This is in order to promote more transparency; especially in cases that include
egg donation and surrogacy.
The other good side of the bill is its well drafted guidelines for regulating surrogacy in India that
covers special provisions for the surrogate and the child as well. Additionally, the bill also
mentions the exact age limit for males (21-45 years) and females (21-35 years) to donate semen
and oocytes.
Understanding that no law can be perfect, if we critically analysis the provisions of the draft it is
evident that the said draft has certain lacunae that can be improved. According to Dr Abha
Majumdar, Director, Center of IVF and Human Reproduction, Sir Ganga Ram Hospital, the bill
needs to address areas wherein relatives of the patients would want to donate their eggs. She also
points out to the need to encourage egg banking and sperm banking that should be registered
under this law. Further on, she appeals that IVF practitioners should not be allowed to get
involved in the entire compensation procedures.
Dr Datar suggests for an addition in the already existing chapters. This chapter should clearly
specify the responsibilities, liabilities and rights of all the stakeholders involved the process
including the doctor, the prospective parents and the donors or surrogates. Pointing out the other
loop holes of the bill, experts appeal that the law implying to this practice should be free from
bureaucracy.
Government's Take

In view of the fact, that industry is strongly in favour of promoting the IVF sector, the question
that comes to mind is how much support does the Government of India provide to this industry?
Is the government in favour of fertility tourism? And does the government consider regulating
this sector?
The industry opinion here is at variance. Dr Banerjee feels that the very fact that the ICMR has
allowed professional surrogates and egg donors proves that the government is encouraging
fertility tourism. The government is also encouraging IVF by opening it in government-run
institutions and encouraging medical conferences on these subjects. Dr Ganla also agrees that the
government encourages corporate hospitals fto take different accreditations which ensure quality
control and hence attracts more overseas clients. Dr Tank believes that the government creates a
positive environment for fertility tourism. But he also mentions that much more needs to be
done.
However, Dr Malpani and Dr Datar are of a different opinion, they believe that government does
not support this industry in full. They have a point though. If the government had been so
proactive in promoting the IVF sector wouldn't we have a law in place by now?
Need of the Hour
All in all, these legal wranglings and public debate surrounding this sector point out that a
binding law which can fulfill the needs of all the parties involved is a must. As things go by, we
must understand that when a law comes into existence, so comes in the red tapeism and
bureaucracy. Therefore, the industry needs to be more vigilant in terms of their practice.
Reflecting on the absolute need for a law, Dr Malpani says "I think the ART Bill 2010 is a useful
starting point. I am sure it will evolve over time, as we get additional inputs from patients and
society. Like every bill, it does have certain lacunae, but it's far better than operating in the
current vacuum which exists at present". Agreeing on this the same Dr Tank concludes that there
cannot be a perfect law and like practice, the law also needs to evolve with time.
Domestic Violence
Domestic Violence in India
India has adopted the Convention on the Elimination of All Forms of Discrimination against
Women and the Universal Declaration of Human Rights, both of which ensure that women are
given equal rights as men and are not subjected to any kind of discrimination. The Constitution
of India also guarantees substantive justice to women. Article 15 of the Constitution provides for
prohibition of discrimination against the citizens on grounds of religion, race, caste, sex or place
of birth or their subjection to any disability, liability or restriction on such grounds. Article 15 (3)
gives power to the legislature to make special provision for women and children. In exercise of
this power, the Protection of Women from Domestic Violence Act was passed in 2005.
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005

MAIN FEATURES OF THE ACT
DEFINITIONS
Domestic Violence: The term "domestic violence" includes elaborately all forms of actual abuse
or threat of abuse of physical, sexual, verbal, emotional and economic nature that can harm,

cause injury to, endanger the health, safety, life, limb or well-being, either mental or physical of
the aggrieved person. The definition is wide enough to cover child sexual abuse, harassment
caused to a woman or her relatives by unlawful dowry demands, and marital rape.
The kinds of abuse covered under the Act are:
Physical Abuse-
 an act or conduct causing bodily pain, harm, or danger to life, limb, or health;
 an act that impairs the health or development of the aggrieved person;
 an act that amounts to assault, criminal intimidation and criminal force.
Sexual Abuse-
any conduct of a sexual nature that abuses, humiliates, degrades, or violates the dignity of a
woman.
Verbal and Emotional Abuse-
 any insult, ridicule, humiliation, name-calling;
 insults or ridicule for not having a child or a male child;
 repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
Economic Abuse-
 depriving the aggrieved person of economic or financial resources to which she is entitled under
any law or custom or which she acquires out of necessity such as household necessities, stridhan,
her jointly or separately owned property, maintenance, and rental payments;
 disposing of household assets or alienation of movable or immovable assets;
 restricting continued access to resources or facilities in which she has an interest or entitlement
by virtue of the domestic relationship including access to the shared household.
 Domestic Relationship: A domestic relationship as under the Act includes live-in relationships
and other relationships arising out of membership in a family.
Beneficiaries under the Act:
Women: The Act covers women who have been living with the Respondent in a shared
household and are related to him by blood, marriage, or adoption and includes women living as
sexual partners in a relationship that is in the nature of marriage. Women in fraudulent or
bigamous marriages or in marriages deemed invalid in law are also protected.
Children: The Act also covers children who are below the age of 18 years and includes adopted,
step or foster children who are the subjects of physical, mental, or economical torture. Any
person can file a complaint on behalf of a child.
Respondent: The Act defines the Respondent as any adult male person who is or has been in a
domestic relationship with the aggrieved person and includes relatives of the husband or male
partner.
Shared Household: A shared household is a household where the aggrieved person lives or has
lived in a domestic relationship either singly or along with the Respondent. Such a household
should be owned or tenanted, either jointly by both of them or by either of them, where either of
them or both of them jointly or singly have any right, title, interest or equity in it. It also includes
a household that may belong to the joint family of which the Respondent is a member,
irrespective of whether the Respondent or person aggrieved has any right, title or interest in the
shared household.
RIGHTS GRANTED TO WOMEN

Right to reside in a shared household:
The Act secures a woman's right to reside in the matrimonial or shared household even if she has

no title or rights in the household. A part of the house can be allotted to her for her personal use.
A court can pass a residence order to secure her right of residence in the household.
The Supreme Court has ruled in a recent judgment that a wife's claim for alternative
accommodation lie only against her husband and not against her in-laws and that her right to
'shared household' would not extend to the self-acquired property of her in-laws.
Right to obtain assistance and protection:
A woman who is victimized by acts of domestic violence will have the right to obtain the
services and assistance of Police Officers, Protection Officers, Service Providers, Shelter Homes
and medical establishments as well as the right to simultaneously file her own complaint under
Section 498 A of the Indian Penal Code for matrimonial cruelty.
Right to issuance of Orders:
She can get the following orders issued in her favour through the courts once the offence of
domestic violence is prima facie established:
Protection Orders: The court can pass a protection order to prevent the accused from aiding or
committing an act of domestic violence, entering the workplace, school or other places
frequented by the aggrieved person, establishing any kind of communication with her, alienating
any assets used by both parties, causing violence to her relatives or doing any other act specified
in the Protection order.
Residence Orders: This order ensures that the aggrieved person is not dispossessed, her
possessions not disturbed, the shared household is not alienated or disposed off, she is provided
an alternative accommodation by the Respondent if she so requires, the Respondent is removed
from the shared household and he and his relatives are barred from entering the area allotted to
her. However, an order to remove oneself from the shared household cannot be passed against
any woman.
Monetary Relief: The Respondent can be made accountable for all expenses incurred and losses
suffered by the aggrieved person and her child due to the infliction of domestic violence. Such
relief may include loss of earnings, medical expenses, loss or damage to property, and payments
towards maintenance of the aggrieved person and her children.
Custody Orders: This order grants temporary custody of any child or children to the aggrieved
person or any person making an application on her behalf. It may make arrangements for visit of
such child or children by the Respondent or may disallow such visit if it is harmful to the
interests of the child or children.
Compensation Orders: The Respondent may be directed to pay compensation and damages for
injuries caused to the aggrieved person as a result of the acts of domestic violence by the
Respondent. Such injuries may also include mental torture and emotional distressed caused to
her.
Interim and Ex parte Orders: Such orders may be passed if it is deemed just and proper upon
commission of an act of domestic violence or likelihood of such commission by the Respondent.
Such orders are passed on the basis of an affidavit of the aggrieved person against the
Respondent.
Right to obtain relief granted by other suits and legal proceedings:
The aggrieved person will be entitled to obtain relief granted by other suits and legal proceedings
initiated before a civil court, family court or a criminal court.
LIABILITIES AND RESTRICTIONS IMPOSED UPON THE RESPONDENT
He can be subjected to certain restrictions as contained in the Protection and Residence order
issued against him.

The Respondent can be made accountable for providing monetary relief to the aggrieved person
and her children and pay compensation damages as directed in the Compensation order.
He has to follow the arrangements made by the court regarding the custody of the child or
children of the aggrieved person as specified in the Custody order.
The Act does not permit any female relative of the husband or male partner to file a complaint
against the wife or female partner.
AUTHORITIES RESPONSIBLE AND THEIR FUNCTIONS
The Act provides for appointment of Protection Officers and Service Providers by the state
governments to assist the aggrieved person with respect to medical examination, legal aid, safe
shelter and other assistance for accessing her rights.
Protection Officers: These are officers who are under the jurisdiction and control of the court and
have specific duties in situations of domestic violence. They provide assistance to the court in
preparing the petition filed in the magistrate's office, also called a Domestic Incident Report. It is
their duty to provide necessary information to the aggrieved person on Service Providers and to
ensure compliance with the orders for monetary relief.
Service Providers: These refer to organizations and institutions working for women's rights,
which are recognized under the Companies Act or the Societies Registration Act. They must be
registered with the state government to record the Domestic Incident Report and to help the
aggrieved person in medical examination. It is their duty to approach and advise the aggrieved
person of her rights under the law and assist her in initiating the required legal proceedings or
taking appropriate protective measures to remedy the situation. The law protects them for all
actions done in good faith and no legal proceedings can be initiated against them for the proper
exercise of their powers under the Act.
Court of first class Judicial Magistrate or Metropolitan Magistrate: This shall be the competent
court to deal with cases of domestic violence and within the local limits of this court, either of
the parties must reside or carry on business or employment, or the cause of action must have
arisen. The Magistrate is allowed to hold proceedings in camera if either party to the proceedings
so desires.
General duties of Police Officers, Service Providers and Magistrate: Upon receiving a complaint
or report of domestic violence or being present at the place of such an incident, they are under a
duty to inform the aggrieved person of:
 her right to apply for obtaining a relief or the various orders granted under the Act;
 the availability of services of Service Providers and Protection Officers;
 her right to obtain free legal services; and
 her right to file a complaint under Section 498 A of the Indian Penal Code.
Counselors: The Magistrate may appoint any member of a Service Provider who possesses the
prescribed qualifications and experience in counseling, for assisting the parties during the
proceedings.
Welfare experts: The Magistrate can appoint them for assisting him in discharging his functions.
In charge of Shelter Homes: The person in charge of a shelter home shall provide shelter to the
aggrieved person in the shelter home upon request made by the aggrieved person, a Protection
Officer or a Service Provider on her behalf.
In charge of Medical Facilities: The person in charge of a medical facility shall provide medical
aid to the aggrieved person upon request made by the aggrieved person, a Protection Officer or a
Service Provider on her behalf.
Central and State Governments: Such governments are under a duty to ensure wide publicity of

the provisions of this Act through all forms of public media at regular intervals, to provide
awareness and training to all officers of the government, and to coordinate the services provided
by all Ministries and various Departments.
PROCEDURE OF FILING COMPLAINT AND THE COURT'S DUTY
The aggrieved person or any other witness of the offence on her behalf can approach a Police
Officer, Protection Officer, and Service Provider or can directly file a complaint with a
Magistrate for obtaining orders or reliefs under the Act. The informant who in good faith
provides information relating to the offence to the relevant authorities will not have any civil or
criminal liability.
The court is required to take cognizance of the complaint by instituting a hearing within three
days of the complaint being filed in the court.
The Magistrate shall give a notice of the date of hearing to the Protection Officer to be served on
the Respondent and such other persons as directed by the Magistrate, within a maximum period
of 2 days or such further reasonable time as allowed by the Magistrate.
The court is required to dispose of the case within 60 days of the first hearing.
The court, to establish the offence by the Respondent can use the sole testimony of the aggrieved
person. Upon finding the complaint genuine, the court can pass a Protection Order, which shall
remain in force till the aggrieved person applies for discharge. If upon receipt of an application
from the aggrieved person, the Magistrate is satisfied that the circumstances so require, he may
alter, modify or revoke an order after recording the reasons in writing.
A complaint can also be filed under Section 498 A of the Indian Penal Code, which defines the
offence of matrimonial cruelty and prescribes the punishment for the husband of a woman or his
relative who subjects her to cruelty.
PENALTY/PUNISHMENT
For Respondent: The breach of Protection Order or interim protection order by the Respondent is
a cognizable and non-bailable offence. It is punishable with imprisonment for a term, which may
extend to one year or with fine, which may extend to twenty thousand rupees or with both. He
can also be tried for offences under the Indian Penal Code and the Dowry Prohibition Act.
For Protection Officer: If he fails or does not discharge his duties as directed by the Magistrate
without any sufficient cause, he will be liable for having committed an offence under the Act
with similar punishment. However, he cannot be penalized without the prior sanction of the state
government. Moreover, the law protects him for all actions taken by him in good faith.
APPEAL
An appeal can be made to the Court of Session against any order passed by the Magistrate within
30 days from the date of the order being served on either of the parties.
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES 2005
The Act empowers the Central government to make rules for carrying out the provisions of the
Act. In exercise of this power the Central government has issued the Protection of Women from
Domestic Violence Rules 2005 relating to the following matters:
 the qualifications and experience to be possessed by a Protection Officer and the terms and
conditions of his service;
 the form and manner in which a domestic incident report may be made;
 the form and the manner in which an application for Protection Order may be made to the
Magistrate;
 the form in which an application for legal aid and services shall be made;
 the other duties to be performed by the Protection Officer;

 the rules regulating registration of Service Providers;
 the means of serving notices;
 the rules regarding counseling and procedure to be followed by a Counselor;
 the rules regarding shelter and medical assistance to the aggrieved person;
 the rules regarding breach of Protection Orders.
Same Sex Marriage

History:
Homosexuality has an ancient history in India. Ancient texts like Rig-Veda which dates back
around 1500 BC and sculptures and vestiges depict sexual acts between women as revelations of
a feminine world where sexuality was based on pleasure and fertility. The description of
homosexual acts in the Kamasutra, the Harems of young boys kept by Muslim Nawabs and
Hindu Aristocrats, male homosexuality in the Medieval Muslim history, evidences of sodomy in
the Tantric rituals are some historical evidences of same-sex relationships.
However, these experiences started losing their significance with the advent of Vedic
Brahmanism and, later on, of British Colonialism. Giti claims that Aryan invasion dating to 1500
B.C began to suppress homosexuality through the emerging dominance of patriarchy. In the
Manusmriti there are references to punishments like loss of caste, heavy monetary fines and
strokes of the whip for gay and lesbian behaviour. In the case of married women, it is mentioned
that 'luring of maids' is to be punished by shaving the women bald, cutting of two fingers and
then parading her on a donkey. Manu's specifications of more severe punishments for married
women can suggest either a wide prevalence of such relationships among married women or a
greater acceptance of these practices among unmarried women. In either cases, these references
point to the tensions in the norms of compulsory heterosexuality prescribed by Brahmanical0
partite. Both sexual systems coexisted, despite fluctuations in relative repression and freedom,
until British Colonialism when the destruction of images of homosexual expression and sexual
expression in general became more systematic and blatant.
The homophobic and Victorian puritanical values regarded the display of explicit sexual images
as 'pornographic and evil'. The Western view, since the time of Colonial expansion, has been
strongly influenced by reproductive assumption about sexuality. These puritanical values and
attitudes were in turn mapped into the interpretation of sexual activity among colonial people
which is evident from the responses to all forms of 'unnatural' sexual practices. The Indian
psyche accepted the Western 'moral and psychological' idea of sexuality being 'pathological'
rather than the natural expression of desire, which once used to be part of Indian culture.
The last century witnessed major changes in the conception of homosexuality. Since 1974,
homosexuality ceased to be considered an abnormal behaviour and was removed from the
classification of mental disorder. It was also de-criminalized in different countries. Since then
various states across the globe enacted anti-discriminatory or equal opportunity laws and policies
to protect the rights of gays and lesbians. In 1994, South Africa became the first nation to
constitutionally safeguard the rights of lesbians and gays. Canada, France, Luxembourg,
Holland, Slovenia, Spain, Norway, Denmark, Sweden and New Zealand also have similar laws.
In 1996, the US Supreme Court ordered that no state could pass legislation that discriminated
against homosexuals. In India, so far no such progressive changes have taken place and the
homosexuals remain victims of violence in different forms
supported by the state and society.

The issue of homosexual conduct has come to this fore in recent legal and political debates for
three main reasons:
(I). Liberalization of the law (in the U.K., by the Sexual Offences Act 1967 as amended in 2000
and some other countries by a similar legislation) has brought with it a change in social attitudes,
so that the stigma attached to the homosexuality has to a greater extent disappeared.
(II). Campaigns for lesbian and gay rights especially in the U.S. have taken on an increasingly
radical character, arguing for an end to all forms of discrimination against homosexuality, and
even for the legalization of same sex marriages.
(III).The outbreak of HIV/AIDS which has been spread in western countries to a great extent by
homosexual activity between males, has led to accusations and counter-accusations, often of a
bitter kind. Spain, Belgium and the Netherlands, as well as Canada in allowing same-sex
marriages. Same-sex acts are punishable by death in nine countries around the world.
Arguments by those who don't want it to be legalized;

This is more of a religious debate then a political one. Large number of people specially in India
are opposing it, as they say it is unnatural, uncouth and immoral. Prime Minister Mr. Manmohan
Singh on asking what did he think about the Canadian law of homosexual marriages he replied it
is not appreciated. Those people who are opposing it their arguments are based on religious and
natural law belief. Some people don't consider them as natural because they do not produce kids.
Is it sacred if gay marriage is allowed God created Adam and Eve, we never find statements in
Genesis about Adam and Steve. Why break God's law by allowing gay marriage If nature wanted
same-sex people to live together, there would only be one sex rather than different sexes. Our
society is based on opposite sex marriage. If gay marriage is OK, then why can't I marry my
cousin, or my sister, or my cat. Don't I have the same rights as gays or are they now above the
rest of us. Don't forget that the law is specific on this. It was created to keep the fabric of society
together. It goes against the laws of the land that have been used for hundreds of years and were
based on the basis of the commandments.
How Law Deals With It In India:
There is no explicit mention of homosexuality or hemophilia in any of the statute books of India.
A person cannot be prosecuted for being a homosexual or hemophilic. But the sexual act of
sodomy is a criminal offence. The major provisions of criminalisation of same-sex acts if found
in the Section 377 of the Indian Penal Code (IPC) of 1860.
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or
animal shall be punished with imprisonment of either description for a term which may extend to
ten years and should also be liable to fine.
The offence of homosexuality is read under this section as an Unnatural Offence. The term
Carnal Intercourse used in this section refers to sexual intercourse between men or in other
words, homosexual relationships. Section 377 of the Indian Penal Code, was enacted by the
British in 1860.
The Indian law against homosexuality seems to be too harsh. The Constitutional validity of
section-377 of IPC was challenged in the Delhi High Court as being violative of fundamental
rights guaranteed under the Indian Constitution. Here it may be noted that, in practically all

crimes against human body listed under the Indian Penal Code, some sort of physical violence or
coercion is an essential element of crime. The only exception is in the favour of section-377,
which criminalizes sexual activity that leaves no victims. In the history of the statute from, 1860
in 1992 there was only 30 cases in the High Courts and Supreme Court. "The small number of
cases filed under this section shows that this section is redundant and outdated and needs to be
repealed.
The Central Government has informed the Delhi High Court that homosexuality cannot be
legalized in India as the Indian society is intolerant to the practice of homosexuality/lesbianism.
To paraphrase, three things can be said about the government's stance:
[a] the state has not just a function to, but actually a duty to stop unnatural sex, or else the social
order would break down, law loose its legitimacy et al;
[b] that our society does not tolerate homosexuality, and notwithstanding the universality of
human rights or the universal applicability of our fundamental rights and freedoms, its
criminalization is therefore justified; and
[c] that it is really not our thing, its something that happens out there in the west, we do not have
to copy that. In other words the three pillars of the classic culture arguments to criminalize the
likes of us.
Why Should Be Legalized:

Arguments in favour of Decriminalizing Homosexuality: Gay and lesbian rights activists from
various parts of the countries were protesting for their rights and for decriminalizing the
homosexual conduct. There is a big debate in our country too- whether it should be legalized or
not. I am giving some of the arguments in favour of decriminalizing it, specifically in Indian
context- in view of Section-377 of the Indian Penal Code.
(1) It violates right to liberty guaranteed under Article-21 of the Indian Constitution which
covers private consensual sexual relations. The fundamental right to liberty (under Article-21)
prohibits the state from interfering with the private personal activities of the individual. The
concept of privacy is so broad that no comprehensive and all encompassing definition of the term
can be given. In the case National Coalition for Gay and Lesbian equality V. Ministry of Justice ,
the South African court held that, Privacy recognizes that we all have a right to a sphere of
private intimacy and autonomy which allows us to establish and nurture human relationships
without interference from the outside community. Even at the international level, the right to
privacy has been recognized in the favour of lesbians and gay man.
(2) Criminalization of homosexual conduct is unreasonable and arbitrary:

Infringement of, the right to equal protection before law requires the determination of whether
there is a rational and objective basis to the classification introduced. There should be a just and
reasonable nexus between the classification and the object sought to be achieved by the
legislation. Section-377 of IPC, its legislative objective is to criminalize all the sexual activities
which are against the order of nature, thus punishing the unnatural sex. Section-377 assumes that
natural sexual act is that which is performed for procreation. Hence, it thereby labels all forms of
non-procreative sexual act as unnatural. This gives a very narrow view to the distinction between
the procreative and non-procreative sexual act. Hence, the legislative intent of creating a public
code of sexual morality has no rational nexus with the classification created. Further the very

object of the section is vague, unreasonable, arbitrary and based up on the stereotyped notion that
sex is only for procreation. Now if this presumption is accepted is correct then, what justifies the
policies of family planning and the use of the contraceptive devices
(3) Section-377 discriminates on the basis of sexual orientation: forbidden under Article-15 of
the Constitution. Article-15 prohibits discrimination on several grounds, which includes Sex. By
prohibiting discrimination on the basis of sex, article-15 establishes that there is no standard
behavioral pattern attached to the gender. The prohibition on non-procreative sexual acts
imposed by section-377 prescribes traditional sexual relations upon men and women. In so doing
the provision discriminates against the homosexuals on the basis of their sexuality and therefore
constitutes discrimination on the basis of sexual orientation.
(4). Section-377 violates the enjoyment of civil laws and gay men and lesbians and leads to other
adverse effects: Section-292 of IPC punishes Obscenity; the current definition of obscenity can
lead it to incriminate the gay and lesbian writings. As male homosexuality is a criminal offence,
the presumption is that it is something depraved and can corrupt the minds and bodies of the
persons. In the prevailing atmosphere any writing about the lesbians and the gay men can be
criminalized, as homosexuality is treated as something immoral or depraved. The workman's
Compensation Act, 1923- provides that in case of death caused by injury at the work place, the
dependents of the employee are entitled to receive the compensation from the employer, the
dependents will include a widow, minor legitimate son, unmarried daughter, widowed mother
and an infirm son or daughter.
Thus a gay or a lesbian couple cannot claim the benefits under this section. This is not an
isolated example and there are other such Acts that are discriminatory towards homosexuals. The
Provident Fund Scheme, 1952 and the Payment Of Gratuity Act, 1972 define family in such
away that a lesbian or gay couple. I end this issue with a quote ?There are several sections in the
Indian Penal Code which are anachronistic in a changed world. Section 377 is a prime example.
As a matter of fact, Section 377 as it stands, would have made what Clinton did to Monica
Lewinsky or rather what Monica Lewinsky provided to Clinton, an offence. I am being discreet,
because after all, some things can only be dealt with orally and cannot be put down on paper!
The crucial words are "against the order of nature." The possibilities are immense and the
imagination can well run riot. Perhaps the way out is now to argue that nature and its various
orders have themselves changed.
Why There Is Need For Legal Recognition:
A recent study of sexual practices in rural India by the United Nations Population Fund
(UNFPA) found that `male-to-male sex is not uncommon. In fact a higher percentage of men in
the study reported having male-to-male sex than sex with sex workers. This was true of both
married as well as unmarried men. Close to 10 per cent unmarried men and 3 per cent married
men reported having had sexual intercourse with other men in the past 12 months." The survey
covered 50 villages in five districts of five states with feedback on sexual practices from close to
3,000 respondents and in- depth interviews on intimate habits from 250 people. The data is
indicative of a reality the government is either unable or unwilling to see.
Love is love. The real threat to marriage is the alarmingly high divorce rate. Marriage is also a
legal joining of two individuals. People who are not religious choose to get married in a registry
office and not in church. Marriage shows the strongest commitment you can make to one

another. Gay men and lesbians are just as human and have the same needs and desires as
heterosexual human beings. I fail to see what God has to do with this Marriage in this instance is
not religious, but a legal joining. Getting married is the ultimate way of showing your love and
commitment to your partner, so why should gay people be deprived of this right. Who are we to
sit and judge anyway. Same sex marriages should be legalized. If people find gay relationships
contrary to their religion, it is up to them to refrain. Those who do not share their religious
opinions should be free to make their own choice on this as on other issues. Gay men and
lesbians are just as human and have the same needs and desires as heterosexual human beings.
The argument that same sex marriages should not be made legal "because they do not produce
kids" is ridiculous. Should heterosexual couples over 50 not be allowed to marry as they cannot
produce kids either? If two people love each other and want to unite their destinies, then it is a
beautiful thing which should be celebrated. Whether it is called "marriage" or "life pact" does not
matter. Same-sex unions harm no one; one's support or opposition to this is a matter of personal
belief and morality, with which the government has no business to interfere.
The universality of Human rights demands that prevailing and dominant cultural and social
norms cannot be invoked in a manner as to circumvent or restrain fundamental and constitutional
rights. If we were to accept the government's arguments in the Delhi high court case, then many
of the progressive legislations in my country would never have been enacted. For example, even
today there are many men who think that tradition gives them a right to beat up their wives, or
that they deserve to get a very fat dowry just because they were born with a penis. If we give in
to these cultural beliefs, then there is nothing to turn round the legislations that we have made to
stop violence against women or dowry and dowry related deaths
Conclusion
On the basis of the whole discussion on the aspect of same sex marriage that is Should it be
legalized or not. This is more of a religious debate then a political one. In which I have given my
arguments in favour of decriminalizing it, I finally conclude by saying that homosexuality is not
an offence, it is just a way of pursuit of happiness, a way to achieve sexual happiness or desire. I
can see absolutely no reason, apart from blind prejudice, which prevents two gay people going
through a civil ceremony which will give them the rights and securities which heterosexual
couples enjoy. Marriage is a sign of commitment and love. If two men or two women want to
show that commitment, how does that destroy or damage the ideals of marriage. In my view, it
clearly demonstrates it. Aren't we living in an age which respects the individual's right to choose
Isn't India supposed to be the land of the free In our society people have branded homosexuals as
queer. Yet homosexuality is not new nor is it against the Indian culture, it has always existed and
with much lesser prosecution, that under Section-377 of the IPC, which is based on British
Offences against the Persons Act.
What should be the right approach to deal with same sex marriages, the issues are quite vast and
complex. However, the desirability and feasibility of such an approach remain to be ascertained.
In any event there is a growing conviction that our present method of criminalizing the same sex
sexual activity neither helps the homosexuals nor protects the society in general. We thus need to
legitimate same sex marriages in order to move forward in the direction of human rights.

CONSTITUTIONAL LAW-I (203)
Definition
Constitution means a document having a special legal sanctity which sets out the frame-work and
the principal functions of the organs of the Government of a State and declares the principles
governing the operation of those organs.
The term constitutional law has been defined by many writers. Hibbert defines Constitutional
Law as “the body of rules governing the relation between the sovereign and his subjects and the
different parts of the sovereign body”.
According to Dicey: “Constitutional law includes all rules which directly or indirectly affect the
distribution or exercise of the sovereign power of the State. Hence it includes all rules which
define the members of the sovereign power; all rules which regulate the relation of such
members to each other or which determine the mode in which the sovereign power or the
members thereof exercise their authority”.
Classification:
State can be either unitary or Composite. A unitary state in one which is not made up of
territorial divisions which are states them selves. The Central Government is all-powerful; such
states can make a constitutional law applicable to such government only. A composite state is
one which is itself an aggregate or group of constituent states. Composite states are also three in
kinds those are imperial, federal or confederal to which there exists central governments. The
constitutions also can be prepared as per the pattern of the governments are formed.
Sources of Constitution:
The framers of the Indian Constitution framed, the most important chapter of the Fundamental
Rights on the model of the American Constitution, and adopted the parliamentary system of
government from the United Kingdom; they have taken the idea of the directive principles of
state policy from the Constitution of Ireland, and added elaborate provisions relating to
Emergency in the light of the Constitution of the German Reich and the Government of India act,
1935.
Constitutional Conventions:
The first meeting of the Assembly was held on 9th December, 1946 as the sovereign Constituent
Assembly for India. On December 11, Dr.Rajendra Prasad was elected its permanent Chairman.
It was held in an atmosphere of uncertainty, because the Muslim League boycotted the
Assembly. In spite of this, the Assembly made a substantial progress and adopted and ‘Objective
Resolution’ which later became the Preamble of the Constitution. It appointed various
Committees to deal with different aspects of the Constitution. The report of the Committees
formed the basis on which the first draft of the constitution was prepared. On August 29, 1947, a
Drafting Committee of 7 members was set up under the Chairmanship of Dr.Ambedkar.
SALIENT FEATURES OF THE INDIAN CONSTITUTION:
1. The lengthiest Constitution in the world: The Indian Constitution is the lengthiest and the most
detailed of all the written Constitutions of the world. While the American Constitution originally
consisted of only 7 Articles, the Australian Constitution 128 Articles, the Canadian Constitution
147 Articles, the Indian Constitution originally consisted of 395 Articles divided into 22 Parts

and 8 Schedules, at present, the though still, the last numbered Article is 395 and the last
numbered part is 22, yet the actual articles are 460 in number and 25 parts at present and the
Schedules at present are 12 in number. Since 1950 Articles have been repealed and several
Articles have been added to the Constitution. This extraordinary bulk of the Constitution is due
to several reasons:-
(1) The framers of the Indian Constitution have gained experience from the working of all the
known constitutions of the world. They were aware of the difficulties faced in the working of
these constitutions. This was the reason that they sought to incorporate good provisions of those
constitutions in order to avoid defects and loopholes that might come in future in the working of
the Indian Constitution. The framers of the Indian Constitution framed, the most important
chapter of the Fundamental Rights on the model of the American Constitution, and adopted the
parliamentary system of government from the United Kingdom; they have taken the idea of the
directive principles of state policy from the Constitution of Ireland, and added elaborate
provisions relating to Emergency in the light of the Constitution of the German Reich and the
Government of India act, 1935.
(2) The Indian Constitution lays down the structure not only of the Central Government but also
of the States. The American Constitution leaves the states to draw up their own constitutions.
(3) The vastnesses of the country and peculiar problems relating to the language have added to
the bulk of the constitution. Establishment of a Sovereign, Socialist, Secular, Democratic
Republic: The Preamble of the Constitution declares that India to be a Sovereign, Socialist,
Secular, Democratic Republic. The word ‘Sovereign’ emphasizes that India is no more
dependent upon any outside authority. It means that both internally and externally India is
sovereign. The term ‘Socialist’ has been inserted in the Preamble by the Constitution 42nd
Amendment act, 1976. The word ‘Socialism’ is used in democratic as well as socialistic
Constitutions. The term ’Secularism’ means a State which has no religion of its own as
recognized religion of state. It treats all religions equally. In a secular State the State regulates
the relation between man and man. It is not concerned with the relation of man and God. The
term ‘Democratic’ indicates that the Constitution has established a form of Government which
gets its authority from the will of the people. The rulers are elected by the people and are
responsible to them. Justice, Liberty, Equality and Fraternity which are essential characteristics
of a democracy are declared in the preamble of the Constitution as the very objectives of the
Constitution. The Preamble to the Constitution declares that the Constitution of India is adopted
and enacted by the people of India and they are the ultimate master of the Republic. Thus the real
power is in hands of the people of India, both in the Union and in the States. The term ‘Republic’
signifies that there shall be an elected head of the State who will be the chief executive head. The
President of India, unlike the British King, is not a hereditary monarch but an elected person
chosen for a limited period. It is an essential ingredient of a Republic.
2. Parliamentary form of Government: The Constitution of India establishes a parliamentary
form of Government both at the Centre and the States. The framers of the Constitution preferred
the parliamentary system of government mainly for two reasons—(1) the system was already in
existence in India and people were well acquainted with it, (2) it provides for accountability of
ministers to the Legislature.
3. Unique blend of rigidity and flexibility: It has been the nature of the amending process itself in
federations which had led political scientists to classify federal Constitution as rigid. A rigid
Constitution is one which requires a special method of amendment of any of its provisions while
in flexible Constitution any of its provisions can be amended by ordinary legislative process. A

written Constitution is generally said to be rigid. The Indian Constitution, though written, is
sufficiently flexible.
4. Fundamental Rights: These rights are prohibitions against the State. The state cannot make a
law which takes away or abridges any of the rights of the citizens guaranteed in the part III of the
Constitution. If it passes such a law it may be declared unconstitutional by the courts. But mere
declaration of certain Fundamental Rights will be of no use if there is no machinery for their
enforcement.
5. Directive Principles of State Policy: The directive Principles of State Policy contained in part
IV of the Constitution set out the aims and objectives to be taken up by the States in the
governance of the country.
6. A Federation with strong centralizing tendency: The most remarkable feature of the Indian
Constitution is that being a federal Constitution it acquires a unitary character during the time of
emergency. During the proclamation of emergency the normal distribution of powers between
the centre and the States undergoes a vital change. The Union Parliament is empowered to
legislate on any subjects mentioned in State List. The Central Government is empowered to give
directions to States as to the manner in which it should exercise its executive powers.
7. Adult Suffrage: The old system of communal electorates has been abolished and the uniform
adult suffrage system has been adopted. Under the Indian Constitution every man and woman
above 18 years of age has been given the right to elect representatives for the legislature. The
adoption of the universal Adult Suffrage without any qualification either of sex, property,
taxation, or the like is a bold experiment in India, having regard to the vast extent of the country
and its population, with an overwhelming illiteracy. This suffrage is wider than all the
democratic countries which have given right to vote to their people.
8. An Independent Judiciary: Mere enumeration of a number of fundamental rights in a
Constitution without any provision for their proper safeguards will not serve any useful purpose.
Indeed, the very existence of a right depends upon the remedy for its enforcement. Unless there
is remedy there is no right, goes a famous maxim. For this purpose an independent and impartial
judiciary with a power of judicial review has been established under the Constitution of India. It
is the custodian of the rights of citizens. Besides, in a federal Constitution it plays another
significant role of determining the limits of power of the Centre and States.
9. A Secular State: A Secular State has no religion of its own as recognized religion of State. It
treats all religions equally.
10. Single Citizenship: Though the Constitution of India is federal and provides for dual polity
i.e., Centre and States, but it provides for a single citizenship for the whole of India. Every Indian
is the citizen of India and enjoys the same rights of citizenship no matter in what State he resides.
11. Fundamental Duties: The Fundamental Duties are indeed to serve as a constant reminder to
every citizen that while the Constitution has specifically conferred on them certain Fundamental
Rights, it also requires the citizens to observe certain basic norms of democratic behaviors.
UNIT 2
Parliament:
Parliament of India consists of three organs. The President, the Council of States (the Rajya
Sabha) and the House of the People (the Lok Sabha). Though President is not a member of either
House of Parliament yet, like the British Crown, he is an integral part of the Parliament and
performs certain functions relating to its proceedings. The President of America is not an integral
part of the Legislature. In India, the President summons the two Houses of Parliament, dissolves

the House of People and gives assent of Bills. It is to be noted that, though the Indian
Constitution provides for the parliamentary form of Government but unlike Britain, the
Parliament is not supreme under the Indian Constitution. In India, the Constitution is supreme. In
England, laws passed by the parliament cannot be declared unconstitutional while the Indian
Constitution expressly vests this power in the courts. The Indian Parliament is the creature of the
Constitution and derives all its powers from the Constitution. It is not a sovereign body.
Parliamentary Sovereignty:
What is Sovereignty? In its popular sense, the term sovereignty means supremacy or the right to
demand obedience. In the British Constitution, the legislative authority alone resides in
Parliament while executive authority resides in the crown. It is to be noted that, though the
Indian Constitution provides for the parliamentary form of Government but unlike Britain, the
Parliament is not supreme under the Indian Constitution. In India, the Constitution is supreme. In
England, laws passed by the parliament cannot be declared unconstitutional while the Indian
Constitution expressly vests this power in the courts. The Indian Parliament is the creature of the
Constitution and derives all its powers from the Constitution. It is not a sovereign body. Under
the Indian Constitution, Article 53 provides that the executive power of the Indian Union is
vested in the President of India. Legislative power resides in Parliament which comprises the
President, the Council of States and the House of the People. The Constitution can be amended
only when the amending bill after being duly passed as required by article 368, has received the
assent of the President. According to Austin, the sovereign possesses unlimited powers, but
experience shows that there is no power on earth which can wield unlimited powers. It is
suggested that sovereignty may be located in the constitution-amending body. However, that
cannot be done in India whose Constitution does not prescribe only one procedure for amending
the Constitution. Some amendments can be made by Parliament itself without the concurrence of
the States. Some amendments mentioned in the Proviso to Article 368 of the Indian Constitution
require in addition ratification by the legislatures of one-half of the States. As there is not one
constitution-amending body for all purposes, it is not the repository of sovereign power.
Moreover, the constitution-amending body functions rarely and it is artificial to ascribe
sovereignty to it.
Parliamentary Privileges:
Parliamentary Privilege is defined by Sir T.F.May as: “Some of the peculiar rights enjoyed by
each House collectively as a constituent part of the Parliament and by the members of each house
individually, without which they could not discharge their functions and which exceed those
possessed by other bodies or individuals. The constitutional provisions regarding privileges of
the state Legislature and Parliament are identical. Articles 105 and 194 provide for privileges of
the Legislature in India. While Article 105 deals with Parliament Article 194 deals with State
Legislatures. The Constitution expressly mentions two privileges (a) freedom of speech in the
legislature and (b) right of publication of its proceedings. Prior to the 44th Amendment with
regard to other privileges Article 105 (3) provided that the powers, privileges and immunities of
each House until they were defined by the Parliament shall be those of the House of Commons in
England. After the 44th Amendment Article 105 now provides that in other respects, the powers,
privileges and immunities of each House of Parliament, and of the members and the committees
of each House, shall be such as may from time to time be defined by Parliament, and, until so
defined, shall be those of that House and of its members and committees immediately before the
coming into force of the 44th Amendment Act, 1978. Freedom of Speech:- In England this
privilege of the House of Commons is well established. It has been given statutory recognition

by Bill of Rights in 1689 which says that the freedom of speech or debates in Parliament ought
not to be impeached or questioned in any court or out of Parliament. The Indian Constitution
expressly guarantees this privilege in Article 105 which says— “There shall be freedom of
speech in Parliament and that no Member of Parliament shall be liable to any proceedings in any
court in respect of anything said or any vote given by him in Parliament or any Committee
thereof.” This article thus gives absolute immunity from Courts for anything said within the four
walls of the House during the course of proceedings of the House or its Committees. So what is
protected is the speech within the House. Outside the House a member of House is a good as any
other citizen and if a member repeats or publishes a defamatory speech made by him within the
House, he does so on his own responsibility and risk and will be held liable for prosecution under
Section 500 of the Indian Penal Code.
Executive Power
The Constitution has conferred extensive executive powers on the President. The executive
power of the Union of India is vested in him. He is the head of the Indian Republic. All
executive functions are executed in the name of the President, authenticated in such manner as
may be prescribed by rules to be made by the President (Article 77). He has power to appoint the
Prime Minister and on his advice other Ministers of the Union, the Judges of the Supreme Court,
and the High Courts, the Governors of the States, the Attorney-General, the Comptroller and
Auditor-General, the Chairman and Members of the Public Service Commission, the Members of
the Finance Commission and Official Commissions, Special Officer for Scheduled castes and
Scheduled Tribes, Commission to report on the administration of Scheduled Areas, Commission
to investigate into the conditions of backward classes, Special Officer for Linguistic minorities.
The above-mentioned official holds their office during the pleasure of the President. This means
that he has the power to remove them from their post. This power, however, to be exercised
subject to the procedure prescribed by the Constitution. It is, however, to be noted that he has to
exercise his executive powers on the advice of the Council of Ministers. f. Collective
Responsibility of Cabinet: The basic principle of Parliamentary form of Government is the
principle of collective responsibility. In England, this principle works on well established
conventions. In India, this principle ensured by marking specific provisions in the Constitution.
Article 75 (3) provides that the Council of Ministers shall be collective responsibility to the Lok
Sabha. The principle of collective responsibility means that the Council of Ministers is as a body
responsible to the Lok Sabha for the general conduct of affairs of the Government. The Council
of Ministers work as a team and all decisions taken by the cabinet are the joint decisions of all its
members. No matter whatever be their personal differences of opinion within the Cabinet, but
once a decision has taken by it, it is the duty of each and every Minister to stand by it and
support it both in the Legislature and outside. Lord Salisbury explained this principle of
collective responsibility thus: “For all that passes in the Cabinet each member of it who does not
resign is absolutely irretrievably responsible, and has no right afterward to say that he agreed in
one sense to a compromise while in another he was persuaded by his colleagues. Thus the only
alternative before a Minister who is not prepared to support and defend the decision of the
Cabinet is to resign. This is a great weapon in the hands of the Prime Minister through which he
maintains unity and discipline in his colleagues (Cabinet). A Minister who does not agree with
Prime Minster or the Cabinet has the only alternative, that is, to resign from the Cabinet.
According to this rule, the Council of Ministers is collectively responsible to the Lok Sabha,
hence as soon as a Ministry looses the confidence of the House or is defeated on any question of

policy, it must resign.
Judiciary – Jurisdiction of Supreme Court and High Courts: Supreme Court—the Guardian of the
Constitution:
The Supreme Court under our Constitution is such arbitration. It is the final interpreter and
guardian of the Constitution. In addition, to the above function of maintaining the supremacy of
the Constitution, the Supreme Court is also the guardian of the Fundamental rights of the people.
Jurisdiction of the Supreme Court: A Court of Record: Article 129 makes the Supreme Court a
‘Court of Record’ and confers all the powers of such a court including the power to punish for its
contempt. A Court of Record is a court whose records are admitted to be of evidentiary value and
they are not to be questioned when they are produced before the court. Once a court is made a
Court of Record, its power to punish for contempt necessarily follows from that position. The
power to punish for contempt of court has been expressly conferred on the Supreme Court by our
Constitution. This extraordinary power must be sparingly exercised only where the public
interest demands. Original Jurisdiction—Article 131: The Supreme Court has original
jurisdiction in any dispute:- (a) Between the Government of India and one or more States; (b)
Between the Government of India and any State or States on one side one or more other States
on the other; (c) Between two or more States. The Supreme Court in its original jurisdiction
cannot entertain any suits brought by private individuals against the Government of India. The
dispute relating to the original jurisdiction of the Court must involve a question of law or fact on
which the existence of legal right depends. This means that the Court has no jurisdiction in
matters of political nature. The term ‘legal right’ means a right recognized by law and capable of
being enforced by the power of a State but not necessarily in a court of law. The original
jurisdiction of the Supreme Court, however, does not extend to the following matters: (1) Article
131 of the Constitution says, that, the jurisdiction of the Supreme Court shall not extend to a
dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar
instrument which was executed before the commencement of the Constitution and continues to
be in operation or which provides that the jurisdiction of the Supreme Court shall not extend to
such a dispute. (2) Under Article 264 Parliament may by law exclude the jurisdiction of the
Supreme Court in disputes with respect to the use, distribution or control of the water of any
inter-State river or river-valley. (3) Matters referred to the Finance Commission (Article 280 (4)
The adjustment of certain expenses between the Union and the State (Article 290). Appellate
Jurisdiction—Article 132: The Supreme Court is the highest Court of Appeal in the country. The
writ and decrees of the Court run throughout the country. It can be truly said that the jurisdiction
and powers of the Supreme Court in their nature and extent are wider than those exercised by the
High Courts of any country in the Commonwealth or by the Supreme Court of the U.S.A.
The Appellate Jurisdiction of the Supreme Court can be divided into four main categories:- (a)
Constitutional matters, (b) Civil matters, (c) Criminal matters, (d) Special leave to appeal. Power
of the Supreme Court to withdraw and transfer cases –article 139-A: Article 139-A (1) provides
that if on an application made by the Attorney-General of India or by a party or on its own
motion the Supreme Court is satisfied that cases involving the same or substantially the same
question of law are pending before the supreme Court and one or more High Courts or before
two or more High Courts and that such questions are substantially question of general
importance, it may withdraw them and dispose them itself. It may after disposing of the said
question of law return any case to the High Court with a copy of its judgment and then the High
Court will dispose of the case in accordance with such judgment. Clause (2) of Article 139-A
empowers the Supreme Court to transfer cases, appeals or other proceedings from any High

Court to another High Court it thinks it expedient to do so for the end of justice. Advisory
Jurisdiction of the Supreme Court—Article 143: Article 143 provides that if at any time it
appears to the President that—(a) a question of law or fact has arisen or is likely to arise, and (b)
the question is of such a nature and of such public importance that it is expedient to obtain the
opinion of the Supreme Court upon it, he may refer the question for the Advisory opinion of the
Court and the Court may after such hearing as it thinks fit, report to the President its opinion
thereon. Under clause (2), if the President refers to the Supreme Court matters which are
excluded from its jurisdiction under the provision to Article 131, the Court shall be bound to give
its opinion there on. Law declared by the Supreme Court to be binding on all courts—Article
141: The judgment of the Supreme Court will be binding on all courts in India. The expression
“all courts, within the territory of India” clearly means courts other than the Supreme Court.
Thus the Supreme Court is not bound by its own decisions and may in proper case reverse its
previous decisions. Jurisdiction of the High Courts: A Court of Record:- Article 215 declares that
every High Court shall be a Court of Record and shall have all powers of such a court including
the power to punish to punish for its contempt. The scope and nature of the power of High Court
under this Article is similar to the powers of the Supreme Court under Article 129.
General Jurisdiction: Article 225 says that subject to the provisions of the Constitution and to the
provision of any law of the appropriate Legislature (a) the jurisdiction of the High Court, (b) the
law administered in the existing High Court, (c) the powers of the judges in relation to the
administration of justice in the courts, (d) the power to make rule of the High Court shall be the
same as immediately before the commencement of this Constitution. Thus the pre-Constitutional
jurisdiction of the High Court is preserved by the Constitution. Article 225 thus gives jurisdiction
over revenue matters. In pre-Constitution period the decisions of the Privy Council were binding
on all the High Courts under Section 212 of the Government of India Act. The effect of the
present Article is the same and they are still binding on the High Courts unless it is reversed by
the Supreme Court or by a law of the appropriate legislature. This means that the jurisdiction and
powers of the High Courts can be changed both by the Union Parliament and the State
Legislatures. Power of superintendence over all courts by the High Courts: Under Article 227
every High Court has the power of the superintendence over all courts and tribunals throughout
the territory in relation to which it exercises jurisdiction. For this purpose, the High Court may
call returns from them, make and issue general rules and prescribe forms for regulating the
practice and proceedings of such courts and prescribe forms in which books, entries and accounts
are to be kept by the officers of such courts, and settle table of fees to be given to the sheriff,
clerks, attorneys, advocates and pleaders. However this power has given for superintendence of
High Court does not extend over any Court or Tribunal constituted by law relating to the Armed
Forces. Transfer of certain cases to High Courts: Under 228 the High Court has power to
withdraw a case from a subordinate Court, if it satisfied that a case pending in a subordinate
Court involves a substantial question of law as to the interpretation of the Constitution. It may
then either dispose of the case itself or may determine the said question of law and return the
case to the subordinate Court with a copy of its judgment. The subordinate Court will then
decide the case in conformity with the High Court’s judgment. Writ Jurisdiction of the High
Court (Article 226): Article 226 provides that not withstanding anything in Article 32 every High
Court shall have power, throughout the territorial limits in relation to which it exercises
jurisdiction to issue to any person or authority including the appropriate cases, any government,
within those territories, directions, orders of writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari or any of them –(a) for the enforcement of

fundamental rights conferred by Part III, and (b) for ‘any other purpose’. Thus the jurisdiction of
a High Court is not limited to the protection of the fundamental rights but also other legal rights
as is clear from the words “any other purpose”. Those words make the jurisdiction of the High
Court more extensive than that of the Supreme Court which is confined to only for the
enforcement of fundamental rights. The words “for any other purpose”, refer to enforcement of a
legal right or legal duty. They do not mean that a High Court can issue writs for any purpose it
pleases. Extension of jurisdiction of High Court: Under article 230, Parliament can by law extend
or exclude jurisdiction of a high Court over any Union Territory. The Legislature of a State
cannot increase, restrict or abolish the jurisdiction.
Independence of Judiciary: Independence of judiciary—Under the Constitution:

Only an impartial and independent judiciary can protect the rights of the individual and provide
equal justice without fear or favor. It is, therefore, very necessary that the Supreme Court should
be allowed to perform its functions in an atmosphere of independence and be free from all kinds
of political pressures. The Constitution has made several provisions to ensure independence of
Judiciary. Security of tenure: The Judges of the Supreme Court have security of tenure. They
cannot be removed from office except by an order of the President and that also only on the
ground of proved misbehavior or incapacity, supported by a resolution adopted by a majority of
total membership of each House and also by a majority of not less than 2/3 of the members of the
House present and voting. Parliament may, however, regulate the procedure for presentation of
the address and for investigation and proof of the misbehavior or incapacity of a Judge. But
Parliament cannot misuse this power, because the special procedure for their removal must be
followed. The following are some of other important grounds explaining independence of
Judiciary:- 1. Salary of Judges fixed, not subject to vote of Legislature, 2. Parliament can extend,
but cannot curtail the jurisdiction and power of the Supreme Court, 3. No discussion in
Legislature on the conduct of the Judges, 4. Power to punish for its contempt, 5. Separation of
Judiciary from executive, 6. Judges of the Supreme Court are appointed by the Executive with
the consultation of Legal Experts, 7. Prohibition on Practice after Retirement. Thus the position
of the Supreme Court is very strong and its independence is adequately guaranteed. However,
there are certain disturbing trends which are likely to threaten the independence of judiciary at
present. (1) Although Article 124 vests the legal power of appointment in the executive but the
executive is required to ‘consult’ legal experts i.e., judges of the Supreme Court and High Courts
in appointing judges of the higher courts. But unfortunately, the Supreme Court interpreted the
word ‘consultation’ in such a literal manner that it gave virtually discretion in the matter. In
judges transfer case I (S.P.Gupta Vs Union of India) the Supreme Court held that the word
“consultation”, did not mean concurrence and the Executive was not bound by the advice given
by the judges. The Government may completely ignore the advice of legal experts. Thus the
power of appointment of the Judges of the Supreme Court and the transfer of the High court
Judges was solely vested in the Executive from whose dominance the Judiciary was expected to
be free. By conceding the power of appointment exclusively to the Executive, it is submitted, the
court had itself put the independence of the judiciary into danger. Mr. Justice Bhagwati of the
Supreme Court in the S.P.Gupta’s case had suggested for establishment of a judicial commission
for recommending the names of persons for the appointment of the Judges of the Supreme Court
and High Courts. (2) The power of the President under article222 to transfer a judge from one
High Court to another may also be used to undermine the independence of the judiciary.

UNIT 3
Generally, three models are followed in the matter of division of powers in a federation. In the
first model, the powers of the Centre are defined and the residuary powers are left to the States.
This model is found in America. In the second module, the powers of the federating units or
States are defined and the residuary powers are given to the centre. Canada follows this model.
And in the third model, the powers of both the governments are clearly laid down. Australia has
this model of federation. In India, we follow the combination of both the Canadian and the
Australian models. The Constitution of India divides powers between the Union and the State
governments. The Seventh Schedule of the Constitution includes three lists of subjects - the
Union List, the State List and the Concurrent List. The Central or Union Government has
exclusive power to make laws on the subjects which are mentioned in the Union List. The States
have the power to make law on the subjects which are included in the Concurrent List. With
regard to the Concurrent List, both the Central and State governments can make laws on the
subjects mentioned in the Concurrent List. Finally, the subjects which are not mentioned in the
above three lists are called residuary powers and the Union government can make laws on them.
It may be noted here that in making laws on the subjects of the Concurrent list, the Central
government has more authority than the State governments. And on the subjects of the State List
also the Central government has indirect control. All this shows that though the Indian
Constitution has clearly divided powers between the two governments, yet the Central
government has been made stronger than the State governments. We can discuss the division of
powers between the two governments in India under three headings, such as, legislative relations,
administrative relations and financial relations with reference to the three lists.
a. Legislative powers
The President of India is a component part of the Union Parliament. In theory he possesses
extensive legislative powers. He has power to summon and prorogue the Parliament and he can
dissolve the Lok Shaba. Article 85 (1), however, imposes a restriction on his power. The
President is bound to summon Parliament within six months from the last sitting of the former
session. If there is a conflict between the two houses of Parliament over an ordinary Bill he can
call a joint sitting of both Houses, to resolve the deadlock (Article 108). At the commencement
of each session the President addresses either House of Parliament of a joint session of a
Parliament. In his address to joint session of Parliament he outlines the general policy and
programme of the Government. His speech is like that of the King in England and is prepared by
the Prime Minister. He may send message to either Houses of Parliament (Art. 86). Every Bill
passed by both Houses of Parliament is to be sent to the President for his assent (Article 111). He
may give his assent to the Bill, or withhold his assent or in the case of a bill other than a money-
bill, may return it to the House for reconsideration on the line suggested by him. If the bill is
again passed by both the houses of the Parliament with or without amendment, he must give his
assent to it when it is sent to him for the second time. A bill for the recognition of a new State or
alteration of State boundaries can only be introduced in either House of the Parliament after his
recommendation (Article3). The State Bills for imposing restrictions on freedom of trade and
commerce require his recommendation (Article 304). He nominates 12 members of the Rajya
Sabha from among persons having special knowledge or practical experience of Literature,
Science, Art and Social Services [Article 80(3)]. He is authorized by the Constitution to
nominate two anglo-Indians to the Lok Sabha, if he is of opinion that the anglo-Indians
community is not adequately represented in that House (Article 331). The President has to lay

before the Parliament the Annual Finance Budget, the report of Auditor-General, the
recommendations of the Finance Commission, Report of the Union Public Service Commission,
and report of the Special Commission for Scheduled Castes and Scheduled Tribes, the report of
the Commission of the Backward Classes and the report of the Special Officer for linguistic
minorities
b. Administrative powers
As in legislative maters, in administrative matters also, the Central government has been made
more powerful than the States. The Constitution has made it clear that the State governments
cannot go against the Central government in administrative matters. The State governments have
to work under the supervision and control of the Central government. The States should exercise
its executive powers in accordance with the laws made by the Parliament. The Central
government can make laws for maintaining good relations between the Centre and the States. It
can control the State governments by directing them to take necessary steps for proper running of
administration. If the State fails to work properly or according to the Constitution, it can impose
President’s rule there under Article 356 and take over its (the State’s) administration. Again,
there are some officials of the Central government, working in the States, through which it can
have control over the State govern 1. Article 257 of the Constitution lays down that the executive
authority of every State shall be exercised in such a way that it does not impede or prejudice the
exercise of the executive power of the Union. 2. There are some functionaries of the Union
government who serve the State governments. The Governor of a State is appointed by the
President who acts as a central agent in the State. The Chief Justice and the Judges of a High
Court are appointed by the President and he can also remove them if a resolution is passed by the
Parliament in this regard. The offices of the All India Services are appointed by the Central
government but they serve in different States.
c. Financial powers
Article 280 provides for the establishment of a Finance Commission. The President shall within
two years from the commencement of the constitution and thereafter at the expiration of every
fifth year or at such earlier time as he considers necessary constitute a Finance Commission. The
Finance Commission shall consist of a Chairman and four other members appointed by the
President. Parliament may by law prescribe qualifications which shall be requisite for
appointment as members of the Commission and the manner in which they shall be selected. In
exercise of the power under Article 80 (1), Parliament has passed the Finance (Miscellaneous
Provision) Act, 1951. It provides that the Chairman of the Commission shall be selected from
among persons who have had experience in public affairs. The other four members shall be
selected from among persons who (1) are, or have been, or are qualified to be appointed as
judges of a High Court; or (2) have special knowledge of the Finance and accounts of
Government, or (3) have had wide experience in financial matters and in administration, or (4)
have special knowledge of economics. The members of the Commission shall hold office for
such period as may be specified in the Presidential order and shall be eligible for appointment.
The Commission is empowered to determine its procedure and shall have all the powers of a
civil court in respect of summoning and enforcing the attendance of witnesses, production of any
document and requisitioning any public record from any court or office.
Relevant Doctrines:

(a) Territorial Nexus:
Article 245(1) of the Constitution says that subject to the provisions of this Constitution,
Parliament may make laws for the whole or any part of the territory of India, and the
Legislature of a State may make laws for the whole or any part of the State, according to
Article 245(2) no law made by Parliament shall be deemed to be invalid on the ground
that it would have extra-territorial operation. Thus, the Constitution confers the power to
enact laws having extra-territorial operation only to the Union Parliament and not to the
State legislature, and consequently and extra-territorial law enacted by any State is
changeable unless the same is protected on the ground of territorial nexus. If a State law
has sufficient nexus or connection with the Subject-matter of that law, the state law is
valid even when it has extra-territorial operation. It could, therefore, be said that a State
Legislature is also empowered to enact a law having extra-territorial operation subject to
the condition that even though the subjectmatter of that law is not located within the
territorial limits of the State, there exists as sufficient nexus of connection between the
two. The area in which the principle of territorial nexus has been applied most in India is
taxation. In State of Bombay Vs R.M.D. Chamarbangwala, a newspaper printed and
published at Bangalore had wide circulation in the State of Bombay. Through this news
paper the respondent conducted and ran prize competitions for which the entries were
received from the State of Bombay through agents and depots established in the State to
collect entry forms and fees for being forwarded to the head office at Bangalore. The
Bombay Legislature imposed a tax on the business of prize competitions in the state by
enacting the Act of 1952 and amending the Bombay Lotteries and prize Competitions and
Tax Act, 1948. The respondent contended that he was not bound to pay the said tax on
the ground of extraterritoriality. The Supreme Court ruled that when the validity of an act
is called in question the first thing for the court to do is to examine as to whether the Act
is called in question the first thing for the court to do is to examine as to whether the Act
is a law with respect to a topic assigned to the particular legislature which enacted it
because under the provisions conferring legislative powers on it such legislature can only
make a law for its territory or any part thereof and its laws cannot, in the absence of a
territorial nexus, have any extra-territorial operation. For sufficiency of territorial
connection, two elements were considered by the court, namely, (1) the connection must
be real and not illusory, and (2) the liability sought to be imposed must be pertinent to
that connection. It was held that all the activities which the competitor was ordinarily
expected to undertake took place in the State of Bombay and there existed a sufficient
territorial nexus to enable the Bombay Legislature to tax the respondent who was residing
outside the state. Some other example of cases:- 1. Tata Iron and Steel Company Vs.
State of Bihar, AIR 1958 SC 452 2. State of Bihar vs. Charusila Das, AIR1959 SC 1002.
(b) Harmonious Construction
When two or more provisions of the same statute are repugnant, the court will try to
construe the provisions in such a manner, if possible, as to give effect to both by
harmonizing them with each other. The court may do so by regarding two or more
apparently conflicting provisions as dealing with separate situations or by holding that
one provision merely provides for an exception of the general rule contained in the other.
The question as to whether separate provisions of the same statute are overlapping or are
mutually exclusive may, however, be very difficult to determine. The basis of the
principle of harmonious construction probably is that the legislature must not have

intended to contradict itself. This principle has been applied in a very large number of
cases dealing with interpretation of the Constitution. It can be assumed that when the
legislature gives something by one hand it does not take away the same by the other. One
provision of an Act does not make another provision of the same Act useless. The
legislature cannot be presumed to contradict itself by enacting apparently two conflicting
provisions in the same Act. In State of Bombay v. F.N. Balasara, while deciding upon the
constitutionality of the Bombay Prohibition Act, 1949, enacted by the Bombay
Legislature, whereby restrictions on production and sale of liquor were put, the Supreme
Court observed that the expression possession and sale occurring in entry 31 of List II are
to be read without any qualification. Under that entry the State Legislature has the power
to prohibit possession, use and sale of intoxicating liquor absolutely. The word import in
Entry 19 of List I standing by itself does not include with sale or possession of the article
imported into country by a person residing in the territory into which it is imported. There
is, therefore, no real conflict between entry 31 of List II and Entry 19 of List I.
Consequently, the Act of 1949, in so far as it purports to restrict possession, used and sale
of foreign liquor, is not an encroachment on the field assigned to the Federal Legislature.
Some other cases: 1. Raj Krishna Vs Binod, AIR 1954 SC 202 2. Bengal Immunity
Company Vs State of Bihar, AIR 1955 SC 661.
(c) Pith and Substance :
The Doctrine “Pith and Substance” means, that if an enactment substantially falls within
the powers conferred by the Constitution upon the legislature by which it was enacted, it
does not become invalid merely because it incidentally touches upon subjects within the
domain of another legislature as designated by the Constitution. Within their respective
spheres, the Union and the State Legislatures are made supreme and they should not
encroach into the sphere reserved to the other. If a law passed by one encroaches upon
the field assigned to the other the Court will apply the doctrine of ’pith and substance’ to
determine whether the Legislature concerned was competent to make it. If the ‘pith and
substance’ of law, i.e., the true object of the legislation or a statute, relates to a matter
with the competence of Legislature which enacted it, it should be held to be intra virus
even though it might incidentally trench on matters not within the competence of
Legislature. In order to ascertain the true character of the legislation one must have
regard to the enactment as a whole, to its object and to the scope and effect of its
provisions. The Privy Council applied this doctrine in Profulla Kumar Mukerjee Vs Bank
of Khulna, AIR 1947. In this case the validity of the Bengal Money Lenders’ Act, 1946,
which limited the amount and the rate of interest recoverable by a money-lender on any
loan was challenged on the ground that it was Ultra virus of the Bengal Legislature in so
far as it related to ‘Promissory Notes’, a Central subject. The Privy Council held that the
Bengal Money-lenders’ Act was in pith and substance a law in respect of moneylending
and money-lenders-a State subject, and was valid even though it trenched incidentally on
“Promissory note”—a Central subject. In 1980 in the case of Ishwari Khetal Sugar Mills
Vs State of U.P., the validity of the U.P. Sugar Undertakings (Acquisition) Act,1971, was
challenged on the ground that the State Legislature had no competence to enact the
impugned law on the ground that it fell under Parliament’s legislative power under Entry
52 of List I. It was contended that in view of the declaration the Parliament had made
under Entry 52 List I to take the Sugar Industry under its control, that industry went out
of Entry 24 of List II and hence the State Legislature was divested of all legislative power

to legislate in respect of Sugar Industry and as the impugned legislation was in respect of
industrial undertaking in Sugar (Entry 52 of List I) a central subject the impugned
legislation was void. The Court, however, rejected these contentions and held that there
was no conflict between that State Act and the Central Act under Industries Act, 1951.
The power of acquisition or requisition of property in Entry 42, List III is an independent
power and the impugned Act being in pith and substance, an Act to acquire scheduled
undertakings the power of the State Legislature to legislate is referable to entry 42 and its
control was taken over by the Central Government.
(d) Repugnancy:
Article 254 (1) says that if any provision of law made by the Legislature of the State is
repugnant to any provision of a law made by Parliament which is competent to enact or to
any provision of the existing law with respect to one of the matters enumerated in the
Concurrent List, then the law made by Parliament, whether passed before or after the law
made by the Legislature of such stage or, as the case may be, the existing law shall
prevail and the law made by the Legislature of the State shall, to the extent of the
repugnancy be void. Article 254 (1) only applies where there is inconsistency between a
Central Law and a State Law relating to a subject mentioned in the Concurrent List. But
the question is how the repugnancy is to be determined? In M.Karunanidhi vs Union of
India, in 1979, Fazal Ali, J., reviewed all its earlier decisions and summarized the test of
repugnancy. According to him a repugnancy would arise between the two statutes in the
following situations: 1. It must be shown that there is clear and direct inconsistency
between the two enactments [Central Act and State Act] which is irreconcilable, so that
they cannot stand together or operate in the same field. 2. There can be no repeal by
implication unless the inconsistency appears on the face of the two statutes. 3. Where the
two statutes occupy a particular field, but there is room or possibility of both the statutes
operating in the same field without coming into collusion with each other, no repugnancy
results. 4. Where there is no inconsistency but a statute occupying the same field seeks to
create distinct and separate offences, no question of repugnancy arises and both the
statutes continue to operate in the same field. The above rule of repugnancy is, however,
subject to the exception provided in clause (2) of this Article. According to clause (2) if a
State law with respect to any of the matters enumerated in the Concurrent List contains
any provision repugnant to the provisions of an earlier law made by Parliament, or an
existing law with respect of that matter, then the state law if it is has been reserved for the
assent of the President and has received his assent, shall prevail not withstanding such
repugnancy. But it would still be possible for the parliament under the provision to clause
(2) to override such a law by subsequently making a law on the same matter. If it makes
such a law the State Law would be void to the extent of repugnancy with the Union Law.
UNIT 4
Amendment of Constitution:
Provision for amendment of the Constitution is made with a view to overcome the
difficulties which may encounter in future in the working of the Constitution. “It has been
the nature of the amending process itself in federation which has led political scientist to
classify federal Constitution as rigid. A federal Constitution is generally rigid in character
as the procedure of amendment is unduly complicated. The procedure of amendment in
American Constitution is very difficult. So is the case with Australia, Canada and

Switzerland. It is a common critism of federal Constitution that is too conservative, too
difficult to alter and that it is consequently behind the times.” The framers of the Indian
Constitution were keen to avoid excessive rigidity. They were anxious to have a
document which could grow with a growing nation, adapt itself to the changing need and
circumstances of a growing people. The nature of the ‘amending process’ envisaged by
the framers of our Constitution can best be understood by referring the following
observation of the late Prime Minister Pt.Nehru, “While we want this Constitution be as
solid and permanent as we can make it, there is no permanence in the Constitution. There
should be certain flexibility. If you make anything rigid and permanent you stop the
nation’s growth, of a living, vital, organic people……In any event, we could not make
this Constitution so ‘rigid’ that it cannot be adopted to changing conditions. But the
framers of Indian Constitution were also aware of the fact that if the Constitution was so
flexible it would be a playing of the whims and caprices of the ruling party. They were,
therefore, anxious to avoid flexibility of the extreme type. Hence, they adopted a middle
course. It is neither too rigid to admit necessary amendments, nor flexible for undesirable
changes. The machinery of amendment should be like a safety valve, so devised as
neither to operate the machine with too great facility nor to require, in order setting in
motion, an accumulation of force sufficient to explode it. The Constitution-makers have,
therefore, kept the balance between the danger of having non-amendable Constitution and
a Constitution which is too easily amendable.
For the purpose of amendment the various Articles of the Constitution are divided into
three categories: (1) Amendment by Simple Majority, (2) Amendment by Special
Majority and (3) By Special Majority and Ratification by States. Procedure for
Amendment: A Bill to amend the Constitution may be introduced in either House of
Parliament. It must be passed by each House by a majority of the total membership to
that House and by a majority of not less than 2/3 of the members of that House present
and voting. When a Bill is passed by both Houses it shall be presented to the president for
his assent who shall give his assent to Bill and thereupon the Constitution shall stand
amended. But a Bill which seeks to amend the provisions mentioned in Article 368
requires in addition to the special majority mentioned above the ratification by the ½ of
the States.
Doctrine of Basic Structure:
Theory of Basic Structure of the Constitution – A limitation on amending power: The
Judges have enumerated certain essentials of the basic structure of the Constitution, but
they have also made it clear that they were only illustrative and not exhaustive. They will
be determined on the basis of the facts in each case. The validity of the Constitution (24th
Amendment) Act, 1971, was challenged in Keshvananda Bharati Vs State of Kerala,
popularly known as the Fundamental Right’s case the petitioners had challenged the
validity of the Kerala Land Reforms Act 1963. But during the pendency of the petition
the Kerala Act was amended in 1971 and was placed in the Ninth Scheduled by the 29th
Amendment Act. The petitioners were permitted to challenge the validity of Twenty
Fourth, Twenty Fifth and Twenty Ninth Amendment to the Constitution also. The
question involved was as to what was the extent of the amending power conferred by
Article 368 of the Constitution? On behalf of the Union of India it was claimed that
amending power was unlimited and short of repeal of the Constitution any change could
be effected. On the other hand, the petitioner contended that the amending power was

wide but not unlimited. Under Article 368 Parliament cannot destroy the “basic feature”
of the Constitution. A Special Bench of 13 Judges was constituted to hear the case. The
Court by majority overruled the Golak Nath’s case which denied Parliament the power to
amend fundamental rights of citizens. The majority held that Article 368 even before the
24th Amendment contained the power as well as the procedure of amendment. The Court
held that underArt.368 Parliament is not empowered to amend the basic structure or
framework of the Constitution.

LAW OF CRIMES-I (205)
UNIT ONE
Introduction to Substantive Criminal Law a. Extent and operation of the Indian Penal
Code b. Definition of Crime c. Constituents Elements of Crime: Actus Reus and Mens rea
History of the Indian Penal Code:

During the British Period the Governor General Appointed the “Indian Law Commissioners” in
order to judge the condition of the penal laws prevalent in India and suggest a comprehensive
Penal Code. In the year 1834 the First Law Commission was constituted headed by Lord
Macauley for drafting the Indian Penal Code. The Draft underwent various levels of scrutiny and
was finally passed and received the Governor General’s assent on 6 th October 1860 and came to
force on 1st January 1862.
The IPC is a comprehensive piece of legislation, which initially consisted of 23 Chapters and 511
Sections and as a result of various amendments that it has gone through there are finally 538
sections.
Extent and Operation of the Indian Penal Code:
The Chapter 1(Sections 1-5) of the Indian Penal Code deals with the extent and operation.
According to Section 1 of the Code the Name of the Code shall be Indian Penal Code and the
same shall be applicable to whole of India except Jammu and Kashmir vide Article 370 of the
Constitution of India. Every person shall be liable to punishment under this code for every act
or omission contrary to the Act and not otherwise.
Section 2 of the Act deals with the Intra Territorial Jurisdiction, i.e. offence committed in India
and punished under the Code. This section asserts liability on the basis of locality and place of
commission of offence. In order to invoke the code it must be proven that the offence was
committed within the Indian Territory. The term “Indian Territory” has been defined to include
land, water (inland water including the river, canals etc.) and the portions of sea. “Every Person”
includes Citizen, non citizen and even Foreigners visiting India. Although the same excludes
judicial person (companies etc.), though the same shall be liable for the actions of their directors
because of the principle of Vicarious Liability.
Cases:

In the case of State of Maharashtra vs. M.H. George (AIR 1965 SC 722), it was held that the
foreigner who enters India by accepting the allegiance of Indian laws is also liable for
punishment in case an offence is committed under the code and that he cannot take a plea of
“ignorance of law”.
In the case of R vs. Esop [(1836) 7 ER 203], it was held that no person can take the plea of not
being aware of the criminality of the act in the country. In this case the person had contended
that unnatural offence was not a criminal act in his land of origin Baghdad and that he was not
aware of the fact that the same was a criminal act. Such an argument was negated and the person
was convicted.
In the case of Mobark Ali vs. State of Bombay (AIR 1957 SC 857), Pakistani citizen made a
false representation while in Karachi o the complainant in Bombay through letters, phone calls
and telegrams which induced the complainant to part with an amount of around Rs. 5 lacs to the
agent of the accused in Bombay so that rice could be shipped from Karachi to Bombay. NO rice
was supplied. The accused was caught in England and brought to Bombay where he was
prosecuted and convicted under Section 420 for cheating. The Supreme Court upheld the
conviction even though the person was physically present in Bombay.
The application of the Act depends upon the place where the offence is committed and not on the
nationality or place of residence of the offender. So, a person physically present outside India
can commit an offence within India and shall be Punishable under the code. Thus, the code shall
be Extra Territorially applicable in the following cases:
1. any citizen of India in any place without or beyond India;
2. any person on a ship or aircraft registered in India;
3. any person in any place beyond India wherein the target of the offence being a computer
resource located in India.
Section 4 of the IPC extends the application of the code to an offence committed outside India by
an Indian citizen and offence committed on a ship or aircraft registered in India. The rationale
behind this extension of criminal jurisdiction o the courts is based on the contention that every
sovereign state can regulate the conduct of its citizen, where they might be for the time being.
Clause 2 of section 4 gives Admiralty jurisdiction to the Indian Courts and the power to try
offences committed on any ship or aircraft registered in India. A ship is considered to be a

floating island belonging to the country whose flag it is bearing. Thus all the vessels are
considered as the part of the territory of the country whose flag they fly.
Exception to applicability of the Act:
The Act is not applicable to soldiers, sailors or airmen ‘in the service of the Government of
India’ because there are different laws for punishing such personnel.
B. Definition of Crime
Many jurists have defined crime in their own ways some of which are as under:
 Blackstone defined crime as an act committed or omitted in violation of a public law either
forbidding or commanding it.
 Stephen observed a crime is a violation of a right considered in reference to the evil
tendency of such violation as regards the community at large
 .Oxford Dictionary defines crime as an act punishable by law as forbidden by statute or
injurious to the public welfare.
Fundamental Elements Of Crime: There are four elements which go to constitute a crime,
these are:-
1. Human being
2. Mens rea or guilty intention
3. Actus reus or illegal act or omission
4. Injury to another human being
Human Being- The first element requires that the wrongful act must be committed by a human
being. In ancient times, when criminal law was largely dominated by the idea of retribution,
punishments were inflicted on animals also for the injury caused by them, for example, a pig was
burnt in Paris for having devoured a child, a horse was killed for having kicked a man. But now,
if an animal causes an injury we hold not the animal liable but its owner liable for such injury.
So the first element of crime is a human being who- must be under the legal obligation to act in a
particular manner and should be a fit subject for awarding appropriate punishment.

Section 11 of the Indian Penal Code provides that word ‘person’ includes a company or
association or body of persons whether incorporated or not. The word ‘person’ includes artificial
or juridical persons.
Mens Rea- The second important essential element of a crime is mens rea or evil intent or guilty
mind. There can be no crime of any nature without mens rea or an evil mind. Every crime
requires a mental element and that is considered as the fundamental principle of criminal
liability. The basic requirement of the principle mens rea is that the accused must have been
aware of those elements in his act which make the crime with which he is charged.
There is a well known maxim in this regard, i.e. “actus non facit reum nisi mens sit rea” which
means that, the guilty intention and guilty act together constitute a crime. It comes from the
maxim that no person can be punished in a proceeding of criminal nature unless it can be showed
that he had a guilty mind.
Actus Reus [Guilty Act Or Omission] - The third essential element of a crime is actus reus. In
other words, some overt act or illegal omission must take place in pursuance of the guilty
intention. Actus reus is the manifestation of mens rea in the external world. Prof. Kenny was the
first writer to use the term ‘actus reus’. He has defined the term thus- “such result of human
conduct as the law seeks to prevent”.
Injury- The fourth requirement of a crime is injury to another person or to the society at large.
The injury should be illegally caused to any person in body, mind, reputation or property as
according to Section 44 of IPC, 1860 the injury denotes any harm whatever illegally caused to
any person in body, mind, reputation or property.
Stages Of A Crime
If a person commits a crime voluntarily or after preparation the doing of it involves four different
stages. In every crime, there is first intention to commit it, secondly, preparation to commit it,
thirdly, attempt to commit it and fourthly the accomplishment. The stages can be explained as
under-

1. Intention- Intention is the first stage in the commission of an offence and known as mental
stage. Intention is the direction of conduct towards the object chosen upon considering the
motives which suggest the choice. But the law does not take notice of an intention, mere
intention to commit an offence not followed by any act, cannot constitute an offence. The
obvious reason for not prosecuting the accused at this stage is that it is very difficult for the
prosecution to prove the guilty mind of a person.
2. Preparation- Preparation is the second stage in the commission of a crime. It means to arrange
the necessary measures for the commission of the intended criminal act. Intention alone or the
intention followed by a preparation is not enough to constitute the crime. Preparation has not
been made punishable because in most of the cases the prosecution has failed to prove that the
preparations in the question were made for the commission of the particular crime.
If A purchases a pistol and keeps the same in his pocket duly loaded in order to kill his bitter
enemy B, but does nothing more. A has not committed any offence as still he is at the stage of
preparation and it will be impossible for the prosecution to prove that A was carrying the loaded
pistol only for the purpose of killing B.
Preparation When Punishable- Generally, preparation to commit any offence is not punishable
but in some exceptional cases preparation is punishable, following are some examples of such
exceptional circumstances-
 Preparation to wage war against the Government - Section 122, IPC 1860;
Preparation to commit depredation on territories of a power at peace with Government of India-
Section 126, IPC 1860;
 Preparation to commit dacoity- Section 399, IPC 1860;
 Preparation for counterfeiting of coins or Government stamps- Sections 233-235, S. 255 and
S. 257;
 Possessing counterfeit coins, false weight or measurement and forged documents. Mere
possession of these is a crime and no possessor can plead that he is still at the stage of

preparation- Sections 242, 243, 259, 266 and 474.
4. Attempt- Attempt is the direct movement towards the commission of a crime after the
preparation is made. According to English law, a person may be guilty of an attempt to commit
an offence if he does an act which is more than merely preparatory to the commission of the
offence; and a person will be guilty of attempting to commit an offence even though the facts are
such that the commission of the offence is impossible. There are three essentials of an attempt:-
· Guilty intention to commit an offence;
· Some act done towards the commission of the offence;
· The act must fall short of the completed offence.
Attempt Under The Indian Penal Code, 1860- The Indian Penal Code has dealt with attempt in
the following four different ways-
· Completed offences and attempts have been dealt with in the same section and same
punishment is prescribed for both. Such provisions are contained in Sections 121, 124, 124-A,
125, 130, 131, 152, 153-A, 161, 162, 163, 165, 196, 198, 200, 213, 240, 241, 251, 385, 387, 389,
391, 394, 395, 397, 459 and 460.
Secondly, attempts to commit offences and commission of specific offences have been dealt with
separately and separate punishments have been provided for attempt to commit such offences
from those of the offences committed. Examples are- murder is punished under section 302 and
attempt to murder to murder under section 307; culpable homicide is punished under section 304
and attempt to commit culpable homicide under section 308; Robbery is punished under section
392 and attempt to commit robbery under section 393.
· Thirdly, attempt to commit suicide is punished under section 309;
· Fourthly, all other cases [where no specific provisions regarding attempt are made] are covered

under section 511 which provides that the accused shall be punished with one-half of the longest
term of imprisonment provided for the offence or with prescribed fine or with both.
4. Accomplishment Or Completion- The last stage in the commission of an offence is its

accomplishment or completion. If the accused succeeds in his attempt to commit the crime, he
will be guilty of the complete offence and if his attempt is unsuccessful he will be guilty of an
attempt only. For example, A fires at B with the intention to kill him, if B dies, A will be guilty
for committing the offence of murder and if B is only injured, it will be a case of attempt to
murder.
UNIT TWO
General Exceptions (Sections 76-106) (Lectures-12) a. Definitions b. Mistake c. Judicial and
Executive acts d. Accident e. Necessity f. Infancy g. Insanity h. Intoxication i. Consent j.
Good Faith k. Private Defense against Body and Property
The Criminal law covers various punishments which vary from case to case. But it is not always
necessary that a person gets punished for a crime which he/she had committed. The Indian Penal
Code (IPC), 1860 recognizes defences in Chapter IV under “General Exceptions”. Section 76 to
106 covers these defences which are based on the presumption that a person is not liable for the
crime committed. These defences depend upon the circumstances prevailing at that point of
time, mens rea of person and reasonability of action of that accused.
Every offence is not absolute, they have certain exceptions. When IPC was drafted, it was
assumed that there were no exceptions in criminal cases which were a major loophole. So a
separate Chapter IV was introduced by the makers of the Code applicable to the entire concept.
In short, the object of Chapter IV includes:
Exceptional circumstances in which an individual can escape liability.
Making Code construction simpler by removing the repetition of criminal exceptions.
Burden of Proof
Generally, Prosecution has to prove its case beyond reasonable doubt against the accused.
Before the enforcement of the Indian Evidence Act 1882, the prosecution had to prove that the

case does not fall under any exception, but section 105 of Evidence act shifted the burden on the
claimant.
But in exceptions, as per Section 105 of Evidence Act, a claimant has to prove the existence of
general exception in crimes.
The fabric of Chapter IV
Section 6 of IPC
“Throughout this code, every definition of offence, every penal provision and every illustration
of every such definition or penal provision, shall be understood subject to exceptions contained
in the chapter titled General Exceptions”.
The General Exceptions are divided into 2 categories:
Excusable Acts
Judicially Justifiable Acts
Excusable Acts Justifiable Act
A mistake of Fact under section 76 An act of Judge and Act performed in pursuance of an order under
and 79. Section 77 and 78.
Accident under Section 80. The necessity under 81.
Infancy – Section 82 and 83. Consent under Section 87 – 89 and Section 90 and 92.
Insanity – Section 84. Communication under Section 93.
Intoxication – Section 85 and 86. Duress under Section 94.
Trifles under Section 95.
Private Defence under Section 96 – 106.

Excusable Acts
An Excusable Act is the one in which though the person had caused harm, yet that person should
be excused because he cannot be blamed for the act. For example, if a person of unsound mind
commits a crime, he cannot be held responsible for that because he was not having mens rea.
Same goes for involuntary intoxication, insanity, infancy or honest mistake of fact.
A mistake of Fact under Section 76 and 79
Under Section 76: Act done by a person bound or by mistake of fact believing, himself to be

bound by law in included. Nothing is an offence which is done by a person who is or by reason
of a mistake of fact, not by mistake of law in good faith believes himself, to be, bound by law to
do such act. It is derived from the legal maxim “ignorantia facti doth excusat, ignorantia juris
non excusat”.
Example: If a soldier firing on a mob by the order of his officer in conformity through the
command of the law, then he will not be liable.
Under Section 79: Act done by a person justified or by mistake of fact believing, himself
justified, by law is included. Nothing is an offence which is done by any person who is justified
by law, or who by reason of mistake of fact and not mistake of law in good faith, believes
himself to be justified by law, in doing that particular act
Example: A thought Z to be a murderer and in good faith and justified by law, seizes Z to present
him before authority. A has not committed any offence.
Case law for Section 79
In Kiran Bedi v. Committee of Inquiry, petitioner refused to deposed to the
beginning of the inquiry as she believed that she could depose only at the end of
the inquiry
Accident under Section 80
Includes an Accident committed while doing a lawful act. Nothing is an offence which is done
by accident or misfortune, without any criminal intention or knowledge in the doing of a lawful
act in a lawful manner by lawful means and with proper care and caution.
Example: Suppose M is trying to shoot a bird with a gun but unfortunately the bullet reflected
from the oak tree causing harm to N, then, M will not be liable.
In King Emperor v. Timmappa, a division bench held that shooting with an unlicensed gun does
not debar an accused from claiming defence under Section 81 of IPC. The appeal of acquittal
was dismissed and the order of trial magistrate was upheld. The court was of the opinion that
there is no reason why sentence awarded under Section 19(e) of the Indian Arms Act should be
enhanced. The respondent was liable under the provision but no more. He just borrowed a gun
for few minutes to kill as he thought a wild animal might attack him and his partners. The
application was dismissed regarding enhancement of sentence.
Infancy – Section 82 and 83

Section 82: It includes an act of a child below seven years of age. Nothing is an offence which is
done by a child under seven years of age.
Suppose a child below seven years of age, pressed the trigger of the gun and caused the death of
his father, then, the child will not be liable.
Section 83: It includes an act of a child above seven and below twelve of immature
understanding. Nothing is an offence which is done by a child above seven years of age and
under twelve, who has not yet attained sufficient maturity of understanding to judge the nature
and repercussions of his conduct during that occasion.
Example: Suppose a child of 10 years killed his father with a gun in the shadow of immaturity,
he will not be liable if he has not attained maturity.
In Krishna Bhagwan v. State of Bihar, Patna High Court upheld that if a child who is accused of
an offence during the trial, has attained the age of seven years or at the time of decision the child
has attained the age of seven years can be convicted if he has the understanding an knowledge of
the offence committed by him.
Insanity – Section 84
Act of a person of unsound mind. Nothing is an offence which is done by a person who at that
time of performing it, by reason of unsoundness of mind, is incapable of knowing the nature of
the act, or that he is doing what is either wrong or contrary to law.
Example: A, who is insane or unsound, killed B with a knife, thinking it to be a fun game, will
not be liable for B’s death as he was not aware of the nature of act and law. he was incapable of
thinking judiciously.
In Ashiruddin Ahmed vs. State, the accused Ashiruddin was commanded by someone in paradise
to sacrifice his own son, aged 4 years. Next morning he took his son to a Mosque and killed him
and then went straight to us uncle, but finding a chowkidar, took the uncle nearby a tank and told
him the story.
The Supreme Court opined that the accused can claim the defence as even though he knew the
nature of the act, he did not know what was wrong.
Intoxication – Section 85 and 86
Section 85: Act of a person incapable of judgment by reason of intoxication caused against his

will. Nothing is an offence which is done by a person who at the time of doing it, is, by reason of
intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong,
or contrary to law, provided that the thing which intoxicated him was administered involuntarily
without his will or knowledge.
Example: A drank alcohol given by a friend thinking it to be a cold drink. He became intoxicated
and hit a person on driving his car back home. He will not be liable as alcohol was administered
to him without his will and knowledge.
Section 86: Offence requiring a particular intent or knowledge committed by one who is
intoxicated. This applies to cases where an act done is not an offence unless done with a
particular knowledge or intent, a person who does the act in state of intoxication, shall be liable
to be dealt with as if he had the same knowledge as he would have had if he had not been
intoxicated, unless the thing which intoxicated him was administered to him without his
knowledge or against his will.
Example: A person intoxicated, stabs another person under influence of alcohol which was
administered to him in the party against his knowledge or will, will not be liable. But if that
person had stabbed that person under voluntary intoxication, then he will be liable.
In Babu Sadashiv Jadhav case, the accused was drunk and fought with the wife. He poured
kerosene and set her on fire and started extinguishing the fire. The court held that he intended to
cause bodily injury which was likely to cause death under section 299(20 and sentenced h under
section 304, Part I of code).
Justifiable Acts
A justified act is one which would have been wrongful under normal conditions but the
circumstances under which the act was committed makes it tolerable and acceptable.
Act of Judge and Act performed in pursuance of an order under Section 77 and 78
Section 77: Act of Judge when acting judicially. Nothing is an offence which is done by a judge
when acting judicially in the exercise of any power which is, or which in good faith he believes
to be, given to him by law.
Example: Giving Capital Punishment to Ajmal Kasab was done under the judicial powers of
judges.
Section 78: Act done pursuant to the Judgement or order of the court. Nothing which is done in

pursuance of, or which is warranted by the judgment or order of, a court of justice, if done whilst
such judgment or order remains in force, is an offence, notwithstanding the court may have no
jurisdiction to pass such judgment or order, provided the person doing the act in good faith
believes that the court had such jurisdiction.
Example: A judge passing an order of giving lifetime jail punishment, believing in good faith
that the court has jurisdiction, will not be liable.
Necessity under 81
Act likely to cause harm, but done without criminal intent, and to prevent other harm. Nothing is
an offence merely by reason of its being done with the knowledge that it is likely to cause harm
if it is done without any criminal intention to cause harm, and in good faith for the purpose of
preventing or avoiding other harm to person or property.
Example: A Captain of a ship turned the direction of the ship of 100 people in order to save their
lives, but harming the life of 30 people of a small boat, without any intention or negligence or
fault on his part. He will not be liable because necessity is a condition in which a person causes
small harm to avoid great harm.
In Bishambher v. Roomal, 1950, the complainant Bishambhara had molested a girl Nathia.
Khacheru, Mansukh, and Nathu were accused related to father of the girl. The Chamars were
agitated and determined to punish Bhishambher. Rumal Singh, Fateh Singh, and Balwant Singh
intervened and tried to bring a settlement. They collected a panchayat and the complainant’s
black was blackened and given shoe beating. It was found by the court that accused had
intervened in good faith but the panchayat was having no authority to take such a step.
Consent under Section 87 – 89 and Section 92
Section 87: Act not intended and not known to be likely to cause death or grievous hurt, done by
consent. Nothing which is not intended to cause death, or grievous hurt, and which is not known
by the doer which is likely to cause death or grievous hurt, is an offence by reason of any harm
which it may cause, or to be intended by the doer to cause, to any person, above 18 years of age,
who has given consent, whether express or implied, to suffer that harm; or by reason of any harm
which it may be known by the doer to be likely to cause to any such person who has consented to
that risk of harm.
Example: A and E agreed to fence each other for enjoyment. This agreement implies the consent

of each other to suffer harm which, in the course of such fencing, may be caused without foul
play and if A while playing fairly hurts E, then A, has committed no offence.
In Poonai Fattemah v. Emp, the accused who professed to be a snake charmer, induced the
deceased to believe him that he the power to protect him from any harm caused by the snake
bite. The deceased believed him and got bitten by the snake and died. The defence of consent
was rejected.
Section 88: Act not intended to cause death, done by consent in good faith for person’s benefit.
Nothing, which is not intended to cause death, is an offence by reason of any harm which it may
cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any
person for whose benefit it is done in good faith, and who has given a consent, whether express
or implied to suffer that harm, or to take the risk of that harm.
In R.P Dhanda V. Bhurelal, the appellant, a medical doctor, performed an eye operation for
cataract with patient’s consent. The operation resulted in the loss of eyesight. The doctor was
protected under this defence as he acted in good faith.
Section 89: Act done in good faith for the benefit of a child or insane person, by or by consent of
the guardian. Nothing which is done in good faith for the benefit of a person under twelve years
of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other
person having lawful charge of that person, is an offence by reason of any harm which it may
cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that
person
Section 92: Act done in good faith for benefit of a person without consent. Nothing is an offence
by reason of any harm which it may causes to a person for whose benefit it is done in good faith,
even without that person’s consent, if the circumstances are such that it is impossible for that
person to signify consent, or if that person is incapable of giving consent, and has no guardian or
other person in lawful charge of him from whom it is possible to obtain consent in time for the
thing to be done with benefit.
Section 90: Consent known to be given under fear or misconception. A consent is not such a
consent as is intended by any section of this Code,
if the consent is given by a person under fear of injury, or under a misconception of fact, and if

the person doing the act knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception; or
Consent of insane person if the consent is given by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and consequence of that to which he gives his
consent; or
Consent of children, the contrary appears from the context, if the consent is given by a person
who is under twelve years of age.
In Jakir Ali v. State of Assam, it was proved beyond doubt that the accused had sexual
intercourse with the victim on a false promise of marriage. The Gauhati High Court held that
submission of the body by a woman under fear or misconception of fact cannot be construed as
consent and so conviction of the accused under sections 376 and 417 of the Indian Penal Code
was proper.
Section 91: Exclusion of acts which are offences independently of harm caused.
The exceptions in sections 87, 88 and 89 do not extend to acts which are offences independently
of any harm which they may cause, or be intended to cause or be known to be likely to cause, to
the person giving the consent, or on whose behalf the consent is given.
Communication under Section 93
Communication made in good faith. No communication made in good faith is an offence by
reason of any harm to the person to whom it is made if it is made for the benefit of that person.
Example: A doctor in good faith tells the wife that her husband has cancer and his life is in
danger. The wife died of shock after hearing this. The doctor will not be liable because he
communicated this news in good faith.
Duress under Section 94
Act to which a person is compelled by threats. Except murder, and offences against the state
punishable with death, nothing is an offence which done by a person compelled to do it under
threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that
person will otherwise be the consequence, provided the person doing the act did not of his own

accord, or from reasonable apprehension of harm to himself short of instant death, place himself
in the situation by which he became subject to such constraint.
Example: A was caught by a gang of dacoits and was under fear of instant death. He was
compelled to take gun and forced to open the door of house for entrance of dacoits and harm the
family. A will not be guilty of offence under duress.
Trifles under Section 95
Act causing slight harm is included under this section. Nothing is an offence by reason that it
causes, or that it is intended to cause, or that it is known to be likely to cause, any harm if that
harm is so slight that no person of ordinary sense and temper would complain of such harm.
In Mrs. Veeda Menezes v. Khan, during the course of exchange of high tempers and abusive
words between appellant’s husband and the respondent, the latter threw a file of papers at the
former which hit the appellant causing a scratch on the elbow. SC said that the harm caused was
slight and hence, not guilty.
Private Defence under Section 96 – 106
Section 96: Things done in private defence.
Nothing is an offence in which a person harms another person in the exercise of private defence.
Section 97: Right of private defence of body and property.
Every person has a right to private defence, provided under reasonable restriction under Section
99.
Protecting his body or another person’s body, against any offence in which there is a danger to
life.
Protecting his or another person’s movable or immovable property, against any offence like
theft, robbery, mischief or criminal trespass or an attempt to commit theft, robbery, mischief or
criminal trespass.
Example: A father, in order to protect the life of daughter from the attack of a thief, shoots him
in his leg. But the father will not be liable as he was protecting the life of his daughter.
In Akonti Bora v. State of Assam, the Gauhati High Court held that while exercising the right of
private defence of property the act of dispossession or throwing out a trespasser includes right to
throw away the material objects also with which the trespass has been committed.

Section 98: Right of private defence against the act of a person of unsound mind etc.
When an act which would otherwise be a certain offence, is not that offence, by reason of the
youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the
person doing that act, or by reason of any misconception on the part of that person, every person
has the same right of private defence against that act which he would have if the act were that
offence.
Example: A attempts to kill Z under influence of insanity but A is not guilty. Z can exercise
private defence to protect himself from A.
Section 99: Acts against which there is no right of private defence.
There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or
Attempted to be done, by a public servant acting in good faith under color of his office, though
that act may not be strictly justifiable by law.
There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or
Attempted to be done, by the direction of a public servant acting in good faith under colour of his
office though that direction may not be strictly Justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities.
The harm caused should be proportional to that of imminent danger or attack.
In Puran Singh v. State of Punjab, the Supreme Court observed that where there is an element of
invasion or aggression on the property by a person who has no right of possession, then there is
obviously no room to have recourse to the public authorities and the accused has the undoubted
right to resist the attack and use even force, if necessary.
Section 100: When the right of private defence of the body extends to causing death.
Assault causing reasonable apprehension of death.
Reasonable apprehension of grievous hurt.
Committing rape
Unnatural lust
Kidnapping or abducting

Wrongfully confining a person in which that person reasonably apprehends the assault and not
able to contact public authority.
Act of throwing or attempting to throw acid, causing apprehension in the mind that assault will
cause grievous hurt.
In Yogendra Morarji v. state, the SC discussed in detail the extent and limitations of the right of
private defence of the body. There must be no safe or reasonable mode of escape any retreat for
the person confronted with imminent peril to life or bodily harm except by inflicting death.
Section 101: When such rights extend to causing any harm other than death.
If the offence be not of any of the descriptions enumerated in the last preceding section, the right
of private defence of the body does not extend to the voluntary causing of death to the assailant,
but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the
assailant of any harm other than death.
In Dharmindar v. State of Himachal Pradesh, that onus of proof to establish the right of private
defence is not as onerous as that of a prosecution to prove its case. Where the facts and
circumstances lead to a preponderance of probabilities in favor of the defence case it would be
enough to discharge the burden to prove the case of self-defence.
Section 102: Commencement and continuance the right of private defence of the body.
The right of private defence of the body commences as soon as a reasonable apprehension of
danger to the body arises from an attempt or threat to commit the offence though the offence
may not have been committed; it continues as long as such apprehension of danger to the body
continues.1
Example: A, B, and C were chasing D to kill him in order to take revenge, but suddenly they saw
a policeman coming from another side. They got afraid and turned back to run. But D shoots B in
his leg, even when there was no imminent danger of harm. D will be liable as there was no
apprehension of death or risk of danger.
Section 103: When the right of private defence of property extends to causing death.
Robbery;
House-breaking by night;
Mischief by fire committed on any building, tent or vessel, building, tent or vessel used as a

human dwelling, or a place for the custody of property;
Theft, mischief, or house-trespass, under such circumstances, as may reasonably cause
apprehension that death or grievous hurt will be the consequence if such right of private defence
is not exercised.
Example: C Attempts to stab D maliciously while committing burglary in D’s house. There is a
reasonable apprehension in the mind of D that C will hurt him grievously, so in order to save
himself and property, C throttled D with a knife in his chest, causing Death. C will not be liable.
In Mohinder Pal Jolly v. State, the deceased worker and some of his colleagues were shouting
slogans for demands outside the factory. Some brickbats were also thrown by them which
damaged the property of the owner who fired two shots from outside his office room, one of
which killed the deceased worker. The court held that it was a case of mischief and the accused
will not get the defence of this section.
Section 104: When such right extends to causing harm other than death.
If the offence, the committing of which, or the attempting to commit which occasions the
exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the
descriptions enumerated in the last preceding section, that right does not extend to the voluntary
causing of death, but does extend, subject to the restrictions mentioned in section 99, to the
voluntary causing to the wrong-doer of any harm other than death.
Example: If A has committed criminal trespass in order to annoy B or hurt him, then B will have
the right to harm A in proportional manner, not causing death of the person.
In V.C Cheriyan v. State, the three deceased along with other persons had illegally laid a road
through private property of the church. A criminal case was pending against them. The three
accused belonging to church put up barricades across this road. The deceased was stabbed by
accused and Kerela HC held that private defence does not extend to causing the death of a person
in this case.
Section 105: Commencement and continuance of the right of private defence of property.
The right of private defence of the property commences when:
A reasonable apprehension of danger to the property commences. The right of private defence of
property against theft continues until the offender has effected his retreat with the property

Or, either the assistance of the public authorities is obtained,
Or, the property has been recovered.
The right of private defence of property against robbery continues as long as the,
Offender causes or attempts to cause to any person death or hurt
Or, wrongful restraint
As long as the fear of instant death or
Instant hurt or
Instant personal restraint continues.
The right of private defence of property against criminal trespass or mischief continues as long
as the offender continues in the commission of criminal trespass or mischief.
The right of private defence of property against house-breaking by night continues as long as the
house-trespass which has been begun by such house-breaking continues.
Example: Suppose a thief into the house of an individual, and attempts to hurt him instantly with
a knife, then that individual has the right to act in private defence and harm that thief to save life
and property.
In Nga Pu Ke v. Emp, paddy sheaves belonging to the accused were removed illegally by a
person. Accused attacked the cartmen and that cartmen jumped off the carts and ran away
leaving sheaves. The accused still chased him and attacked him leading to death. The court held
him as guilty of offence.
Section 106: Right of private defence against deadly assault when there is a risk of harm to
innocent person.
If in the exercise of private defence against an assault, a person causes apprehension of death, in
which defender has no choice but harming an innocent person, his right will extend to that
running of risk. 4
Example: C is attacked by a mob who attempts to murder him. He cannot exercise his right to
private defence without firing on the mob. In order to save himself, he is compelled to hurt
innocent children while firing so C committed no offence as he exercised his right.
Conclusion
So these were the general exceptions which are available to the accused to escape liability or
save himself from the offence committed. It may extend to even causing the death of a person or

harm an innocent person too depending upon the circumstances. The accused should also have
the right to be heard, keeping in view the democratic character of our nation. That’s why these
exceptions are provided so as to represent oneself in the court of law.
UNIT THREE
Incoherent Forms of Crime a. Joint and Constructive Liability b. Criminal Conspiracy c.
Attempt d. Abetment
The concept of Joint Liability is present both in civil and criminal law. But here we will discuss
only criminal joint liability.
The concept of joint liability comes under Section 34 of IPC which states that “when a criminal
act is done by several persons, in furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it were done by him alone.” The section can
be explained as when two or more persons commit any criminal act and with the intention of
committing that criminal act, then each of them will be liable for that act as if the act is done by
them individually.
“The mind was apt to take pleasure in adapting circumstances to one another, and even in
straining them a little, if need be, to force them to form parts of one connected whole, and the
more ingenious the mind of the individuals, the more likely was it, considering such matters, to
overreach and mislead itself, to supply some little link that is wanting, to take for granted some
fact consistent with its previous theories and necessary to render them complete” – A warning
addressed by Baron Alderson to the jury in Reg v. Hodge (1838) 2 Lew 227, on danger that
conjecture or suspicion may take the place of legal proof.
“The conspirators invariably deliberately, plan and act in secret over a period of time. It is not
necessary that each one of them must have actively participated in the commission of the offence
or was involved in it from start to finish. What is important is that they were involved in the
conspiracy or in other words, there is a combination by agreement, which may be expression or

implied or in part implied…” Firozuddin Basheeruddin and others vs. State of Kerala, 2001 SCC
(Crl) 1341.
“The offence of conspiracy to commit a crime is different offence from the crime that is the
object of the conspiracy because the conspiracy precedes the commission of the crime and is
complete before the crime is attempted or completed, equally the crime attempted or completed
does not require the element of conspiracy as one of its ingredients they are, therefore quite
separate offences.” [Leo Roy Frey V. Suppdt. Distt. Jail (AIR 1958 SC 119)].
“Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular
accused was party to the conspiracy. Once the object of conspiracy has been achieved, any
subsequent act, which may be unlawful, would not make the accused a part of the
conspiracy.” State v. Nalini, (1999) 5 SCC 253
“The essential ingredients of the offence of criminal conspiracy are: (i) an agreement between
two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an
illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore,
plain that meeting of minds of two or more persons for doing or causing to be done an illegal act
or an act by illegal means is sine qua non of criminal conspiracy. - Rajiv Kumar v. State of U.P.,
(2017) 8 SCC 791
The above mentioned judicial pronouncements crystallize the law on criminal conspiracy as
applicable in India.
Criminal conspiracy under the Indian Penal Code (IPC) is a substantive offence in itself and
punishable separately. There have been rare instances where persons have been tried for
commission of the substantive act of criminal conspiracy.
However, most commonly, the charge of criminal conspiracy is slapped on an accused person
along with the charge of a substantive offence under the IPC or any other law which he may be
accused of committing along with other co-conspirators.
Criminal conspiracy is hatched to commit an illegal act which is an offence punishable under
law. It is not essential that the accused person must do an overt act, and mere agreement between
two or more persons to commit an illegal act is sufficient to constitute the offence of criminal
conspiracy. It is also not necessary that the object of the conspiracy should have been achieved
for it to be considered as an offence. Even if the conspiracy fails on account of abandonment or
detection before commission of offence, the very act of entering into an agreement by the co-

conspirators is itself an offence and punishable under the law.
However, it has to be kept in mind that the standard of proof for the act of criminal conspiracy is
the same as that of any other criminal offence i.e. beyond reasonable doubt.
In the case of State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820, it was held that:
“A few bits here and a few bits there on which the prosecution relies cannot be held to be
adequate for connecting the accused in the offence of criminal conspiracy”.
Also, in the case of State of Maharashtra & Ors. v. Som Nath Thapa &Ors., (1996) 4 SCC 659, it
was observed that:
“for a person to conspire with another, he must have knowledge of what the co-conspirators were
wanting to achieve and thereafter having the intent to further the illegal act takes recourse to a
course of conduct to achieve the illegal end or facilitate its accomplishment.”
In Subramaniam Swamy v. A Raja, (2012) 9 SCC 257, it was held that,
“suspicion cannot take the place of legal proof and existence of a meeting between the accused
persons is not by itself sufficient to infer the existence of criminal conspiracy.”
But the use of the offence of criminal conspiracy in contemporary times by investigating
agencies and courts is not in accordance with the above stated well-settled principles of law. This
has resulted in dilution of the law relating to criminal conspiracy.
In many cases today, the concept of 'deemed presumption' is applied, which is otherwise not
available under the IPC. Undoubtedly, criminal conspiracies are hatched in secrecy and can only
be perceived by actions of the participants, however that should not in any way dilute the
standard of proof of “beyond reasonable doubt” that must be met by the prosecution.
It has never been easy to get direct evidence for proving an offence under Section 120-A, which
defines criminal conspiracy. Considering this fact, Section 10 of the Indian Evidence Act comes
into play.
This section can be divided into two parts: firstly where there is reasonable ground to believe that
two or more persons have conspired to commit an offence or an actionable wrong. Only when
this condition precedent is satisfied, the second part of the section comes into operation i.e.
anything said, done or written by any one of such persons in reference to the common intention
after the time when such intention was first entertained by any one of them is a relevant fact
against each of the persons believed to be so conspiring as well for the purpose of proving the
existence of the conspiracy.

It is therefore necessary that a prima facie case of conspiracy has to be established for application
of Section 10. The second part of section permits the use of evidence which otherwise could not
be used against the accused person. Sardar Sardul Singh Caveeshar v. State of
Maharashtra [(1964) 2 SCR 378], is an authority on this issue.
The English rule on this matter is, in general, well settled. It is a common law
rule. R.v. Blake illustrates the two aspects of it, i.e. what is admissible and what is inadmissible.
What was held to be admissible against the conspirator was the evidence of entries made by his
fellow conspirator contained in various documents actually used for carrying out the fraud. But a
document not created in the course of carrying out the transaction, but made by one of the
conspirators after the fraud was completed, was held to be inadmissible against the other.
The basic concepts of criminal conspiracy as enumerated above are losing their essence,
resulting in misuse of this provision to the detriment of proper manifestation of law on this
subject. It has been observed that trial courts in India are not following these principles. What is
being done is that first they look for evidence which may be permitted under Section 10 of the
Evidence Act and then apply it to the facts of a case to presume existence of criminal conspiracy.
It has to be ensured that all the stakeholders of the justice delivery mechanism do their duty
diligently, and in a manner which is in consonance with the concept of criminal law as settled,
followed and practiced.
The police and other investigating agencies, wanting to make someone an accused, in spite of a
case having no evidence, use this age-old formula of invocation of Section 120-B IPC and bring
all named in the charge sheet under its umbrella.
There have been numerous instances of such invocation of Section 120B IPC, like in the Indira
Gandhi murder case, where Balbir Singh was convicted by the trial court. His conviction was
upheld by High Court, but he was ultimately acquitted by the Supreme Court. In the Parliament
House Attack case, the trial court convicted all the accused, but the High Court acquitted SAR
Gillani and Afsan Guru. The Supreme Court ultimately upheld the judgment of the High Court
for these two persons. Similarly, in the Jain Hawala case, the trial court framed charges against
both VC Shukla and LK Advani along with the Jain Brothers. However, the High Court
discharged them, an order which was confirmed by the Supreme Court by dismissing the appeal
of the CBI.
Certain pressure groups in their zeal to prove their relevance, start exerting unnecessary pressure

on our very robust and independent justice delivery mechanism. This should be shunned,
otherwise there are chances of misuse or wrong implementation of the law of criminal
conspiracy to achieve misplaced moral victories.
The well-established rule of criminal justice “fouler the crime higher the proof” should always be
remembered and followed. This, in my belief, is still the hallmark of our superior courts, but we
have to remain cautious and not allow it to get diluted, especially by our investigating agencies.
The ingredients of section 34 of IPC are-

1) A criminal act is done by several persons;
2) The criminal act must be to further the common intention of all;
3) There must be participation of all the persons in furthering the common intention.
Let us take a hypothetical situation- There are two persons A and B. Both of them decided to rob
a bank to earn some quick money. Both of them decided in advance that they will not hurt
anybody and they will only take the money. After reaching the bank A tells B to guard the gate
of the bank while he takes the money. When A was taking the money, security guard came
running towards A. A out of fear, stabbed the security guard with a knife due to which he died.
After that A ran with B along with the knife. In this case, even though B had no intention of
killing the security guard but he will also be liable for the murder of security guard and robbery
along with A.
he concept of Joint Liability is embodied under Section 34 of Indian Penal Code – “Acts done by
several persons in furtherance of common intention- when a criminal act is done by several
persons in furtherance of common intention of all, each of such persons is liable for that act in
the same manner as if done by him alone.” When IPC was enacted in 1860, section 34 at that
time didn’t included words ‘in furtherance of common intention’, then an amendment was made
in year 1870 to amend Indian Penal Code and then these words were included in the section 34.
The amended section 34 of IPC simply says that all those persons who have committed a crime
with a common intention and they have acted while keeping in mind the common intention, then
everyone should be liable for the acts of another done in common intention as if the act is done
by the person alone. It happens that different persons perform different acts in the commission of
the act or non commission of the act, even though when section 34 applies, all the persons in

group are jointly liable for the acts of another.
The concept of Joint Liability was evolved in the case of Reg v. Cruise, in this case police had
gone to arrest A at his home. B, C and D were also present at that time. When all the three
persons saw police coming, they came out of the house and gave a blow on the police and they
drove them away. The court held that all the three are liable for the blow even if the blow was
given by only one person.
The ingredients of Section 34 are:

· There should be criminal act- Criminal Act means that either committing the act or omitting to
commit the act, which is an offence under IPC.
That criminal act is done by several persons- For the Section to apply, it is necessary that the act
is done by more than one person as if the act is done by only one person then this section does
not applies. That criminal act is done in the furtherance of common intention of all- it means that
the persons should have decided in advance about the commission of the act and every one of
them have acted keeping in mind that common intention.There should be participation in some
way or other in the commission of the act- the persons cannot be held liable if they have decided
what to do and then they have not done that thing, every person who is a part of the group should
do something so as to participate in the commission of the act. The case of Barendra Kumar
Ghosh v. King Emperor was one of the earliest cases where the court convicted another person
for the act of another done in furtherance of common intention. The facts of the case are, a group
of armed persons entered in the police station on 3rd August, 1923. They demanded money from
the post master where he was counting the money. They fired from the pistol at the postmaster,
due to which the postmaster died on the spot. All of the accused ran away without taking money.
The Police was able to catch Barendra Kumar Ghosh who was standing outside the post office as
a guard. Barendra’s contention was that he was only standing as a guard but the Calcutta high
court convicted him for murder under section 302 r/w section 34 of Indian Penal Code. When he
appealed in the Privy Council, his appeal was rejected.
Section 34 of Indian Penal Code gives only a general definition as to what constitutes joint
liability, it does not give any punishment for criminal acts done jointly by two or more than two

persons. This section is only a rule of evidence and it does not create any substantial offence.
Section 34 on its own does not create any distinct offence and it lays down just a principle of
liability that when two or more persons do something which is contrary to law, then both of them
should be held liable. The Section 34 of IPC is a principle of constructive liability and the
essence of that liability is existence of common intention in the minds of accused. There is also a
canon in the criminal jurisprudence that the courts cannot distinguish between the conspirators
and it is possible for them to see what part is played by which conspirator in the commission of
the crime, so each person is held jointly liable for the acts of another. Since section 34 is itself
not an offence, so every time when any criminal act is done by two or more persons, then both
the sections i.e. section for that criminal offence and section of joint liability is applied. In the
above case also, section 34 was applied with section 302 of IPC so as to convict the offender. As
no offence is prescribed under section 34 of IPC, this section is always read with other sections
of IPC. Some of the sections in which the concept of joint liability is discussed in IPC are section
34, section 120A and 120 B, section 149 of IPC.
Section 120A of Indian Penal Code gives definition as to what constitutes criminal conspiracy-
“when two or more persons agree to do, or cause to be done,-
· An illegal act, or
An act which is not illegal by means, such an agreement is designated as criminal conspiracy
provided that no agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more parties to such
agreement in pursuance thereof.”
The definition simply means that when two or more persons agree to do some illegal act or agree
to do a legal act by illegal means then that amounts to criminal conspiracy. The act is only which
has been agreed by the parties earlier and not any other act. The term illegal has been defined in
the Indian Penal Code in section 43- “ the word illegal is applicable to everything which is an
offence or which is prohibited by law, or which furnishes ground for a civil action; and a person
is said to be legally bound to do whatever is illegal in him to omit.”
When the IPC was enacted, it had only two provisions through which conspiracy was made

punishable. One provision was the abetment by conspiracy and other was special offences which
require more than 2 persons for committing them. When the IPC was amended in the year 1870,
the law of conspiracy was widened by the insertion of section 121A which is waging war or
attempting to wage war against government of India. In the year 1913 when Indian Criminal Law
Amendment Act came, then chapter V-A was added in the Indian Penal Code and thus adding
two sections i.e. section 120A and section 120B.
The main essence of conspiracy that is embodied in section 120A of Indian Penal Code is the
unlawful agreement and ordinarily the offence is complete when the unlawful agreement is
framed. It is not necessary that there should be some overt act in furtherance of the agreement
made and it is not at all necessary that the object for which the conspiracy was made should be
achieved.
Section 120B of Indian Penal Code prescribes punishment for the offence of criminal
conspiracy- “Whoever is a party to a criminal conspiracy to commit an offence punishable with
death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall,
where no express provision is made in this Code for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be punished with imprisonment of either description for a
term not exceeding six months, or with fine or with both.”
This section gives punishment for criminal conspiracy. It simply says that every person who is a
part of criminal conspiracy for offences punishable with death, imprisonment for life or rigorous
imprisonment for two years or upwards will be punished in the same was as if that person has
abetted the offence and whoever is a party to any other conspiracy will be punished with
imprisonment for a period not more than six months or fine or both.
A view came that a person should not be charged for conspiracy, if due to that conspiracy, some
act has been omitted. This view was not correct. The criminal conspiracy is itself an independent
offence and even if other offences are committed in pursuance of criminal conspiracy, then also

the person is charged for criminal conspiracy as the liability of conspirators is still present.
Section 149 of Indian Penal Code deals with offence in which every member of an unlawful
assembly is guilty of offence committed in prosecution of common object. The sections says
that-“If an offence is committed by any member of an unlawful assembly in prosecution of the
common object of that assembly, or such as the members of that assembly knew to be likely to
be committed in prosecution of that object, every person who, at the time of the committing of
that offence, is a member of the same assembly, is guilty of that offence.” This section simply
means that if any member of an unlawful assembly commits an offence in prosecution of
common object for which the assembly was formed, if the members of the assembly knew that
such act is likely to be committed for achieving that common object, then every person who is a
member of that unlawful assembly will be guilty of that offence. The punishment under section
149 is same as that of the offence which is committed in the unlawful assembly. If the
prosecution wants to prove a person under section 149 of IPC, then it has to prove the presence
of the person at the site and his participation in the unlawful assembly. This section creates a
constructive liability or vicarious liability on the members of the unlawful assembly for the
unlawful acts committed in pursuance of the common object. Once the case of a person falls in
this section, the question that he did nothing with his own hands is immaterial. He cannot take
the defence that he didn’t commit that offence, every person in an unlawful assembly knows the
natural and probable consequences of the object to be achieved by the unlawful assembly. Mere
part of an unlawful assembly will make all the persons liable for the unlawful act of other
members. In this section, the liability of the members other than the principle offender is based
on the fact that whether other members knew that the offence that was committed was likely to
be caused in pursuance of the common object.
Case Laws Analysis

In the case of Rangaswamy v. State of Tamil Nadu, accused no. 3 was convicted by the trial
court for committing offences contrary to section 302 r/w section 34; section 307 r/w section 34
and section 506 of IPC. He came to the Supreme Court with the pleading that he was only with
friendly terms with accused no. 1 and accused no. 2 and he did not shared common intention
with them to kill the deceased or to attack deceased companion. He said that it was by chance

that he was present at the site of offence and he had not participated in the commission of the
offence. The accused no. 1 had a prior enmity with the deceased as he was accused of murdering
brother of accused no. 1 and then he was released on bail. The occurrence of crime took place in
bazaar. The court held that presence of accused no. 3 was established at the site of offence but
there is no evidence to show that he shared a common intention with the other two accused. The
Supreme Court acquitted accused no. 3 of all the charges.
In the case of William Stanley v. State of Madhya Pradesh, the accused in this case was a 22 year
old man who was in love with the sister of the deceased. The deceased didn’t like his intimacy.
On the day of occurrence, there was a quarrel between the deceased and the accused and the
accused was asked to go away from the house. Later, the accused returned with his younger
brother and called the sister of deceased to come out. Instead of the sister, the deceased brother
came out. There was a heated exchange of words. The accused slapped the deceased on the
cheek. Then accused snatched hockey stick from his younger brother and gave one blow on the
head of deceased due to which his skull was fractured. The deceased died in hospital 10 days
later. According to doctor, the injury was such as likely to cause death. Both accused and his co-
accused brother were charged for murder under section 302 read with section 34 of IPC. The co-
accused brother was acquitted of all the charges but appellant was held guilty under section 302
of IPC. On the facts of the case, the conviction was altered into culpable homicide not amounting
to murder under section 304 of IPC.
In the case of Chhotu v. State of maharashtra, the complainant party was attacked by the accused
as a result of which one person died. The witness produced stated that three persons were
assaulting the deceased and the fourth one was simply standing holding a knife in his hand. It
was held that only three accused were liable under section 302/34 of IPC and fourth one didn’t
share the common intention.
In the case of Dadasaheb Patalu Misal and others v. State of Maharashtra, an incident happened
at the village Panchegaon-Khurd, Taluka Sangola, District Solapur on the morning of 30th July
1980 around 7.30 A.M. The case is about 32 accused who formed into an unlawful assembly
with the common object of forcibly removing the wood from the scene of offence. They were
even ready to do a murderous assault it required. The accused armed themselves with axes,

sticks, spears, iron bars and whips, etc. and went to the scene of offence on that particular day
and started removing woods. The complainant and his brothers also came to the site. When
complainant stopped them from taking away wood, accused no. 1 suddenly inflicted an axe blow
on ganpati. Then other accused also inflicted blows on ganpati. Accused no. 2 inflicted blow on
vithoba who was going towards ganpati. The court convicted only some of the persons for
unlawful assembly and the remaining were acquitted. The court also said that presence of a
person at the site of offence even with weapons does not amount that he is a part of the offence.
In the case Ramdan and another v. State of Rajasthan, the appellants were convicted under
section 307/34 of IPC. The facts are as follows. On 30th april, 1970, head constable Jangbahadur
along with his party proceeded for patrolling. At about 6 P.M., they observed footprints of four
camels having entered into Indian Border from Pakistan. The footprints were followed. Lakinram
along with his party was also following the footprints. When his party reached outside the village
Bogniyai, it was observed that the foot-prints of the two camels were diverted towards village
Negarda and of the two camels went straight. Then there was a firing between accused party and
border security force. The appellants were just moving here and there at the time of firing and
finally sat under a tree. The court acquitted both the persons saying that section 34 is not
applicable.
In the case of Rambaboo son of Kailash Narain and others v. State, a F.I.R was lodged by Bhajan
Lal at 11:30 PM on 2nd september, 1979 in Kakwan district, Kanpur. He said in his F.I.R that on
the aforesaid date akanoont about 8:30 PM, Ram Saran Bahelia came to his house from Ambari
Har and told him that his brother Raj Kumar Pradhan had been murdered in Usar land between
village Anayee and Sargavan. Bhajanlal then went to that place with other people in the village
and saw that the dead body of Raj Kumar is in the field of Mohan Lal Dhanuk. Then he went to
lodge complaint. A number of names came up in investigation. Dayashankar, a prosecution
witness said that he heard them making conspiracy against Raj Pradhan. The appellants were
acquitted of all the charges against them.
In the case of State of Haryana v. Pradeep Kumar and others, some persons were charged under
murder of Krishnan Kumar Khandelwal who was a major contestant and majority of party
members were supporting him. The respondent who was also present at the time of murder and

believed to be main conspirator was acquitted by the court. When the state appealed against the
acquittal of Pradeep Kumar, it was rejected by Supreme Court.
In the case of Raju@Raj Kumar v. State of Rajasthan, the facts of the case are as follows, person
filed a complaint in police station that when he and his father were at his uncle’s residence, 10 to
12 persons came in the room and after surrounding his father, they killed him. According to the
FIR, there was enmity between Ram Kishan Khandelwal on one hand and Hanuman, Hanif,
Chhitar and Ramesh Shanker on the other hand. It was said the actual murder was done by Iqbal,
Aziz, Raju Naik (appellant herein), Mahendra Singh, Hamid and Firoz. According to post-
mortem report, the death was due to Syncope. Then court held that the conviction and sentence
passed by session court is not correct and it ordered the acquittal of accused. The accused
number 8 Sayeed was also acquitted of the charges as the allegations against him could not be
proved.
In the case of Heera and another v. State of Rajasthan, a person was crushed by a vehicle at the
bus stand. On the statement of witnesses, the police found that murder was done by 7 persons.
The accused Heera and Rama @ Ram Singh along with co accused Anna. Mangla, Modu,
Dharma and Satya Narayan were arrested. Some of the co-accused were acquitted and remaining
were not. The court allowed the appeal and set aside the conviction of accused and he was set
free.
In the case of Balaji Gunthu Dhule v. State of Maharashtra, the Supreme Court set aside the
conviction of petitioner. The facts of the case are as follows; there was a quarrel between Ranga
Rao (deceased) and Shantabai (other accused who died during trial). There was allegation that
the accused persons have killed Ranga Rao. The appellant in his statement under Section 313 of
the Code admits that there was a quarrel between Shantabai (deceased accused) and P.W. 10 and
while rushing to the spot of quarrel the deceased involuntarily fell on a cement concrete platform
- Otta and thereby suffered the fatal injury. The court then acquitted the appellant even though he
was present at the site of offence.
Conclusion and Suggestions

The concept of joint liability is embodied in section 34 of Indian penal Code. This section just
gives the definition of joint liability and it does not give any punishment for the same. This
section has to be read with various other sections of IPC like section 120A which gives definition
of criminal conspiracy, section 120 B which gives punishment for criminal conspiracy and
section 149 which deals with unlawful assembly. This section 34 cannot be applied on its own
and has to be applied with some other section so as to make a person jointly liable for that
offence.
UNIT FOUR
Punishment a. Offence against the State b. Offence against Public Tranquility c. Theories
of Punishment with special reference to Capital Punishment
A. Chapter VI, Section 121 to Section 130 of the Indian Penal Code deals with offences against
State. Section 121A and Section 124A were added to the code in 1870. The Indian Penal Code
1860 has made provisions to safeguard and preserve State's existence and has provided the most
Severe punishment of the death sentence or life imprisonment and fine in case of offence against
the state.
1) Waging, or attempting to wage war, or abetting waging of war, against the Government of
India. 121.
Section 121 of the Indian Penal Code, 1860 says that whoever wages war against the
Government of India, or attempts to wage such war, or abets the waging of such war, shall be
punished with death, or imprisonment for life and shall also be liable to fine.
Illustration :
A joins an insurrection against the Government of India. A has committed the offence defined
in this section
Ingredients of Section 121:
To constitute the offence under Section 121 of the Indian Penal Code the following
ingredients must exist:

(1) Accused must wage war, or
(2) Attempt to wage war
(3) Abet the waging of such war.
(4) Against the Government of India
The offence under Section 121 is cognizable, non-bailable, non-compoundable and triable
by Court of Session.
2) Conspiracy to commit offences punishable by section 121:

Section 121A was added to the Indian Penal Code in 1870. It says that whoever within or
without India conspires to commit any of the offences punishable under section 121, or conspires
to overawe, by means of criminal force or the show of criminal force, the Central Government or
any State Government, shall be punished with imprisonment for life, or with imprisonment of
either description which may extend to ten years, and shall also be liable to fine.
Explanation -
To constitute a conspiracy under this section, it is not necessary that any act or illegal
omission shall take place in pursuance thereof.
3) Collecting arms, etc., with intention of waging war against the Government of India:
Section 122 of the Indian Penal Code says that, Whoever collects men, arms or ammunition
or otherwise prepares to wage war with the intention of either waging or being prepared to wage
war against the Government of India, shall be punished with imprisonment for life or
imprisonment of either description for a term not exceeding ten years, and shall also be liable to
fine.
Ingredients of Section 122:
To invoke Section 122 of the Code following ingredient must be satisfied

(1) A person collects a men, arms or ammunition, or otherwise prepares to wage war,; and
(2) He does so with the intention of either waging war against the Government of India or being

prepared to wage war against Government of India.
The offence under Section 122 of The Indian Penal Code is Cognizable, non-compoundable,
non-bailable and triable by Court of Session.
4) Concealing with intent to facilitate design to wage war:
Section 123 of the Code says that whoever, by any act, or by any illegal omission, conceals
the existence of a design to wage war against the Government of India, intending by such
concealment to facilitate, or knowing it to be likely that such concealment will facilitate, the
waging of such war, shall be punished with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.
Ingredients :
Essentials Ingredients of Section 123 of the Indian Penal Code are as follows
(1) A person commits an act or illegal or mission;
(2) He thereby conceals the existence of a design to wage war against the Government of India.
(3) He intends by such concealment to facilitate the waging war or knows it to be likely that,
such concealment will facilitate the waging of War.
The offence under section 123 is cognizable, non-bailable non-compoundable, and tribal
by Court of Session
5) Assaulting President, Governor, etc., with intent to compel or restrain the exercise of any
lawful power. 124:
According to Section 124 of the Code Whoever, with the intention of inducing or
compelling the President of India, or Governor of any State, to exercise or refrain from
exercising in any manner any of the lawful powers of such President or Governor, assaults or
wrongfully restrains, or attempts wrongfully to restrain, or overawes, by means of criminal force
or the show of criminal force, or attempts so to overawe, such President or Governor, shall be
punished with imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine.
B. This section is an extension of the second clause of Section 124A, of the Indian penal code,
which makes conspiracy to overawe by means of criminal force or show of criminal force
Government of India or any state Government punishable.

The offence under section 123 is cognizable, non-bailable non-compoundable, and tribal by
Court of Session.
6) Sedition:
Section 124A of the Indian Penal Code runs as follows:
Whoever by words, either spoken or written, or by signs, or by visible representation, or
otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards, the Government established by law in India, a shall be punished with
imprisonment for life, to which fine may be added, or with imprisonment which may extend to
three years, to which fine may be added, or with fine.
Explanation 1:
The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2:
Comments expressing disapprobation of the measures of the Government with a view to
obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt
or disaffection, do not constitute an offence under this section.
Explanation 3:
Comments expressing disapprobation of the administrative or other action of the

Government without exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section.
Essential Ingredients of Sedition:
Following are the essential ingredients of this section:
1 ) Bringing to attempting to bring into hatred; or
2) Exciting or attempting to excite disaffection against the Government of India;
3) Such act or attempt may be done -
(a) by words, either spoken or written, or
(b) by any signs, or
(c) visible representation; and
4) The act must be intentional

The offence under this section is cognizable, non-bailable non-compoundable, and tribal by
Court of Session.
7) Waging war against any Asiatic Power in alliance with the Government of India:
Section 125 of the Indian Penal Code says that whoever wages war against the
Government of any Asiatic Power in alliance or at peace with the Government of India or
attempts to wage such war or abets the waging of such war, shall be punished with imprisonment
for life, to which fine may be added, or with imprisonment of either description for a term which
may extend to seven years, to which fine may be added, or with fine.
Court of Session.
8) Committing depredation on territories of Power at peace with the Government of India:
Section 126 says that, Whoever commits depredation, or makes preparations to commit
depredation, on the territories of any Power in alliance or at peace with the Government of India,
shall be punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine and to forfeiture of any property used or intended to be used
in committing such depredation, or acquired by such depredation.
The offence under this section is cognizable, non-bailable non-compoundable, and tribal
9) Receiving property taken by war or depredation mentioned in sections 125 and 126 :
Section 127 of the Indian Penal Code says that whoever receives any property knowing
the same to have been taken in the commission of any of the offences mentioned in sections 125
and 126, shall be punished with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine and to forfeiture of the property so received.
The offence under this section is cognizable, non-bailable non-compoundable, and tribal
10) Public servant voluntarily allowing prisoner of state or war to escape:
According to Section 128 of the Indian Penal Code, whoever, being a public servant

and having the custody of any State prisoner or prisoner of war, voluntarily allows such prisoner
to escape from any place in which such prisoner is confined, shall be punished with
imprisonment for life, or imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
Court of Session.
11) Public servant negligently suffering such prisoner to escape (Section 129):
Whoever, being a public servant and having the custody of any State prisoner or prisoner
of war, negligently suffers such prisoner to escape from any place of confinement in which such
prisoner is confined, shall be punished with simple imprisonment for a term which may extend to
three years, and shall also be liable to fine.
The offence under this section is cognizable, bailable non-compoundable, and tribal by
Magistrate of First Class
12) Aiding escape of, rescuing or harbouring such prisoner:

Section 130 of the Indian Penal Code says that, whoever knowingly aids or assists any
State prisoner or prisoner of war in escaping from lawful custody, or rescues or attempts to
rescue any such prisoner, or harbours or conceals any such prisoner who has escaped from lawful
custody, or offers or attempts to offer any resistance to the recapture of such prisoner shall be
punished with imprisonment for life, or with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.
Explanation -
A State prisoner or prisoner of war, who is permitted to be at large on his parole within
certain limits in India, is said to escape from lawful custody if he goes beyond the limits within
which he is allowed to be at large.
Court of Session.
C. Offences against Public Tranquility

141. Unlawful assembly.
An assembly of five or more persons is designated an “unlawful assembly“, if the common
object of the persons composing that assembly is-

First – To overawe by criminal force, or show of criminal force, the Central or any State
Government or Parliament or the Legislature of any State, or any public servant in the exercise
of the lawful power of such public servant; or
Second – To resist the execution of any law, or of any legal process; or
Third – To commit any mischief or criminal trespass, or other offence; or
Fourth – By means of criminal force, or show of criminal force, to any person, to take or obtain
possession of any property, or to deprive any person of the enjoyment of a right of way, or of the
use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce
any right or supposed right; or
Fifth – By means of criminal force, or show of criminal force, to compel any person to do what
he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation-
An assembly which was not unlawful when it assembled, may subsequently become an unlawful
assembly.
142. Being member of unlawful assembly.
Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally
joins that assembly, or continues in it, is said to be a member of an unlawful assembly.
143. Punishment.
Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine, or with both.
CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 6 months, or fine, or both—cognizable—Bailable— Triable by
any Magistrate—Non-compoundable.
144. Joining unlawful assembly armed with deadly weapon.
Whoever, being armed with any deadly weapon, or with anything which, used as a weapon of
offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both.
Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable— Triable by
145. Joining or continuing in unlawful assembly, knowing it has been commanded to disperse.
Whoever joins or continues in an unlawful assembly, knowing that such unlawful assembly has
been commanded in the manner prescribed by law to disperse, shall be punished with

imprisonment of either description for a term which may extend to two years, or with fine, or
with both.
146. Rioting.
Whenever force or violence is used by an unlawful assembly, or by any member thereof, in
prosecution of the common object of such assembly, every member of such assembly is guilty of
the offence of rioting.
147. Punishment for rioting.
Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.
COMMENTS
The Sub-Inspector was pursuing investigation which is his duty and therefore it could not be said
that while he was pursuing the investigation, it was in pursuance of an unlawful object and
therefore no conviction could be passed under section 147;
Maiku v. State of Uttar Pradesh, (1989) Cr LJ 860 : AIR 1989 SC 67.
148. Rioting, armed with deadly weapon.
Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as
a weapon of offence, is likely to cause death, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both.
Magistrate of the first class—Non-compoundable.
COMMENTS
There must be nexus between the common object and the offence committed and if it is found
that the same was committed to accomplish the common object every member of the assembly
will become liable for the same;

Allauddin Mian Sharif Mian v. State of Bihar, (1989) Cr LJ 1466 : AIR 1989 SC 1456.
149. Every member of unlawful assembly guilty of offence committed in prosecution of common
object.
If an offence is committed by any member of an unlawful assembly in prosecution of the
common object of that assembly, or such as the members of that assembly knew to be likely to
be committed in prosecution of that object, every person who, at the time of the committing of
that offence, is a member of the same assembly, is guilty of that offence.
Punishment—The same as for the offence—According as offence is cognizable or non-
cognizable—According as offence is bailable or non-bailable—Triable by court by which the
offence is triable—Non-compoundable.
COMMENTS
(i) It is well settled that once a membership of an unlawful assembly is established, it is not
incumbent on the prosecution to establish whether any specific overt act has been assigned to
any accused. Mere membership of the unlawful assembly is sufficient;
State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom)
(ii) Every member of an unlawful assembly is vicariously liable for the acts done by others either
in the prosecution of the common object of the unlawful assembly or such which the members of
the unlawful assembly knew were likely to be committed;
State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom)
150. Hiring, or conniving at hiring, of persons to join unlawful assembly.
Whoever hires or engages or employs, or promotes, or connives at the hiring, engagement or
employment of any person to join or become a member of any unlawful assembly, shall be
punishable as a member of such unlawful assembly, and for any offence which may be
committed by any such person as a member of such unlawful assembly in pursuance of such
hiring, engagement or employment, in the same manner as if he had been a member of such
unlawful assembly, or himself had committed such offence.
Punishment—The same as for a member of such assembly, and for any offence committed by
any members of such assembly—Cognizable—According as offence is bailable or non-

bailable—Triable by court by which the offence is triable—Non-compoundable.
151. Knowingly joining or continuing in assembly of five or more persons after it has been
commanded to disperse.
Whoever knowingly joins or continues in any assembly of five or more persons likely to cause a
disturbance of the public peace, after such assembly has been lawfully commanded to disperse,
shall be punished with imprisonment of either description for a term which may extend to six
months, or with fine, or with both.
Explanation-
If the assembly is an unlawful assembly within the meaning of section 141, the offender will be
punishable under section 145.
Punishment—Imprisonment for 6 months, or fine, or both—Cognizable— Bailable—Triable by
152. Assaulting or obstructing public servant when suppressing riot, etc.
Whoever assaults or threatens to assault, or obstructs or attempts to obstruct, any public servant
in the discharge of his duty as such public servant, in endeavouring to disperse an unlawful
assembly, or to suppress a riot or affray, or uses, or threatens, or attempts to use criminal force to
such public servant, shall be punished with imprisonment of either description for a term which
may extend to three years, or with fine, or with both.
Magistrate of the first class—Non-compoundable.
153. Wantonly giving provocation with intent to cause riot—if rioting be committed—if not
committed.
Whoever malignantly, or wantonly, by doing anything which is illegal, gives provocation to any
person intending or knowing it to be likely that such provocation will cause the offence of rioting
to be committed, shall, if the offence of rioting be committed in consequence of such
provocation, be punished with imprisonment of either description for a term which may extend
to one year, or with fine, or with both; and if the offence of rioting be not committed, with
imprisonment of either description for a term which may extend to six months, or with fine, or
with both.

Para I: Punishment—Imprisonment for 1 year, or fine, or both—Cognizable— Bailable—Triable
by any Magistrate—Non-compoundable.
Para II: Punishment—Imprisonment for 6 months, or fine, or both—Cognizable— Bailable—
Triable by Magistrate of the first class—Non-compoundable.
153A. Promoting enmity between different groups on grounds of religion, race, place of birth,
residence, language, etc., and doing acts prejudicial to maintenance of harmony.
(1) Whoever-
(a) by words, either spoken or written, or by signs or by visible representations or otherwise,
promotes or attempts to promote, on grounds of religion, race, place of birth, residence,
language, caste or community or any other ground whatsoever, disharmony or feelings of
enmity, hatred or ill-will between different religious, racial, language or regional groups or castes
or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different
religious, racial, language or regional groups or castes or communities, and which disturbs or is
likely to disturb the public tranquillity, or
(c) organizes any exercise, movement, drill or other similar activity intending that the
participants in such activity shall use or be trained to use criminal force or violence or knowing it
to be likely that the participants in such activity will use or be trained to use criminal force or
violence, or participates in such activity intending to use or be trained to use criminal force or
violence or knowing it to be likely that the participants in such activity will use or be trained to
use criminal force or violence, against any religious, racial, language or regional group or caste
or community and such activity for any reason whatsoever causes or is likely to cause fear or
alarm or a feeling of insecurity amongst members of such religious, racial, language or regional
group or caste or community,
shall be punished with imprisonment which may extend to three years, or with fine, or with both.
(2) Offence committed in place of worship, etc- Whoever commits an offence specified in sub-
section (1) in any place of worship or in any assembly engaged in the performance of religious
worship or religious ceremonies, shall be punished with imprisonment which may extend to five
years and shall also be liable to fine.

Para I: Punishment—Imprisonment for 3 years, or fine, or both—Cognizable— Non-bailable—
Triable by any Magistrate of the first class—Non-compoundable.
Para II: Punishment—Imprisonment for 5 years and fine—Cognizable—Non- bailable—Triable
by Magistrate of the first class—Non-compoundable.
COMMENTS
(i) Mens rea is a necessary ingredient for the offence under section 153A of the Indian Penal
Code;
Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 Supreme Today 127.
(ii) Publication of the words or representation is not necessary under section 153A of the Indian
Penal Code;
Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) Supreme Today 127.
153AA. Punishment for knowingly carrying arms in any procession or organising, or holding or
taking part in any mass drill or mass training with arms.
Whoever knowingly carries arms in any procession or organizes or holds or takes part in any
mass drill or mass training with arms in any public place in contravention of any public notice or
order issued or made under section 144A of the Code of Criminal Procedure, 1973 shall be
punished with imprisonment for a term which may extend to six months and with fine which
may extend to two thousand rupees.
Explanation-
”Arms” means articles of any description designed or adapted as weapons for offence or defence
and includes fire-arms, sharp edged weapons, lathis, dandas and sticks.
Punishment-Imprisonment for 6 months and Fine of 2,000 rupees- Cognizable- Non-Bailable—
Triable by any Magistrate—Non-compoundable.
153B. Imputations, assertions prejudicial to national-integration.
(1) Whoever, by words either spoken or written or by signs or by visible representations or
otherwise,-
(a) makes or publishes any imputation that any class of persons cannot, by reason of their being
members of any religious, racial, language or regional group or caste or community, bear true
faith and allegiance to the Constitution of India as by law established or uphold the sovereignty
and integrity of India, or

(b) asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason
of their being members of any religious, racial, language or regional group or caste or commu-
nity, be denied or deprived of their rights as citizens of India, or
(c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any
class of persons, by reason of their being members of any religious, racial, language or regional
group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to
cause disharmony or feelings of enmity or hatred or ill-will between such members and other
persons,
shall be punished with imprisonment which may extend to three years, or with fine, or with both.
(2) Whoever commits an offence specified in sub-section (1), in any place of worship or in any
assembly engaged in the performance of religious worship or religious ceremonies, shall be
punished with imprisonment which may extend to five years and shall also be liable to fine.
Para I: Punishment—Imprisonment for 3 years, or fine, or both—Cognizable— Non-bailable—
Triable by any Magistrate of the first class—Non-compoundable.
Para II: Punishment—Imprisonment for 5 years and fine—Cognizable—Non- bailable—Triable
by Magistrate of the first class—Non-compoundable.
154. Owner or occupier of land on which an unlawful assembly is held.
Whenever any unlawful assembly or riot takes place, the owner or occupier of the land upon
which such unlawful assembly is held, or such riot is committed, and any person having or
claiming an interest in such land, shall be punishable with fine not exceeding one thousand
rupees, if he or his agent or manager, knowing that such offence is being or has been committed,
or having reason to believe it is likely to be committed, do not give the earliest notice thereof in
his or their power to the principal officer at the nearest police-station, and do not, in the case of
his or their having reason to believe that it was about to be committed, use all lawful means in
his or their power to prevent it, and, in the event of its taking place, do not use all lawful means
in his or their power to disperse or suppress the riot or unlawful assembly.
Punishment—Fine of 10,000 rupees—Non-cognizable—Bailable—Triable by any Magistrate—
Non-compoundable.
155. Liability of person for whose benefit riot is committed.

Whenever a riot is committed for the benefit or on behalf of any person who is the owner or
occupier of any land, respecting which such riot takes place or who claims any interest in such
land, or in the subject of any dispute which gave rise to the riot, or who has accepted or derived
any benefit therefrom, such person shall be punishable with fine, if he or his agent or manager,
having reason to believe that such riot was likely to be committed or that the unlawful assembly
by which such riot was committed was likely to be held, shall not respectively use all lawful
means in his or their power to prevent such assembly or riot from taking place, and for
suppressing and dispersing the same.
Punishment—Fine—Non-cognizable—Bailable—Triable by any Magistrate—Non-
compoundable.
156. Liability of agent of owner or occupier for whose benefit riot is committed.
Whenever a riot is committed for the benefit or on behalf of any person who is the owner or
occupier of any land respecting which such riot takes p lace, or who claims any interest in such
land, or in the subject of any dispute which gave rise to the riot, or who has accepted or derived
any benefit therefrom,
the agent or manager of such person shall be punishable with fine, if such agent or manager,
having reason to believe that such riot was likely to be committed, or that the unlawful assembly
by which such riot was committed was likely to be held, shall not use all lawful means in his
power to prevent such riot or assembly from taking place and for suppressing and dispersing the
same.
Punishment—Fine—Non-cognizable—Bailable—Triable by any Magistrate—Non-
compoundable.
157. Harbouring persons hired for an unlawful assembly.
Whoever harbours, receives or assembles, in any house or premises in his occupation or charge,
or under his control any persons, knowing that such persons have been hired, engaged or
employed, or are about to be hired, engaged or employed, to join or become members of an
unlawful assembly, shall be punished with imprisonment of either description for a term which
may extend to six months, or with fine, or with both.

Punishment—Imprisonment for 6 months, or fine, or both—Cognizable— Bailable—Triable by
any Magistrate—Non-compoundable
158. Being hired to take part in an unlawful assembly or riot.
Whoever is engaged, or hired, or offers or attempts to be hired or engaged, to do or assist in
doing any of the acts specified in Section 141, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine, or with both,
or to go armed- and whoever, being so engaged or hired as aforesaid, goes armed or engages or
offers to go armed, with any deadly weapon or with anything which used as a weapon of offence
is likely to cause death, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.
Para I: Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—Bailable—
Para II: Punishment—Imprisonment for 2 years, or fine, or both—Cognizable— Bailable—
159. Affray.
When two or more persons, by fighting in a public place, disturb the public peace, they are said
to “commit an affray“.
160. Punishment for committing affray.
Whoever commits an affray, shall be punished with imprisonment of either description for a term
which may extend to one month, or with fine which may extend to one hundred rupees, or with
both.
Punishment—Imprisonment for one month, or fine of 100 rupees, or both— Cognizable—
Bailable—Triable by any Magistrate—Non-compoundable.
1. Kinds of Punishment: - From Indian Penal Code, 1860

2. Theories of Punishment
Retribution
One of the oldest and most basic justifications for punishment involves the principles of revenge
and retribution. This equation of punishment with the gravity of the offense is embedded in the

Judeo–Christian tradition in the Mosaic laws of the Old Testament that emphasize the idea of “an
eye for an eye.” Neither constrained by questions of offender culpability nor directed at
preventing future wrongdoing, have offenders under a retributive philosophy simply got what
they deserve. Punishment is justified on its own grounds, a general principle that has remained
popular throughout Western history in both law and widespread public beliefs about how justice
should be dispensed in democratic societies.
The classical retributive principle of “let the punishment fit the crime” was the primary basis for
criminal sentencing practices in much of Western Europe in the nineteenth century. This
principle of punishment was subsequently modified in neoclassical thought to recognize that
some offenders who commit similar offenses may be less blameworthy or culpable due to factors
outside of their control (e.g., diminished capacity, mental disease or defect, immaturity). Under
this revised retributive theory of just deserts, punishment should fit primarily the moral gravity
of the crime and, to a lesser extent, the characteristics of the offender. A current example of
retributive principles being used as the basis for punishment involves mandatory sentencing
policies and sentencing guidelines systems in the United States. Mandatory sentences dictate
uniform sanctions for persons who commit particular types of offenses (e.g., enhanced penalties
for crimes committed with firearms), whereas determinate sentencing guidelines prescribe
specific punishments based on the severity of the criminal offense and the extensiveness of the
offender’s prior criminal record.
Consistent with a retributive philosophy, punishment under these sentencing systems focuses
primarily on the seriousness and characteristics of the criminal act rather than the offender.
Although retribution is often linked to criminal sanctions, it is equally applicable to other types
of legal sanctions and informal sanctions. For example, civil litigation that is based on the
principle of strict liability is similar to retributive philosophy in that compensatory and punitive
damages focus on the gravity of the prohibited act rather than characteristics of the offender.
Lethal and nonlethal sanctions that derive from blood feuds between rival families, range wars in
agrarian communities, terrorist attacks on civilian and government targets, and acts of “street
justice” by vigilante groups and other extrajudicial bodies are often fuelled by the twin motives
of revenge and retribution. Various economic punishments and sanctions that restrict business
practices (e.g., asset forfeitures, injunctions, product boycotts, worker strikes and slowdowns,
revocation of licenses, decertification of programs, cease-and-desist orders, denial of benefits)
may be justified on various utilitarian grounds like protecting society or deterring wrongdoing,

but they may ultimately reflect the widespread belief in letting the punishment fit the crime.
Retribution as a penal philosophy has been criticized on several fronts when it is actually applied
in practice. First, strict retributive sanctions based solely on the nature of the offense (e.g.,
mandatory sentences for drug trafficking, the use of firearms in the commission of crimes) are
often criticized as being overly rigid, especially in societies that recognize degrees of individual
culpability and blameworthiness. Second, the principle of lex talionis (i.e., the “eye for an eye”
dictum that punishment should correspond in degree and kind to the offense) has limited
applicability. For example, how do you sanction in kind, acts of drunkenness, drug abuse,
adultery, prostitution, and/or traffic violations like speeding? Third, the assumption of
proportionality of punishments (i.e., that punishment should be commensurate or proportional to
the moral gravity of the offense) is untenable in most pluralistic societies because there is often
widespread public disagreement on the severity of particular offenses.
Under these conditions, a retributive sentencing system that espouses proportional sanctions
would be based on the erroneous assumption that there is public consensus in the rankings of the
moral gravity of particular types of crime. Even with these criticisms, however, the retributive
principle of lex talionis and proportionality of sanctions remains a dominant justification of
punishment in most Western cultures. Retribution under a Judeo–Christian religious tradition
offers a divine justification for strict sanctions and it clearly fits popular notions of justice (e.g.,
“he got what was coming to him”). The dictum of “let the punishment fit the crime” also has
some appeal as a principled, proportional, and commensurate form of societal revenge for
various types of misconduct.
One of the most convincing statements of the retribution theory was given by Immanuel Kant in
the eighteenth century as follows:
….Punishment can never be administered merely as means for promoting another good, either
with regard to the criminal himself to civil society, but must in all cases be imposed only because
the individual on whom it is inflicted has committed a crime. For one man ought never to be
dealt with merely as a means of subservient to the purpose of another, not be mixed up with the
subjects of Real Rights (i.e. goods or property). Against such treatment his inborn personality
has a right to protect him , even although he may be condemned to loose his civil personality. He
must first be found guilty and punishable, before there can be any thought of drawing from his
punishment any benefit for himself or his fellow citizens.

Incapacitation
A primary utilitarian purpose for punishment involves various actions designed to decrease the
physical capacity of a person to commit criminal or deviant acts. This principle of incapacitation
focuses on the elimination of individuals’ opportunity for crime and deviance through different
types of physical restraints on their actions. The conditions of confinement may be so deplorable
that they reduce the offender’s subsequent desire to engage in misconduct, but such a deterrent
effect is not a necessary component of incapacitation in its pure and earliest form. A plethora of
devices, techniques, and structures have been used throughout history as means for
incapacitation. The early tribal practices of banishment to the wilderness, the English system of
“transportation” of convicts to other colonies in the seventeenth and eighteenth centuries, the
exile of citizens in ancient Greek society, and political exile in more modern times are examples
of incapacitated sanctions because they involve the physical removal of persons from their
former communities, thereby restricting their physical opportunity for misconduct in the original
setting. The stocks and pillory in English history and Colonial America were devices used for
both public ridicule and incapacitation.
The function of incapacitation may also be served by other types of legal and extra legal
restrictions on one’s behaviour. Other legal forms of incapacitation involving civil or
administrative decrees include court-ordered injunctions and restraint-of-trade agreements,
restraining orders in domestic violence cases, revocations of licenses, foreclosures, and the
passage of certification requirements to perform particular tasks (e.g., college degree
requirements for teaching, passing medical board and bar exams for practicing medicine or law).
Many of these actions are economic sanctions in that they carry financial consequences for those
involved, but these civil and administrative rules can also be seen as incapacitated in that they
place physical restrictions on one’s possible actions. The most widely known type of
incapacitation involves some form of incarceration, or what others have termed “penal bondage.”
Aside from their incapacitated effect on restricting immediate criminal opportunities, penal
bondage of criminals, vagrants, debtors, social misfits, and other disadvantaged groups across
time periods and geographical contexts has often included a component of forced labour (e.g.,
public works projects, forced servitude in military campaigns) as a condition of confinement.
Physical structures for incapacitation may have different purposes or functions besides the
physical restraint of the body. These places of confinement are described across time and space

in context-specific terms like towers, workhouses, jails, prisons, correctional or treatment
facilities, cottages, and mental institutions. The specific language used for descriptive purposes
also signifies their functions beyond physical incapacitation. During the last half century, several
new forms of incapacitation have emerged. For example, shock incarceration programs involve
short-term incarceration of juvenile offenders to show them the pains of imprisonment and scare
them into a future life of conformity. Another variant of incapacitation, intensive-supervision
probation (ISP), leaves adjudicated criminals in their community but under the watchful eye of
probation officers or other legal authorities.
Although research suggests that a small pool of people commits the predominant share of violent
and property crime, efforts to successfully predict these high-risk offenders suffer from
numerous ethical and practical problems, including high rates of both “false positives” (i.e.,
falsely labelling someone as a high-risk offender)and “false negatives” (i.e., releasing high-risk
offenders because they were erroneously characterized as low-risk).
Contrary to early historical patterns of incapacitation that emphasized the reduction of the
physical opportunity for crime and deviance, modern versions of this philosophy are more
“forward-looking” in terms of focusing on the utility of punishments for changing offenders’
criminal motivations once they are no longer physically restrained from committing deviance. In
this way, incapacitation is united with other utilitarian philosophies for punishment. Different
types of incapacitated sanctions may serve as the initial framework for establishing successful
programs of deterrence and rehabilitation.
Deterrence
The doctrine of deterrence asks a fundamental question about the relationship between sanctions
and human behaviour: Are legal and extra legal sanctions effective in reducing deviance and
achieving conformity? Punishment is said to have a deterrent effect when the fear or actual
imposition of punishment leads to conformity. Specifically, punishments have the greatest
potential for deterring misconduct when they are severe, certain, and swift in their application.
Punishments are also widely assumed to be most effective for instrumental conduct and for
potential offenders who have low commitment to deviance as a livelihood (e.g., the person is not
a professional criminal) The deterrent effect of a particular type of punishment depends upon
several factors. These are:
(1) the social structure and value system under consideration

(2) the particular population in question
(3) the type of law being upheld
(4) the form and magnitude of the prescribed penalty
(5) the certainty of apprehension and punishment, and
(6) the individual’s knowledge of the law as well as the prescribed punishment, and his
definition of the situation relative to these factors
Deterrence is based on a rational conception of human behaviour in which individuals freely
choose between alternative courses of action to maximize pleasure and minimize pain. From this
classical perspective on crime and punishment, criminal solutions to problems become an
unattractive option when the costs of this conduct exceed its expected benefit. Swift, certain, and
severe sanctions are costs that are assumed to impede the likelihood of engaging in deviant
behaviour. From a deterrence standpoint, any type of punishment (e.g., monetary, informal,
incapacitative, corporal) has a potential deterrent effect as long as it is perceived as a severe,
certain, and swift sanction.
The research literature on the effectiveness of criminal punishments outlines the four major types
of deterrence, which include the following:
 Specific deterrence involves the effectiveness of punishment on that particular individual’s
future behaviour. Recidivism rates (e.g., rates of repeat offending among prior offenders) are
often used to measure the specific deterrent value of punishments.
 General deterrence asks whether the punishment of particular offenders deters other people from
committing deviance. A comparison of crime rates over time or across jurisdictions is typically
used to ascertain the general deterrent value of punishment.
 Marginal deterrence focuses on the relative effectiveness of different types of punishments as
either general or specific deterrents. For example, if recidivism rates for drunk drivers are higher
for those who receive monetary fines than those who received jail time, jail time would be rated
higher in its marginal deterrent value as a specific deterrent for drunk driving. Similarly, debates
about capital punishment often focus on the marginal deterrent value of life imprisonment
compared to the death penalty as a general deterrent for murder.
 Partial deterrence refers to situations in which the threat of sanction has some deterrent value
even when the sanction threats do not lead to law abiding behaviour. For example, if a thief
picked or “lifted” someone’s wallet rather than robbing them at gunpoint (because the thief was
fearful of the more serious penalty for committing an armed robbery), the thief would be treated
as a “successful” case of partial deterrence.
When the philosophy of deterrence is used in the context of penal reform, it is often as a
justification for increasing the severity of sanctions, particularly in Western developed countries.
Legislative responses to terrorist attacks, drug trafficking, child abductions, etc., have been
directed primarily at increasing the severity and/or duration of punishments. Although these
greater punitive measures may serve to pacify widespread public demands to “get tough” on
crime, the specific and general deterrent effect of such efforts is probably limited without

attention to the other necessary conditions for effective deterrence (i.e., high certainty and high
celerity of punishments).
Empirical efforts to assess the effectiveness of deterrence are limited by several basic factors.
First, persons may abide by laws or desist in deviant behaviour for a variety of reasons other than
the looming threat or fear of legal sanctions. Some of these non deterrence constraints on
behaviour include one’s moral/ethical principles, religious beliefs, physical inability to commit
the deviant act, and lack of opportunity. Second, neither swift nor certain punishment exists in
most legal systems in the contemporary world. The majority of criminal offenses are typically
unknown to the legal authorities and, even among the known offenses, only a small proportion
result in an arrest and conviction. Third, the severity of punishment actually received by
offenders is often far less than mandated by law, due to the operation of such factors as plea
bargaining, charge reductions, etc.
Rehabilitation
Although it may seem contradictory or at least somewhat odd to assert that we punish for the
treatment and reform of offenders, this basic principle underlies the rehabilitation purpose of
punishment. The ultimate goal of rehabilitation is to restore a convicted offender to a
constructive place in society through some combination of treatment, education, and training.
The salience of rehabilitation as a punishment philosophy is indicated by the contemporary
jargon of “correctional facilities,” “reformatories,” and “therapeutic community” now used to
describe jails, prisons, and other institutions of incapacitation. The link between places of
incapacitation and reform is established throughout much of written history. The earliest forms
of penal confinement in dungeons, towers, caves, and other dark and dreary places were largely
incapacitative in their primary function, but some degree of moral and spiritual enlightenment
was expected of those condemned to long periods of solitary confinement.
This idea of restraint to reform is evident within the context of religious penance in Judeo–
Christian practices in Western Europe and the British colonies in North America and elsewhere.
It is also manifested in U.S. history in the early development of reformatories and penitentiaries.
These large-scale incarceration structures punished misguided youth and criminals by isolating
them so they could reflect on their deviant actions, repent, and subsequently reform their
behaviour. Confinement and reflection for spiritual reform are also of central importance in the
religious principles found in Hinduism and Buddhism.

In contrast to retribution that emphasizes uniform punishments based on the gravity of the
misconduct, rehabilitation focuses on the particular characteristics of individual offenders that
require treatment and intervention. This individualized treatment approach is logically consistent
with indeterminate sentencing structures that give judges enormous discretion to tailor
punishments for the greatest good to the individual offender and provide parole boards with
equally high discretion to release or retain offenders for future treatment. Through the
application of current theories of human behaviour and the latest therapeutic techniques for
behavioural modification, rehabilitation experienced growing acceptance in many countries
throughout much of the twentieth century.
National fiscal restraints, declines in correctional budgets for program development, high public
outcry for more severe and longer prison sentences, and a growing crime-control political
ideology that focuses on suppression of criminal behaviour rather than its early prevention are
current conditions in Western societies that are largely antithetical to the ideas of treatment and
rehabilitation.
Restoration
One of the most recent goals of punishment derives from the principles of restoration. As an
alternative to other punishment philosophies (e.g., retribution, incapacitation, rehabilitation),
restorative justice fundamentally challenges our way of thinking about crime and justice. The
global victims’ rights movement is a relatively new phenomenon, but, the general roots of
restorative justice can be traced back to the early legal systems of Western Europe, ancient
Hebrew justice, and precolonial African societies.
Restorative justice literally involves the process of returning to their previous condition all
parties involved in or affected by the original misconduct, including victims, offenders, the
community, and even possibly the government. Under this punishment philosophy, the offender
takes full responsibility for the wrongdoing and initiates restitution to the victim. The victim and
offender are brought together to develop a mutually beneficial program that helps the victim in
the recovery process and provides the offender a means of reducing their risks of re-offending.
The theory of reintegrative shaming developed by John Braithwaite is based on the principles of
restorative justice. Offenders take personal responsibility for their actions and condemnation is
focused on the deviant act, rather than the offender, and its impact on the victim and the
community. Both the offender and the community need to be reintegrated as a result of the harm

caused by the criminal behaviour. Community mediation groups, neighbourhood councils, local
support groups, and victim–offender conferences are the primary means of achieving these
restorative efforts. The principles of restorative justice have been applied to the study of both
criminal and civil sanctions. For example, the institutionalized practice of “written apology” and
“letter of forgiveness” in the Japanese criminal justice system is designed to express remorse and
make restitution. By accepting the apology, the victim forgives the offender. In all cases of
restorative justice, the goal is to restore both the individual parties and their community’s sense
of wholeness. It stresses the harm caused to victims of crime and requires offenders to engage in
financial restitution and community service to compensate the victim and the community and to
‘make them whole once again’.
Kant argued that, even if no possible advantage can be found in punishing a given criminal, the
punishment must nonetheless be imposed. To illustrate the categorical nature of this imperative,
he constructed his famous example: “Even if a civil society resolved to dissolve itself with the
consent of all its members- as might be supposed in the case of a People inhabiting an island
resolving to separate and scatter themselves throughout the whole world- the last murderer lying
in the prison ought to be executed before the resolution was carried out. This ought to be done in
order that everyone may realize the desert of his deeds and that guilt may not remain upon the
people; for otherwise they might all be regarded as participators in the murder as a public
violation of justice”.
Thus, it is clear that no theory of punishment can achieve the real purpose of punishment solely.
Caldwell observes in this regard: “Punishment is an art which involves the balancing of
retribution, deterrence and reformation in terms not only of the court and the offender but also of
the circumstances in which it takes place and in the balancing of these purposes of punishments,
first one and then the other, receives emphasis as the accompanying conditions change”.
3. Death Sentence
Death Penalty
Capital offences in most time periods and places have included both acts that are considered
Mala en se and acts that are Mala Prohibita. Mala en se crimes are wrong because of their
intrinsic evil nature whereas Mala Prohibita crimes are wrong because some political authority
has defined them as illegal. Capital punishment is the execution of a perpetrator for committing a

heinous crime, and it is a hotly debated topic in the present scenario. A dispassionate analysis of
criminological jurisprudence would reveal that capital punishment is justified only in extreme
cases in which a high degree of culpability is involved causing grave danger to society. Capital
punishment is awarded for capital offences involving planned murder, multiple murders, rape
and murder etc. Throughout history, civilizations have used capital punishment as a means of
keeping social order as well as retribution. Many cultures throughout the ages have used capital
punishment for grave offences, ranging from theft to murder. Many ancient societies accepted
the idea that certain crimes deserved capital punishment.
"The Code of Hammurabi a legal document from ancient Babylonia (in modern-day Iraq),
contained the first known death penalty laws. Under the code, written in the 1700s B.C., twenty-
five crimes were punishable by death. These crimes included adultery (cheating on a wife or
husband) and helping slaves escape. Murder was not one of the twenty-five crimes." Ancient
Roman and Mosaic Law authorized the thought of retribution, they believed in the rule of “an
eye for an eye and a tooth for a tooth”, in the same way, the ancient Egyptians, Assyrians and
Greeks all executed citizens for a variety of crimes. The most prominent people executed are
Socrates and Jesus.
In England, during the reigns of King Canute and William the Conqueror the death penalty was
not used. Later, Britain reinstated the death penalty and brought it to the American colonies.
Most of the death sentences involved torture, such as burning at the stake, breaking on the wheel,
slow strangulation and many more severe punishments, but as humanitarian movement grew in
strength and the intensity of the punishments by then, have reduced. At present the common
modes of execution of death sentence, which are prevailing in the different parts of the world are,
electrocution, guillotine, shooting, gas chamber, hanging and lethal injection.
TABLE: PROVISIONS/LAWS PROVIDING DEATH PENALTY
Provisions under Nature of Offense

the Indian Penal
Code/Other Laws
Section 120B IPC Being a party to a criminal conspiracy to commit a capital offense
Section 121 IPC Waging, or attempting to wage war, or abetting waging of war,
against the Government of India
Section 132 IPC A betting a mutiny in the armed forces (if a mutiny occurs as a
result), engaging in mutiny

Section 194 IPC Giving or fabricating false evidence with intent to procure a
conviction of a capital offense
Section 302 IPC Murder
Section 303 IPC Punishment for Murder by Life Convict
Section 305 IPC Abetting the suicide of a minor, mentally ill person, or intoxicated
person
Section 364A IPC Kidnapping, in the course of which the victim was held for ransom
or other coercive purposes.
Section 396 IPC Banditry with murder - in cases where a group of five or more
individuals commit banditry and one of them commits murder in the
course of that crime, all members of the group are liable for the
death penalty.
376A of IPC and Rape if the perpetrator inflicts injuries that result in the victim's
Criminal Law death or incapacitation in a persistent vegetative state, or is a repeat
(Amendment) Act, offender
2013
Part II Section 4 of Aiding or abetting an act of Sati
Prevention of Sati
Act
Bombay Prohibition In Gujarat only - Manufacture and sale of poisoned alcohol which
(Gujarat results in death(s)
Amendment) Bill,
2009
Capital Offences in other laws
Sl.
Section Number Description
No.
1. Sections 34, 37, and 38(1) The Air Force Act, 1950
The Andhra Pradesh Control of Organised Crime Act,
2. Section 3(1)(i)
2001
3. Section 27(3) The Arms Act, 1959 (repealed)
4. Sections 34, 37, and 38(1) The Army Act, 1950
Sections 21, 24, 25(1)(a), and
5. The Assam Rifles Act, 2006
55
6. Section 65A(2) The Bombay Prohibition (Gujarat Amendment) Act, 2009
7. The Border Security Force Act, 1968
46
8. Sections 17 and 49 The Coast Guard Act, 1978
9. Section 4(1) The Commission of Sati (Prevention) Act, 1987
10. Section 5 The Defence of India Act, 1971
11. Section 3 The Geneva Conventions Act, 1960
12. Section 3 (b) The Explosive Substances Act, 1908
13. Sections 16, 19, 20(1)(a), and The Indo-Tibetan Border Police Force Act, 1992

49
14. Section 3(1)(i) The Karnataka Control of Organised Crime Act, 2000
15. Section 3(1)(i) The Maharashtra Control of Organised Crime Act, 1999
The Narcotics Drugs and Psychotropic Substances Act,
16. Section 31A(1)
1985
Sections 34, 35, 36, 37, 38,
17. 39, 43, 44, 49(2)(a), 56(2), The Navy Act, 1957
and 59
The Petroleum and Minerals Pipelines (Acquisition of
18. Section 15(4)
rights of user in land) Act, 1962
19. The Sashastra Seema Bal Act, 2007
49
The Scheduled Castes and Scheduled Tribes (Prevention
20. Section 3(2)(i)
of Atrocities) Act, 1989
The Suppression of Unlawful Acts against Safety of
21. Section 3(1)(i) Maritime Navigation and Fixed Platforms on Continental
Shelf Act, 2002;
Sections 10(b)(i) and Section
22. The Unlawful Activities Prevention Act, 1967
16(1)(a)
Source: India. Law Commission of India, Report no.262 on Death Penalty, August 2015,
pp.31-32
Death Sentence has been used as an effective weapon of retributive justice for centuries. The
justifications argued that it is lawful to forfeit the life of a person who takes away another life. A
person who kills another must be eliminated from the society and therefore, fully merits his
execution, thus the motive for death penalty may include vengeance, which is compensatory and
reparatory satisfaction for an injured party, group or society. The fear of being condemned to
death is perhaps the greatest deterrent, which keeps a person away from criminality. The topic of
capital punishment is difficult to discuss as there are varied opinions on the issue.
Capital punishment in the past was intended to inflict pain and suffering and the same time to be
a public spectacle delivering a moral message through a dreadful example of the cost of sin and
crime. To take but one example: David Johnson explains that in Japan in the period up to 1867,
when most crimes were punished by death, 'execution methods ranged from boiling, burning and
crucifixion to several levels of beheading ... Prior to execution, condemned criminals were
paraded through the streets on horseback. Afterwards, bodies and heads were displayed on
platforms or carried through the streets’.
Because it results in the death of the accused, capital punishment is the ultimate corporal

sanction. The wide variety of methods of execution used over time and place can be
distinguished according to whether they involve instant or slow death. Beheadings, hangings,
and strangulations have been identified as the most common means for merciful or instant death.
The use of firing squads, gas chambers, and lethal injections are modern forms of instant death.
In contrast, lethal methods associated with a slow or lingering death included the acts of burning,
boiling, stoning, crucifixion, draw and quartering, and being “broken on the wheel.”
Public executions have been condemned by the United Nations Human Rights Committee as
'incompatible with human dignity. In Resolution 2004/67 the Commission on Human Rights
urged states to ensure that where capital punishment occurs it shall not be carried out in public or
in any other degrading manner. Yet executions have taken place in public, or been broadcast on
television, in at least 19 countries or territories since 1995. To take a few recent examples: In
Uganda military executions took place in 2002 in the presence of about 1,000 people and again
in 2003 before 200 people.
In Kuwait, in January and May 2004, the bodies of prisoners executed by hanging were
afterwards publicly displayed and four men were hanged in public in Kuwait City in October
2005 for trafficking in drugs. A public execution for murder took place by firing squad in
Equatorial Guinea in April 2006, and in Vietnam, in April 2004, a woman was executed by firing
squad 'in front of hundreds of spectators' for smuggling heroin. In Saudi Arabia, where public
executions by beheading persist, four Sri Lankans were executed in February 2007 and
subsequently their bodies were publicly displayed. The most important amongst these all is the
execution of Saddam Husain which was broadcasted over the television and was available on the
internet over the social networking sites and YouTube etc.
There remains much dispute about the proper role of doctors in the administration of the death
penalty. In India the Supreme Court ruled in January 1995 that doctors employed in prisons had
an obligation to participate in hangings by examining the body every few minutes after the drop
to ensure that death had occurred. In strong contrast, the World Medical Association at its fifty-
second meeting, held in Edinburgh in 2000, 'Resolved, that it is unethical for physicians to
participate in capital punishment, in any way, or during any step of the execution process.
Views on Retention or Abolition of Death Penalty
Abolitionist of capital punishment argues that it leads to miscarriage of justice and the life
imprisonment is a better substitute. They also argue that it violates the right to life of the

criminal. The legal imposition in the society involves long and unavoidable delays. Retentionist
argues that as it is served when someone is put to death for committing murder with aggravating
circumstances, capital punishment removes criminals from the society and reduces the crime in
long run.
It is to be stated that some of the arguments on both sides have substance and carry weight: Prof.
H.L.A. Hart sums up the position in the following words: "There are indeed ways of defending
and criticizing death penalty which are quite independent of the utilitarian position and of the
questions of fact which the utilitarian will consider as crucial. For some people the death penalty
is ruled out entirely as something absolutely evil which, like torture, should ' never be used
however many lives it might save. Those who take this view find that they are sometimes met by
the counter assertion that the death penalty is something which morality actually demands, a
uniquely appropriate means of retribution or 'reprobation' for the worst of crimes, even if its use
adds nothing to the protection of human life." However, there has been some proximity between
these two views on some points.
The United Nations Committee that studied capital punishment found that 'it is generally agreed
between the retentionist and abolitionists, whatever their opinion about the validity of
comparative studies of deterrence, that the data’s which now exist show no correlation between
the existence of capital punishment and lower rates of crime.
Eight Objections to Death Penalty: The American Civil Liberties (ACLU) Union believes the
death penalty inherently violates the constitutional ban against cruel and unusual punishment and
the guarantees of due process of law and of equal protection under the law.
Arguments against the retention of the Capital Punishment:
1. The Capital Punishment is neither deterrent nor has the retributive value as witnessed by
the history.
2. It is uncivilized, indecent, barbaric, cruel and revengeful and is stigma on the society.
3. It is inhuman, if one cannot give life how is it justified to take it.
4. If injustice happens with an innocent it cant be corrected.
5. It serves no economical gains and is immoral too.
6. It leaves no room for reformation of the guilty neither he gets the opportunity thereof
Arguments for retention of the Capital Punishment
1. All the social contracts theories have sanctioned rights of the State to penalize the criminal in the
interest of the administration of justice and same a necessary effective tool.
2. Those offenders who are incorrigible and dangerous should be eliminated from the society in as
much as they act heinously and have no regards for Human Values.

3. It has a deterrent and retributive effect which is the main aim of the administration of justice, as
is substitute of private vengeance and revenge and to protect the society, the sentence is must.
4. The possibility of death sentence being wrongly used and abused can be eliminated by good laws
and proper executions.
5. It is a sort of right of private defence to the society against the criminal.
6. It is constitutional as held by the judiciary.
7. It serves to protect the life and liberty of the individuals of the society.
8. It is economical and less cruel than keeping the one under imprisonment for life, leaving him to
die at an indefinite time, with no hope to come out of prison.
9. It prevents overcrowding of prison. It has a great value in satisfying the victims of the crime.
At the initial stage, the provisions under the Indian Penal Code, 1860 prescribed death as a rule
and life as an exception in case of a murder. But slowly with the passage of time the trend tilted
towards liberalization of the interpretation and provided that if death sentence is to be awarded
reasons for the same were to be mentioned and now the courts try to find out the special reasons
while awarding death sentence. It is in the rarest of the rare case, that death sentence should be
awarded. But the million dollar question still remains to be answered - what are those cases
which come under the category of rarest of rare cases. The judges of the apex court and other
courts subordinate to the apex court have not been able to specify the category rarest of rare
cases". Thus there is inconsistency in the judgments delivered by the courts including the apex
court while dealing with cases that carry death sentence or life imprisonment.
In India also a serious debate on the abolition of death sentence has been going on for quite a
long time. Even during the British Rule, the Indians made a serious attempt to procure abolition
of capital punishment. In the year 1931, Gaya Prasad Singh introduced a bill for the abolition of
capital punishment in the Legislative Assembly, but a motion for circulation of the Bill was
defeated after it was opposed by the government. After India became independent, a similar Bill
was the introduced in the Lok Sabha by Mukand Lal Agarwal, a sitting Member of Parliament, in
the year 1956, but the same was rejected by the Government. In the year 1958 a resolution for
abolition was moved in Rajya Sabha by Prithvi Raj Kapoor. The same was withdrawn after a
debate in the Rajya Sabha. On this Prithvi Raj said: "The ripples are created and it is in the air."
Its purpose has been served, said Kapoor. In the year 1961, a further resolution was moved by
Savitri Nigam, another Rajya Sabha member. But the same was negatived after debate.
In the year 1962, another resolution of abolition of capital punishment was moved in the Lok
Sabha by Raghunath Singh, a sitting member of Parliament. The said resolution received a
serious attention but was withdrawn on the undertaking given by the Government that a

transcript of the whole debate would be forwarded to the Law Commission for consideration in
the context of its review of the Indian Penal Code, 1860 and the Criminal Procedure Code,
1973. The Law Commission in the year 1967 submitted a separate report on capital punishment
to the Government. The Report hence favoured the retention. The 35th Law Commission
Report’s recommendations stated:
It is difficult to rule out the validity of, or the strength behind, many of the arguments for
abolition. Nor does the Commission treat lightly the argument of irrevocability of the sentence of
death, the need for a modern approach, the severity of capital punishment, and the strong feeling
shown by certain sections of public opinion, in stressing deeper questions of human values.
Having regard, however, to the conditions in India, to the variety of the social upbringing of its
inhabitants, to the disparity in the level of morality and education in the country, to the vastness
of its area, to the diversity of its population, and to the paramount need for maintaining law and
order in the country at the present juncture, India cannot risk the experiment of abolition of
capital punishment. Arguments which would be valid in respect of one area of the world may not
hold good in respect of another area in this context. Similarly, even if abolition in some parts of
India may not make a material difference, it may be fraught with serious consequences in other
parts. On a consideration of all the issues involved, the Commission is of the opinion that capital
punishment should be retained in the present state of the country.
The international community’s consensus against the death penalty is growing; India thus is
becoming increasingly isolated in its commitment to the death penalty. India has complied with
the International Human Rights Instruments such as the International Covenant Civil and
Political Rights but has not followed with abolishing the death penalty as so many other nations
have done. In December 2007, India voted against a United Nations General Assembly
resolution calling for a moratorium on the death penalty. In November 2012, India again upheld
its stance on capital punishment by voting against the UN General Assembly draft resolution
seeking to ban death penalty. On 31 August 2015, the Law Commission of India submitted
262nd Report to the government which recommended the abolition of capital punishment for all
crimes in India, excepting the crime of waging war against the nation or for terrorism-related
offences. The report cited several factors to justify abolishing the death penalty, including its
abolition by 140 other nations, its arbitrary and flawed application and its lack of any proven
deterring effect on criminals.
Code of Criminal Procedure and Death Sentence
- It is only the Sessions Court who alone can declare the death sentence as per the set of offences
enlisted in the Indian Penal Code, 1860 i.e. the Judicial Magistrate below the rank of Sessions
Judge has no authority to impose a death sentence.
- Prior to 1955, Section 367(5) of the Code of Criminal Procedure, 1898 insisted upon the Court
to state its reasons if the sentence of death was not imposed in case of murder. But in 1955 Sub-

Section (5) of Section 367 was deleted. The deletion of Sub-Section (5) of Section 367 meant
that normally the sentence of life imprisonment should be the rule and death sentence should be
imposed only if there were aggravating circumstances.
- In the present Code of Criminal Procedure it is provided in Section 354 that the judge has to give
special reasons for imposition of death sentence. Also, it is mandatory for the judge to allow
hearing, for the punishment imposed.
- Section 366 of the Code of Criminal Procedure provides that when a Sessions Court passes a
sentence of death, it will not be executed until the High Court confirms the same.
Constitutionality and Death Sentence
The Constitutionality aspect of Death Sentence will be discussed hereafter with the help of
principles held in Case Laws:
Serial Case and Citation Held

No
1. Jagmohan Singh v. The first challenge to the constitutionality of the death
State of U. P penalty in India came in the 1973. he petitioners argued
(1973) 1 SCC 20 that the death penalty violated Articles 14, 19 and 21 of
the Constitution of India. It was argued that since the death
sentence extinguishes, along with life, all the freedoms
guaranteed under Article 19(1) (a) to (g), it was an
unreasonable denial of these freedoms and not in the
interests of the public. Further, the petitioners argued that
the discretion vested in judges in deciding to impose death
sentence was uncontrolled and unguided and violated
Article 14. Finally, it was contended because the
provisions of the law did not provide a procedure for the
consideration of circumstances crucial for making the
choice between capital punishment and imprisonment for
life, it violated Article 21. This case was decided before
the Code of Criminal Procedure was re-enacted in 1973,
making the death penalty an exceptional sentence. The
Supreme Court found that the death penalty was a
permissible punishment, and did not violate the
Constitution.
2. Ediga Anamma v. In commuting the death sentence to life imprisonment, the
State of Andhra Court observed the following: “In any scientific system
Pradesh which turns the focus, at the sentencing stage, not only on
(1974) 4 SCC 443. the crime but also the criminal, and seeks to personalise
the punishment so that the reformatory component is as
much operative as the deterrent element, it is essential that
facts of a social and personal nature, sometimes altogether
irrelevant if not injurious at the stage of fixing the guilt,
may have to be brought to the notice of the Court when the
actual sentence is determined.” the court also said, “a legal
policy on life or death cannot be left for ad hoc mood or

individual predilection and so we have sought to objectify
to the extent possible, abandoning retributive ruthlessness,
amending the deterrent creed and accenting the trend
against the extreme and irrevocable penalty of putting out
life”.
3. Rajendra Prasad v. The Court found itself confronting, not the
State of Uttar constitutionality of the death sentence, but that of
Pradesh sentencing discretion. The Court per majority (of two
1979) 3 SCC 646 judges) said, “special reasons necessary for imposing
death penalty must relate, not to the crime as such but to
the criminal”.
4. Bachan Singh v. The Court adopted the ‘rarest of rare’ guideline for the
State of Punjab, imposition of the death penalty, saying that reasons to
(1980) 2 SCC 684 impose or not impose the death penalty must include the
circumstances of the crime and the criminal. Justice
Bhagwati in his dissenting opinion found the death penalty
necessarily arbitrary, discriminatory and capricious. He
reasoned that “the death penalty in its actual operation is
discriminatory, for it strikes mostly against the poor and
deprived sections of the community and the rich and the
affluent usually escape, from its clutches. This
circumstance also adds to he arbitrary and capricious
nature of the death penalty and renders it unconstitutional
as being violative of Articles 14 and 21.”
5. Mithu v. State of The Supreme Court was confronted with the mandatory
Punjab sentence of death enacted in Section 303 of the IPC. The
(1983) 2 SCC 277. Court held that the mandatory death sentence was
unconstitutional, stating: “A standardized mandatory
sentence, and that too in the form of a sentence of death,
fails to take into account the facts and circumstances of
each particular case. It is those facts and circumstances
which constitute a safe guideline for determining the
question of sentence in each individual case”.
6. Deena v. Union of Rejecting a constitutional challenge to execution by

India hanging, held that while a prisoner cannot be subjected to
(1983) 2 SCC 277. barbarity, humiliation, torture or degradation before the
execution of the sentence, hanging did not involve these
either directly or indirectly.
7. Parmanand Katara The Court accepted that allowing the body to remain
v. Union of India hanging beyond the point of death – the Punjab Jail
1995) 3 SCC 248. Manual instructing that the body be kept hanging for half
an hour after death – was a violation of the dignity of the
person and hence unconstitutional.

8. T.V. Vatheeswaran The Court held that a delay in execution of sentence that
v. State of Tamil exceeded two years would be a violation of procedure
Nadu guaranteed by Article 21.
(1983) 2 SCC 68
9. Sher Singh v. State It was held that delay could be a ground for invoking
of Punjab Article 21, but that no hard and fast rule could be laid
1983) 2 SCC 344 down that delay would entitle a prisoner to quashing the
sentence of death.
10. Triveniben v. State The Court said, “the only delay which would be material
of Gujarat for consideration will be the delays in disposal of the
1989) 1 SCC 678 mercy petitions or delay occurring at the instance of the
Executive.”
11. Shatrughan This case also laid down guidelines for “safeguarding the
Chauhan v Union of interest of the death row convicts” which included
India. reaffirming the unconstitutionality of solitary or single cell
(2014) 3 SCC 1. confinement prior to rejection of the mercy petition by the
President, necessity of providing legal aid, and the need
for a 14- day period between the rejection of the mercy
petition and execution.
Shatrughan The Supreme Court has characterized the nature of mercy
Chauhan v. Union provisions (Articles”72 and 161) as constitutional duty
of India, (2014) 3 rather than privilege or a matter of grace.
SCC 1, at paras 98-
103
12. Vikram Singh v. The Supreme Court acknowledged that “punishments must
Union of India, be proportionate to the nature and gravity of the offences
(Criminal for which the same are prescribed” However, it held that
Appeal
No. 824 of 2013, “Section 364A cannot be dubbed as so outrageously
Supreme Court of disproportionate to the nature of the offence as to call for
India, decided on the same being declared unconstitutional” saying death
August 21, 2015) sentences would only be awarded in the rarest of rare
cases.
13. Epuru Sudhakar v. The exercise of power under Article 72 by the President
Govt. of A.P. and Article 161 by the Governor is subject to limited form
(2006) 8 SCC 161 of judicial review.
Source: India. Law Commission of India, Report no.262 on Death Penalty, August 2015
Alternative to Death Penalty
Section 53 of the Indian Penal Code, 1860 enumerates various kinds of punishments that can be
awarded to the offenders, the highest being the death penalty and the second being the sentence
of imprisonment for life. At present there is no sentence that can be awarded higher than

imprisonment for life and lower than death penalty. In USA a higher punishment called
“Imprisonment for life without commutation or remission” is one of the punishments. As death
penalty is harsh and irreversible the Supreme Court has held that death penalty should be
awarded only in the rarest of the rare cases, the committee considers that it is desirable to
prescribe a punishment higher than that of imprisonment for life and lower than death penalty.
Section 53 is suitably amended to include “Imprisonment for life without commutation or
remission” as one of the punishments. Wherever imprisonment for life is one of the penalties
prescribed under the Indian Penal Code, 1860 the following alternative punishment be added
namely “imprisonment for life without commutation or remission”. Wherever punishment of
imprisonment for life without commutation or remission is awarded, the State Governments
cannot commute or remit the sentence. Therefore, suitable amendment may be made to make it
clear that the State Governments cannot exercise power of remission or commutation when
sentence of “Imprisonment for life without remission or commutation” is awarded. This however
cannot affect the Power of Pardon etc. of the President and the Governor under Articles 72 and
161 of the Constitution of India, 1950 respectively.
Countries that seek to abolish the death penalty face the task of establishing viable alternatives
that sufficiently satisfy the demands of retribution while remaining proportionate to the gravity
of the crime; that appear not to greatly lessen any possible marginal deterrent effect; that
incapacitate those who continue to pose a genuine threat to public safety; and that provide a
humane environment with opportunities for the prisoner to be rehabilitated, or at least not made
more dangerous by the conditions of confinement.
In considering what should replace the death penalty they will, of course, need to bear in mind
that there is a difference between:
(i) providing a suitable penalty in cases where the executive reprieves or commutes a death
sentence;
(ii) replacing the death penalty for crimes of lesser seriousness than murder when the scope of
capital punishment is being retracted;
(iii) finding a replacement penalty for murder when a mandatory death sentence is abolished and the
courts are allowed discretion as to punishment; and
(iv) replacing capital punishment de jure at what is often the last cycle of the abolition process, when
executions have been reserved for a small number of the most egregious murders:

ECONOMICS-I (207)
UNIT-I
Definition:
Microeconomics (from Greek prefixmikro-meaning "small" and economics) is a branch
ofeconomics that studies the behavior of individual households and firms in making decisions on
the allocation of limited resources. Typically, it applies to markets where goods or services are
bought and sold. Microeconomics examines how these decisions and behaviors affect the supply
and demand for goods and services, which determines prices, and how prices, in turn, determine
the quantity supplied and quantity demanded of goods and services. This is in contrast to
macroeconomics, which involves the "sum total of economic activity, dealing with the issues of
growth, inflation, and unemployment." Microeconomics also deals with the effects of national
economic policies (such as changing taxation levels) on the aforementioned aspects of the
economy. Particularly in the wake of the Lucas critique, much of modern macroeconomic theory
has been built upon 'micro foundations'—i.e. based upon basic assumptions about micro-level
behavior.
One of the goals of microeconomics is to analyze market mechanisms that establish relative
prices amongst goods and services and allocation of limited resources amongst many alternative
uses. Microeconomics analyzes market failure, where markets fail to produce efficient results,
and describes the theoretical conditions needed for perfect competition. Significant fields of
study in microeconomics include general equilibrium, markets under asymmetric information,
choice under uncertainty and economic applications of game theory. Also considered is the
elasticity of products within the market system.
Wealth Definition:
The early economists like J.E. Cairnes, J.B.Say, and F.A.Walker have defined economics as a
science of wealth. Adam Smith, who is also regarded as father of economics, stated that
economics is a science concerned with the nature and causes of wealth of nations. That is,
economics deal with the question as to how to acquire more and more wealth by a nation.
J.S.Mill opined that it is the practical science dealing with the production and distribution of
wealth. The American economist F.A.Walker says that economics is that body of knowledge,
which relates to wealth. Thus, all these definitions relate to wealth.

However, the above definitions have been criticized on various grounds. As a result, economists
like Marshall, Robbins and Samuelson have put forward more comprehensive and scientific
definitions. Emphasis has been gradually shifted from wealth to man. As Marshall puts, it is “on
the one side a study of wealth; and on the other, and more important side, a part of the study of
man.”
Welfare Definition:
According to Marshall, economics not only analysis the aspect of how to acquire wealth but also
how to utilize this wealth for obtaining material gains of human life. In fact, wealth has no
meaning in itself unless it is used to purchase all those things which are required for our
sustenance as well as for the comforts necessary for life. Marshall, thus, opined that wealth is a
means to achieve certain ends. In other words, economics is not a science of wealth but a science
of man primarily. It may be called as the science which studies human welfare. Economics is
concerned with those activities, which relates to wealth not for its own sake, but for the sake of
human welfare that it promotes. According to Canon, “The aim of political economy is the
explanation of the general causes on which the material welfare of human beings depends.”
Marshall in his book, “Principles of Economics”, published in 1890, describes economics as,
“the study of mankind in the ordinary business of life; it examines that part of the individual and
social action which is most closely connected with the attainment and with the use of the
material requisites of well being”.
On examining the Marshall’s definition, we find that he has put emphasis on the following four
points:
(a) Economics is not only the study of wealth but also the study of human beings. Wealth is
required for promoting human welfare.
(b) Economics deals with ordinary men who are influenced by all natural instincts such as love,
affection and fellow feelings and not merely motivated by the desire of acquiring maximum
wealth for its own sake. Wealth in itself is meaningless unless it is utilized for obtaining material
things of life.

(c) Economics is a social science. It does not study isolated individuals but all individuals living
in a society. Its aim is to contribute solutions to many social problems.
(d) Economics only studies ‘material requisites of well being’. That is, it studies the causes of
material gain or welfare. It ignores non-material aspects of human life.
This definition has also been criticized on the ground that it only confines its study to the
material welfare. Non-material aspects of human life are not taken into consideration. Further, as
Robbins said the science of economics studies several activities, that hardly promotes welfare.
Scarcity Definition:
Lionel Robbins challenged the traditional view of the nature of economic science. His book,
“Nature and Significance of Economic Science”, published in 1932 gave a new idea of thinking
about what economics is. He called all the earlier definitions as classificatory and unscientific.
According to him, “Economics is the science which studies human behaviour as a
relationshipbetween ends and scarce means which have alternative uses.” This definition
focused itsattention on a particular aspect of human behaviour, that is, behavior associated with
the utilization of scarce resources to achieve unlimited ends (wants). Robbins definition, thus,
laid emphasis on the following points:
• ‘Ends’ are the wants, which every human being desires to satisfy. Want is an effective
desire for a thing, which can be satisfied by making an effort for obtaining it. We have
unlimited wants and as one want gets satisfied another arises. For instance, one may have
the desire to buy a car or a flat. Once the car or the flat is purchased, the person wishes to
buy a more spacious and designable car and the list of his wants does not stop here but
goes on one after another. As human wants are unlimited, we have to make a choice
between the most urgent want and less urgent wants. Thus the problem of choice arises.
That is why economics is also called as a science of choice. If wants had been limited,
they would have been satisfied and there would have been no economic problem.
(b) ‘Means ’or resources are limited. Means are required to be used for the satisfaction of
various wants. For instance, money is an important means to satisfy many of our wants. As
stated, means are scarce (short in supply in relation to demand) and as such these are to be used

Optimally. In other words, scarce or limited means/resources are to be economized. We should
not make waste of the limited resources but utilize them very judiciously to get the maximum
satisfaction.
(c) Robbins also said that, the scarce means have alternative uses. It means that a commodity or
resource can be put to different uses. Hence, the demand in the aggregate for that commodity or
resource is almost insatiable. For instance, if we have a hundred rupee note, we can use it either
to purchase a book or a fashionable clothe. We may use it in other unlimited ways as we like.
Let us now turn our attention to the definitions put forward by modern economists. J.M.Keynes
defined economics as the study of the management of scarce resources and of the determination
of income and employment in the economy. Thus his study centered on the causes of economic
fluctuations to see how economic stability could be established. According to F. Benham,
economics is, “a study of the factors affecting the size, distribution and stability of a country’s
national income.” Recently, economic growth and development has taken an important place in
the study of economics. Prof. Samuelson has given a growth oriented definition of economics.
According to him, economics is the study and use of scarce productive resources overtime and
distribute these for present and future consumption. In short, economics is a social science
concerned with the use of scarce resources in an optimum manner and in attainment of desired
level of income, output, employment and economic growth.
Methodology:
The Deductive Method:

Deduction Means reasoning or inference from the general to the particular or from the universal
to the individual. The deductive method derives new conclusions from fundamental assumptions
or from truth established by other methods. It involves the process of reasoning from certain laws
or principles, which are assumed to be true, to the analysis of facts.
Then inferences are drawn which are verified against observed facts. Bacon described deduction
as a “descending process” in which we proceed from a general principle to its consequences.
Mill characterised it as a priori method, while others called it abstract and analytical.
Deduction involves four steps: (1) Selecting the problem. (2) The formulation of assumptions on
the basis of which the problem is to be explored. (3) The formulation of hypothesis through the
process of logical reasoning whereby inferences are drawn. (4) Verifying the hypothesis. These

steps are discussed as under.
(1) Selecting the problem:
The problem which an investigator selects for enquiry must be stated clearly. It may be very
wide like poverty, unemployment, inflation, etc. or narrow relating to an industry. The narrower
the problem the better it would be to conduct the enquiry.
(2) Formulating Assumptions:
The next step in deduction is the framing of assumptions which are the basis of hypothesis. To be
fruitful for enquiry, the assumption must be general. In any economic enquiry, more than one set
of assumptions should be made in terms of which a hypothesis may be formulated.
(3) Formulating Hypothesis:
The next step is to formulate a hypothesis on the basis of logical reasoning whereby conclusions
are drawn from the propositions. This is done in two ways: First, through logical deduction. If
and because relationships (p) and (q) all exist, then this necessarily implies that relationship (r)
exists as well. Mathematics is mostly used in these methods of logical deduction.
(4) Testing and Verifying the Hypothesis:
The final step in the deductive method is to test and verify the hypothesis. For this purpose,
economists now use statistical and econometric methods. Verification consists in confirming
whether the hypothesis is in agreement with facts. A hypothesis is true or not can be verified by
observation and experiment. Since economics is concerned with human behaviour, there are
problems in making observation and testing a hypothesis.
For example, the hypothesis that firms always attempt to maximise profits, rests upon the
observation that some firms do behave in this way. This premise is based on a priori knowledge
which will continue to be accepted so long as conclusions deduced from it are consistent with the
facts. So the hypothesis stands verified. If the hypothesis is not confirmed, it can be argued that
the hypothesis was correct but the results are contradictory due to special circumstances.

The Inductive Method:
Induction “is the process of reasoning from a part to the whole, from particulars to generals or
from the individual to the universal.” Bacon described it as “an ascending process” in which
facts are collected, arranged and then general conclusions are drawn.
The inductive method was employed in economics by the German Historical School which
sought to develop economics wholly from historical research. The historical or inductive method
expects the economist to be primarily an economic historian who should first collect material,
draw generalizations, and verify the conclusions by applying them to subsequent events. For this,
it uses statistical methods. The Engel’s Law of Family Expenditure and the Malthusian Theory
of Population have been derived from inductive reasoning.
Scope:
Scope means the sphere of study. We have to consider what economics studies and what lies
beyond it. The scope of economics will be brought out by discussing the following.
a) Subject – matter of economics.
b) Economics is a social science
c) Whether Economics is a science or an art?
d) If Economics is science, whether it is positive science or a normative science?
a) Subject – matter of economics: Economics studies man’s life and work, not the whele of it,
but only one aspect of it. It does not study how a person is born, how he grows up and dies, how
human body is made up and functions, all these are concerned with biological sciences, Similarly
Economics is also not concerned with how a person thinks and the human organizations being
these are a matter of psychology and political science. Economics only tells us how a man
utilizes his limited resources for the satisfaction of his unlimited wants, a man has limited
amount of money and time, but his wants are unlimited. He must so spend the money and time
he has that he derives maximum satisfaction. This is the subject matter of Economics.
Economic Activity: It we look around, we see the farmer tilling his field, a worker is working in
factory, a Doctor attending the patients, a teacher teaching his students and so on. They are all
engaged in what is called “Economic Activity”. They earn money and purchase goods. Neither
money nor goods is an end in itself. They are needed for the satisfaction of human wants and to
promote human welfare.

To fulfill the wants a man is taking efforts. Efforts lead to satisfaction. Thus wants- Efforts-
Satisfaction sums up the subject matter of economics.
b) Economics is a social Science: In primitive society, the connection between wants efforts and
satisfaction is close and direct. But in a modern Society things are not so simple and straight.
Here man produces what he does not consume and consumes what he does not produce. When
he produces more, he has to sell the excess quantity. Similarly he has to buy a product which is
not produced by him. Thus the process of buying and selling which is called as Exchange comes
in between wants efforts and satisfaction.
Nowadays, most of the things we need are made in factories. To make them the worker gives his
labor, the land lord his land, the capitalist his capital, while the businessman organizes the work
of all these. They all get reward in money. The laborer earns wages, the landlord gets rent the
capitalist earns interest, while the entrepreneur’s (Businessman) reward is profit. Economics
studies how these income—wages, rent interest and profits-are determined. This process in
called “Distribution: This also comes in between efforts and satisfaction.
Thus we can say that the subject-matter of Economics is
1. Consumption- the satisfaction of wants.

2. Production- i.e. producing things, making an effort to satisfy our wants
3. Exchange- its mechanism, money, credit, banking etc.
4. Distribution – sharing of all that is produced in the country. In addition,
Economics also studies “Public Finance”
Macro Economics – When we study how income and employment is generated and how the
level of country’s income and employment is determined, at aggregated level, it is a matter of
macro-economics. Thus national income, output, employment, general price level economic
growth etc. are the subject matter of macro Economics.
Micro-Economic – When economics is studied at individual level i.e. consumer’s behavior,
producer’s behavior, and price theory etc it is a matter of micro-economics.
c) Economics, a Science or an Art? Broadly different subjects can be classified as science

subjects and Arts subjects, Science subjects groups includes physics, Chemistry, Biology etc
while Arts group includes History, civics, sociology Languages etc. Whether Economics is a
science or an art? Let us first understand what is terms ‘science’ and ‘arts’ really means.
A science is a systematized body of knowledge. A branch of knowledge becomes systematized
when relevant facts hove been collected and analyzed in a manner that we can trace the effects
back to their and project cases forward to their effects. In other words laws have been discovered

explaining facts, it becomes a science, In Economics also many laws and principles have been
discovered and hence it is treated as a science. An art lays down formulae to guide people who
want to achieve a certain aim. In this angle also Economics guides the people to achieve aims,
e.g. aim like removal poverty, more production etc. Thus Economics is an art also. In short
Economics is both science as well as art also.
d) Economics whether positive or normative science: A positive science explains ''why" and
"wherefore" of things. i.e. causes and effects and normative science on the other hand rightness
or wrongness of the things. In view of this, Economics is both a positive and. normative science.
It not only tells us why certain things happen, it also says whether it is right or wrong the thing to
happen. For example, in the world few people are very rich while the masses are very poor.
Economics should and can explain not only the causes of this unequal distribution of wealth, but
it should also say whether this is good or bad. It might well say that wealth ought to be fairly
distributed. Further it should suggest the methods of doing it.
Economic Problems:
Economic problem is the problem of how to make the best use of limited, or scarce, resources.
The economic problem exists because, although the needs and wants of people are endless, the
resources available to satisfy needs and wants are limited. Limited resources
Resources are limited in two essential ways:
1. Limited in physical quantity, as in the case of land, which has a finite quantity.
2. Limited in use, as in the case of labour and machinery, which can only be used for
one purpose at any one time.
Opportunity cost:
Choice and opportunity cost are two fundamental concepts in economics. Given that resources
are limited, producers and consumers have to make choices between competing alternatives. All
economic decisions involve making choices. Individuals must choose how best to use their skill
and effort, firms must choose how best to use their workers and machinery, and governments
must choose how best to use taxpayer's money.
In microeconomic theory, the opportunity cost of a choice is the value of the best alternative
forgone, in a situation in which a choice needs to be made between several mutually exclusive
alternatives given limited resources. Assuming the best choice is made, it is the "cost" incurred

by not enjoying the benefit that would be had by taking the second best choice available.
Economic Agents:
Aperson, company, or organization that has an influence on the economy by producing, buying,
or selling: The proper functioning of marketeconomy is influenced mostly by the stateinteraction
with the economicagent.
Economists like to refer to the people they study as economic agents. Economic agents come in
two basic varieties, producers and consumers, and we study their behavior in the Theory of the
Firm and the Theory of the Consumer
Economic Organizations:
The three major international economic organizations are the World Bank, the International
Monetary Fund (IMF), and the World Trade Organization (WTO). The WTO emerged out of the
General Agreement on Tariffs and Trade (GATT) in 1995; it is an arrangement across countries
that serves as a forum for negotiations on trading rules as well as a mechanism for dispute
settlements in trade issues. By contrast, the World Bank and IMF deal with their member
countries one at a time. They have little influence with industrial countries but can affect
developing countries during times of economic crisis and when those countries seek additional
foreign exchange resources. The origins and evolution of the three organizations are of
considerable interest. Perhaps even more important in light of the recent financial crises in
Mexico, East Asia, and a few other countries, are the questions that arise about the current and
future roles of the IMF and the World Bank.
These questions cover a broad set of issues. A healthy open trading system is crucial for the
progress of the international economy. It is particularly important in providing an environment in
which developing countries can successfully reform their policies and achieve rapid economic
growth and rising living standards for all. I have been particularly interested in the relationship
between preferential trading arrangements, such as the North American Free Trade Agreement
(NAFTA), and the WTO. The issue is simple: the WTO is based on the principle of open,
nondiscriminatory trade among its members, while preferential trading arrangements are, by
their nature, discriminatory. Under NAFTA, for example, goods originating in Mexico and
Canada are not subject to duties when they enter the United States, yet the same goods from

other countries are subject to U.S. duties. Assuring that preferential trading arrangements will not
block progress in multilateral liberalization is important, and I am now completing a paper in
which I analyze how much discrimination has been a factor under the first three years of
NAFTA.
My other major concern regarding international economic organizations is closely related to the
subject of developing countries' economic policy reforms. I want to know what the current and
future roles of the World Bank and IMF will be in economic policy reform in developing
countries. In the case of the World Bank, for example, to what extent will the Bank need to focus
its resources on poor countries and the support of economic policy reforms, as opposed to
tackling "new issues," such as gender and ethnicity (including treatment of minorities). Both the
Bank and the IMF have been criticized by many in light of the Asian financial crises of 1997 and
1998.
Marginalism:
One of the methodological principles of bourgeois political economy, based on the use of the
analysis of marginal values in research on economic laws and categories.
Marginal analysis in economic theory was introduced in the middle of the 19th century by A.
Cournot of France and J. von Thuenen and H. Gossen of Germany. Marginalism became
widespread in the last quarter of the 19th century, when bourgeois political economists initiated
an intensive search for new forms and methods of theoretical analysis and of capitalist
apologetics. Marginalism was used after about 1880 by the basic schools in bourgeois political
economy, such as the Austrian school and the mathematical school. A thorough substantiation of
marginalism was developed by J. B. Clark.
Marginalism views economics as the interaction of individual economies. In marginalism the

study of the laws of economic functioning is based on the analysis of the economic behavior of
the decision-maker during the production process and in the market. In this analysis quantitative
methods can be used. Mathematical analysis is particularly useful in studying the functional
connection between factors (for example, the dependence of demand for merchandise on the
price, the prices of other goods, and the income of the consumer; the effect of various ratios of
input of labor and capital on productivity). It is equally useful in deriving marginal functions

(marginal utility, demand elasticity, the marginal productivity of the factors of production). The
specific mathematical approach for marginal analysis was developed by the economists of the
mathematical school.
The shift from free competition to all-powerful monopolies, and also the growing rate of state-
monopoly regulation of the economy, placed before the bourgeois economists a number of
practical tasks that could not be implemented by a strict reliance on the subjectivistic
understanding of economic processes. Among the tasks were determining the use of economic-
mathematical models, analyzing and forecasting market trends, computing the coefficients of the
elasticity of demand, and optimalizing production inputs.
The characteristic feature of contemporary marginalists is the departure (although inconsistent)

from the orthodox subjectivist interpretation of the economic categories and the enhancement,
especially in the works of econometrists, of the role of formal-logical and empiric analysis. Thus,
several bourgeois economists and econometrists (H. Schultz, C. Cobb, and P. Douglas) were able
to develop mathematical methods of research into some problems of the economy, particularly
forecasting and analyzing demand and optimalizing production inputs. A number of provisions
and findings of the marginal-school economists had a definite influence on the development of a
number of fields of applied mathematics, including theory of games, linear programming, and
operations research. The basic marginalistic conceptions, such as marginal utility, marginal rate
of replacement, marginal productivity, and marginal capital efficiency, are used in the
contemporary bourgeois theories of demand, the firm, prices, and market equilibrium.
Time Value of Money:

The idea that money available at the present time is worth more than the same amount in the
future due to its potential earning capacity. This core principle of finance holds that, provided
money can earn interest, any amount of money is worth more the sooner it is received.
A time value of money calculation is a calculation that solves for one of several variables in a
financial problem.
In a typical case, the variables might be: a balance (the real or nominal value of a debt or a
financial asset in terms of monetary units), a periodic rate of interest, the number of periods, and

a series of cash flows. (In the case of a debt, cash flows are payments against principal and
interest; in the case of a financial asset, these are contributions to or withdrawals from the
balance.) More generally, the cash flows may not be periodic but may be specified individually.
Any of the variables may be the independent variable (the sought-for answer) in a given
problem. For example, one may know that: the interest is 0.5% per period (per month, say); the
number of periods is 60 (months); the initial balance (of the debt, in this case) is 25,000 units;
and the final balance is 0 units. The unknown variable may be the monthly payment that the
borrower must pay.
Differences between Macro and Microeconomics:
To an extent, both macro and microeconomics look at supply and demand, as well as price
levels. However, each field views these factors from a different standpoint. To better grasp the
meaning of macroeconomics, it might be helpful to think of it as a "top-down approach" toward
understanding the economy. Macroeconomics paints a picture of the economic conditions in a
particular country as a whole; however, knowledge of macroeconomic principles can be used to
develop an understanding of conditions for the individual players in the economy. Likewise,
microeconomics looks at the economy from the bottom up, but the information it gathers about
individual households and businesses is helpful in gaining an understanding of general economic
conditions. The difference of micro and macroeconomics may seem well-defined on the surface,
but these two categories of study can overlap in significant ways. In fact, no student of the
economy can truly comprehend the meaning of macroeconomics without comprehending the
meaning of microeconomics as well.
Positive v/s normative science:

It deals with thing as they “ought to be”. It has no objection to discussion the moral rightness or
wrongness of things. Economics is not only explaining facts as they are but also justifies them.
Positive Science deals with things as they are means “What is”. It explains their causes and
effect but it remain strictly neutral as regards ends, it refuses to pass moral judgments.
Both can be distinguish as follows:
Basis: Positive Normative

• Expresses What is : What ought to be
• Based on Cause & effect of facts : Ethics
• Deal with Actual or realistic situation : Idealistic situation
• Value judgment Are not given : Are given
Partial vs. General:

Microeconomic models are usually classified as partial and general equilibrium models. As a
layman, I understand that partial equilibrium focuses attention on a few economic variables to
find the equilibrium, while general eq. models capture a larger interaction.
Static vs. Dynamic: Microeconomic models are usually classified as partial and general
equilibrium models. As a layman, I understand that partial equilibrium focuses attention on a few
economic variables to find the equilibrium, while general eq. models capture a larger interaction.
Short run vs. Long run:

In microeconomics, the long run is the conceptual time period in which there are no fixed factors
of production, so that there are no constraints preventing changing the output level by changing
the capital stock or by entering or leaving an industry. The long run contrasts with the short run,
in which some factors are variable and others are fixed, constraining entry or exit from an
industry. In macroeconomics, the long run is the period when the general price level, contractual
wage rates, and expectations adjust fully to the state of the economy, in contrast to the short run
when these variables may not fully adjust.
Economic offences:
Economic and financial offences cover fraud, forgery and counterfeiting, offences against the
legislation governing cheques (in particular forgery or use of stolen cheques), forgery or use of
credit cards, undeclared employment, offences against companies (such as misuse of company
assets).
1. The process through which statutes are enacted by a legislative body that is established and
empowered to do so.
2. A particular bill or other piece of legislation
The legislation changed how we run our business as we must do our best to foresee possible
governmental and regulation changes
Relation between Economics and Law:

Law and economics or economic analysis of law is the application of economic theory
(specifically microeconomic theory) to the analysis of law. Economic concepts are used to
explain the effects of laws, to assess which legal rules are economically efficient, and to predict
which legal rules will be promulgated.

Positive law and economics
Positive law and economics uses economic analysis to predict the effects of various legal rules.
So, for example, a positive economic analysis of tort law would predict the effects of a strict
liability rule as opposed to the effects of a negligence rule. Positive law and economics has also
at times purported to explain the development of legal rules, for example the common law of
torts, in terms of their economic efficiency.
Normative law and economics
Normative law and economics goes one step further and makes policy recommendations based
on the economic consequences of various policies. The key concept for normative economic
analysis is efficiency, in particular, allocative efficiency.
A common concept of efficiency used by law and economics scholars is Pareto efficiency. A
legal rule is Pareto efficient if it could not be changed so as to make one person better off
without making another person worse off. A weaker conception of efficiency is Kaldor-Hicks
efficiency. A legal rule is Kaldor-Hicks efficient if it could be made Pareto efficient by some
parties compensating others as to offset their loss
UNIT – II
Demand:
Meaning: The demand for any commodity at a given price is the quantity of it which will
bebought per unit of time at that price.
Elements of Demand: According to the definition of demand here are three elements of
demandfor a commodity:-
(i) There should be a desire for a commodity.
(ii) The consumer should have money to fulfill that desire.
(iii) The consumer should be ready to spend money on that commodity.
Thus we can define demand as the desire to buy a commodity which is backed by sufficient
purchasing power and a willingness to spend.
Determinants of Demand:
There are many economic, social and political factors which greatly influence the demand for a
commodity. Some of these factors are discussed below:

(1) Price of the Commodity
(2) Price of Related Goods
(i) Complementary Goods
(ii) Substitute Goods
(3) Level of Income and Wealth of the Consumer
(i) Necessaries
(ii) Inferior goods
(iii) Luxuries
(4) Tastes and Preference
(5) Government Policy
(6) Other Factors:
(i) Size and Composition of Population
(ii) Distribution of Income and Wealth
(iii) Economic Fluctuations
Law of Demand:
The law of demand states that, other things being equal, the demand for good increases with a
decrease in price and decreases in demand with a increase in price. The term other things being
equal implies the prices of related goods, income of the consumers, their tastes and preferences
etc. remain constant.
Demand Schedule:
A Demand schedule is a list of the different quantities of a commodity which consumes

purchase at different period of time. It expresses the relation between different quantities of the
commodity demanded at different prices.
(i) Individual Demand Schedule: It is defined as the different quantities of a given commodity
which a consumer will buy at all possible prices.
(ii) Market Demand Schedule: Market demand schedule is defined as the quantities of a given

commodity which all consumers will buy at all possible prices at a given moment of time.
Demand Curve is simply a graphic representation of demand schedule. It expresses the

relationship between different quantities demanded at different possible prices of the given
commodity.
Individual Demand Curve:The graphic representation of Individual Demand is known

isIndividual Demand Curve.
Market Demand Curve: The graphic representation of market demand schedule is known
asMarket Demand Curve .Thus market demand curve is the one that represents total quantities of
a commodity demanded by all the consumers in the market at different prices. It is the horizontal
summation of the individual demand curves.
Demand Curve slopes downwards:
Reasons are:-
(i) Law of Diminishing Marginal Utility: The law of demand is based on the law of diminishing
marginal utility which states that as the consumer purchases more and more units of a
commodity, the satisfaction derived by him from each successive unit goes on decreasing. Hence
at a lesser price, he would purchase more. Being a rational human beings the consumer always
tries to maximize his satisfaction and does so equalizing the marginal utility of a commodity
with its price i.e. Mux = px. It means that now the consumer will buy additional units only when
the price falls
(ii) New Consumers:When the price of a commodity falls many consumers who could notbegin
to purchase the commodity e.g. suppose when price of a certain good ‘x’ was Rs. 50 market
demand was 60 units now when the price falls to Rs. 40, new consumers enter the market and the
overall market demand rises to 80 units.
(iii) Several Use of Commodity:There are many commodities which can be put to severaluses
e.g. coal, electricity etc. When the prices of such commodities go up, they will be used for
important purpose only and their demand will be limited. On the other hand, when their price fall
they are used for varied purpose and as a result their demand extends. Such inverse relation
between demand and price makes the demand curve slope downwards.

(iv) Income Effect : When price of a commodity changes, the real income of a consumer
alsoundergoes a changes. Hence real income means the consumer’s purchasing power. As the
price of a commodity falls the real income of a consumer goes up and he purchases more units of
a commodity eg. Suppose a consumer buys units wheat at a price Rs. 40/kg now, when the price
falls to Rs. 30/kg. His purchasing power or the real income increase which induces him to buy
more units of wheat.
(v) Substitution Effect : As the price of a commodity falls the consumer wants to substitute
thisgood for those good which now have become relatively expensive e.g. among the two
substitute goods tea and coffee, price of tea falls then consumer substitutes tea for coffee. This is
caused the ‘Substitution effect’ which makes the demand curve sloped downwards. In a nutshell,
with a fall in price more units are demanded partly due to income effect and partly due to
substitution effect. Both of these are jointly known as the ‘price effect’. Due to this negative
price effect the demand curve slopes downwards.
Exceptions to the Law of Demand:
Exceptions to the law of demand refer to such cases where the law of demand does not operate,
i.e., a positive relationship is established between price and quantity demanded.
• Giffen Goods: Sir Giffen made an interesting observation in 1845 during famine in
Ireland. When price of potatoes went up, poor people purchased more quantity of potatoes
instead of less quantity as expected from the law of demand. The reason was that between two
items of food consumption meat and potatoes- potatoes were still cheaper, with the result that the
poor families purchased more of potatoes and less of meat. This is known as Giffen effect which
is seen in cheap necessary foodstuffs. Again, the word ‘Giffen’ is not synonymous with
‘inferior’. It simply refers to those goods which have a positive relationship with price.
• Conspicuous Goods or Goods of Ostentation
• Conspicuous Necessities
• Future Expectations About Prices
• Change in Fashion

• Ignorance
• Emergency
Change in Demand:
(1) Movement along the Same Demand Curve : When due to change in price alone
demandchanges, it is expressed by different points on the same demand curve.
(i) Expansion of Demand: When with a fall in price, demand for a commodity rises (other things
being equal it is called expansion of demand. It is represented through the downward movement
along the demand curve.
(ii) Contraction of Demand: When with an increase in price, demand for a commodity falls
(other things being equal) It is called contraction of demand. It is represented by upward
movement along the demand curve.
(2) Shifting of Whole Demand Curve: -When due to change in factors other than price of
thesame commodity like change in taste, income etc. the demand changes, the entire demand
curve shifts either upwards or downwards.
(i) Increase in demand: -When due to favorable change in factors other than the price thedemand
of the commodity rises it is called increase in demand. It is represented by a right ward shift in
the demand curve.
Increase in demand takes place in two ways:-
(a) When more purchase takes place at same price.
(b) When same purchase takes place at more price. Here DD is the original demand curve where
Q1 quantity is bought a P price. Due to the change in factors the quantity purchased increases to
Q2 at the same price P. this causes the demand curve to shift upward or to the right. This shift in
demand curve is called increase of demand.
(ii) Decrease in Demand: When due to change in factors other than the price the demand of the
commodity falls, it is called decrease in demand. Its is represented by a left ward shift in the
demand curve.

Decrease in demand takes place in two ways :-
(a) When less purchase takes place a same price.
(b) When same purchase takes place at less price.
Here DD is the original demand curve where Q1 quantity is bought at P price. Due to the change
in other factors the quantity purchased decreases to Q2 at same price P.This cause the demand
curve to shift downward or leftward. This shift in demand curve is called decrease in demand.
Elasticity of Demand:
Meaning: The elasticity of demand measures the responsiveness of the quantity demanded of
agood to change in its quantitative determinant. Types Elasticity of demand are as follows :-
• Price Elasticity of Demand
• Income Elasticity of Demand
• Cross Elasticity of Demand
Price Elasticity of Demand:
The Degree of responsiveness of the quantity demanded of a good to a change in its prices of
goods.
Methods to measures the elasticity of demand;
(1) % or Proportionate Method
(2) Total Outlay or Total Expenditure Method
(3) Point Elasticity or Geometric Method
(4) Arc Elasticity Method
There are five degrees of Price Elasticity of Demand :-
(i) Perfectly Elastic Demand : A Perfectly elastic demand is one in which demand is infinite at
the prevailing price. It is a situation where the slightest rise in price causes the quantity
demanded of the commodity to fall to zero.

(ii) Perfectly Inelastic Demand: Perfectly inelastic demand is one in which a change in quantity
demanded. It is a situation where even substantial changes in price leave the demand unaffected.
(iii) Unitary Elastic Demand: unitary elastic demand is one in which the quantity demanded
changes by exactly the same percentage as the price. It is a situation when change in quantity
demanded in response to change in price of the commodity is such that total expenditure of the
commodity, remains same.
(iv) Greater than Unitary Elastic Demand or Elastic Demand:A elastic demand is one inwhich
the quantity demanded changes by a larger percentage than the price. It is a situation when
change in quantity demanded in response to change in price of the commodity is such that the
total expenditure on the commodity increases when prices decreases and total expenditure
decreases when price increases.
(v) Less than Unitary Elastic Demand or Inelastic Demand:Inelastic Demand is one inwhich
quantity demanded changes by a smaller percentage than the change in price. It is a situation
when change in quantity demanded in response to change in price of the commodity is such that
total expenditure on the commodity decreases when price falls and total expenditure increases
when price rises.
(2) Total Outlay Method: Under this the elasticity of demand can be measured by consideringthe
changes in price and the subsequent change in the total quantity of goods purchased and the total
amount of money spent on it. This method gives only the nature of elasticity and not the exact
numerical value.
Degree of prices elasticity of demand according to this method as follows:
(i) Elastic Demand: The demand for a commodity is elastic when the total expenditure on it
increases with a fall in price.
(ii) Unitary Elastic Demand: here, with a fall in price the total outlay of the consumers on that
commodity remains the same, though he purchase more in terms of units. Elasticity in this case
equals to one.

(iii) Inelastic demand: A commodity will have inelastic demand when with a fall in its pricethe
total expenditure on it also falls. Here, the elasticity is less than unity.
(3) Point Elasticity Method:In this method we measure elasticity at a given point on thedemand
curve. Here we make use of derivatives rather than finite changes in price and quantity. Point
elasticity can also be calculated as :-
(4) Arc Elasticity:It is a measure of the average responsiveness to price change exhibited by
ademand curve over some finite stretch of the curve.
Determinants of Price Elasticity of Demand:
(i) Nature of Commodity
(ii) Substitute Goods
(iii) Position of a Commodity in a Consumer’s Budget
(iv) Number of Uses
(v) Time Period
(vi) Consumer Habit
(vii) Joint or Tied Demand
(viii) Price Expectation
Income Elasticity of Demand:
Income elasticity of demand is the ratio of change in demand to the change in income.
= % Change in Quantity Demanded
% Change in Income
Degrees of Income Elasticity of Demand
(i) Negative Income Elasticity of Demand:Negative Income Elasticity of Demand isone

in which demand for a commodity falls as the income rises. This holds good for
inferior goods.

(ii) Zero Income Elasticity of Demand:Zero income elasticity of demand is one in whichdemand
of a commodity does not change as the income changes. This holds good for essential goods.
(iii) Greater than Zero but less than One Income Elasticity of Demand:
Greater than zero but less than one income elasticity of demand is one in which demand for a
commodity rises less than in proportion to a rise in income.
(iv) Unitary Income Elasticity of Demand: Unitary income elasticity of demand is one in which
the demand for a commodity rises in the same proportion as the rise in income.
(v) Greater than Unitary Income Elasticity of Demand: Greater than unitary income elasticity of
Demand is one in which the demand for commodity rises more than in proportion to rise in
income.
Cross Elasticity of Demand
The cross elasticity of demand is the responsiveness of demand for commodity X to change in
price of commodity Y and is represented as follows:-
= Proportionate Change in the Quantity Demanded of Commodity X

Proportionate Change in the Price of Commodity Y
The relationship between X and Y commodities may be substitute as in case of tea and coffee or
complementary as in the case of ball pens and refills.
(i) Cross elasticity = Infinity where Commodity X is nearly a perfect substitute for Commodity Y
(ix) Cross Elasticity = Zero where Commodities X and Y are not related
(x) Cross Elasticity = Negative where Commodities X and Y are complementary
Thus, if Ec approaches infinity, means that commodity X is nearly a perfect substitute for
commodity Y. On the other hand, if Ec approaches Zero it would mean that the two commodities
in question are not related at all. Ec shall be negative when commodity Y is complementary to
commodity X.

Factor affecting Elasticity of Demand:
(i) Nature of Commodity: Ordinarily, necessaries like salt, Kerosene, oil, match
boxes,textbooks, seasonal vegetables, etc. have less than unitary elastic demand. Luxuries like
air conditioner, costly furniture, fashionable garments etc. have greater than unitary elastic
demand. The reason being that change in their price has a great effect on their demand. Comforts
like milk, transistor cooer, fans etc have neither very elastic nor very inelastic demand.
JointlyDemanded Goods like car & petrol, pen & ink, camera & films etc. have ordinarily in
elasticdemand for example rise in price of petrol will not reduce its demand if the demand for
cars has not decreased.
(ii) Availability of Substitutes: Demand for those goods which have substitute are relativelymore
elastic. The reason being that when the price of commodity falls in relation to its substitute, the
consumer will go in for it and so its demand will increase. Commodities have no substitute like
cigarettes, liquor etc. have inelastic demand.
(iii) Different Uses of Commodity: Commodities that can be put to a variety of uses haveelastic
demand, for instance, electricity has multiple uses. It is used for lighting, room-heating, air-
conditioning, cooking etc. If the tariffs of electricity increase, its use will be restricted to
important purpose like lighting. It will be withdrawn from important uses. On the other hand, if a
commodity such as paper has only & a few uses, its demand is likely to be inelastic.
(iv) Postponement of the Use: Demand will be elastic for those commodities
whoseconsumption can be postponed for instance demand for constructing a house can be
postponed. As a result demand for bricks, cement, sand etc. will be elastic. Conversely goods
whose demand cannot be postponed, their demand will be inelastic.
(v) Income of Consumer: People whose incomes are very high or very low, their demand
willordinarily be inelastic. Because rise or fall in price will have little effect on their demand.
Conversely middle income groups will have elastic demand.
(vi) Habit of Consumer: Goods to which a person becomes accustomed or habitual will have
inelastic demand like cigarette, coffee tobacco. Etc. It is so because a person cannot do without
them.

(vii) Proportion of Income Spent on a Commodity: Goods on which a consumer spends a
verysmall proportion of his income, e.g. toothpaste, needles etc. will have an inelastic demand.
On the other hand goods on which the consumer spends a large proportion of his income e.g.
cloth etc. their demand will be elastic.
(viii) Price Level:Elasticity of demand also depends upon the level of price of the
concernedcommodity. Elasticity of demand will be high at higher level of the price of the
commodity and low at the lower level of the price.
(ix) Time Period:Demand is inelastic in short period but elastic in long period. It is so becausein
the long run, a consumer can change his habits more conveniently in the short period.
Importance or significance of Elasticity of Demand
(i) Helpful in Price Determination:The concept of elasticity helps a monopolist in fixingprices

for his product. He will fix a higher price in those markets where there is inelastic demand for his
product. Conversely, he will fix a lower price for the same product in some other segments of the
market where there is elastic demand for that particular product. In this way he can discriminate
the price to maximize his profit.
(ii) Useful for Government:Government fixes a higher tax rates in case of goods havinginelastic
demand and a lower tax rate for good having elastic demand.
(iii) Useful in International Trade:It helps to calculate the terms of trade and the consequentgain
from foreign trade. If the demand for home product is inelastic, terms of trade will be profitable
to the home country.
(iv) Helpful in Forecasting Demand:It is possible to forecast the demand for a

particularcommodity by analyzing its states of elasticity.
(v) Elasticity of Demand:Elasticity of demand also helps in taking decision regardingdevaluing

or revaluing a country in terms of foreign currency.
Theory of Supply / Supply and Its Determinants:
Meaning: “The supply of good is the quantity offered for sale in a given market at a given timeat
various prices”. Thus, the important features of supply may be concluded as:-

(i) It is the quantity of commodity offered for sale in the market at various prices.
(ii) It is flow and is always measured in terms of time.
Determinants of Supply are follows:
(i) Price of the Good
(ii) Price of Related
(iii) Price of Factors of Production
(iv) State of Technology
(v) Government Policy
(vi) Other Factor: Includes various individual policies, exchange policies, trade policy etc.Time
is another important factor influencing supply e.g. it is quite difficult to adjust the supply to the
changing conditions in the short period. But such adjustments in supply become easy if the time
period is long. Again, transparent and infrastructural facilities positively affect the supply of a
good.
Law of Supply:
In the Words of Dooley, “The law of supply states that other things remaining the same, higher
the prices the greater the quantity supplied and lower the prices the smaller the quantity
supplied”.
Assumption of the Law:
(i) It is assumed that incomes of buyers and sellers remain constant.
(ii) It is assumed that the tastes and preferences of buyers and sellers remain constant.
(iii) Cost of all the factors of production is also assumed to be constant.
(iv) It is also assumed that the level of technology remains constant.

(v) It is also assumed that the commodity is divisible.
(vi) Law of supply states only a static situation.
Criticisms of Law of Supply:
(i) It Explains Only the Static Situation
(ii) Expectation of Change in the Prices in
(iii) It does not apply on Agricultural Products
(iv) It does not apply on Artistic
(v) It does not apply on the Goods of Auction
Why Supply Curve upward sloping:
The following reason are responsible through which supply increase with increase in price &
Vice-versa:-
(i) Seller becomes ready to offer more goods from their old stocks.
(ii) Producer increase their production in view of high profit possibilities.
(iii) New firms enter the market visualizing higher profit which in turn, increases supply & vice-
versa.
Exception of the law of supply:
(1) Social distinction goods
(2) Antique goods
2. Labor supply curve
3. Agriculture commodity
4. Perishable commodity
(i) Perfectly Elastic Supply:Under this, supply tends to be infinitely elastic. It happenswhen
nothing is supplied at a lower price but a small increase in price causes the quantity supplied to
increase to an infinite extent indicating that the producers are ready to supply any quantity at that
price. Here, the supply curve becomes parallel to x axis
(iii) Perfectly Inelastic Supply: At times, the supply of a commodity may not change at all to any

change in price. Such a commodity is said to have zero elasticity of supply or perfectly inelastic
supply. Graphically, the supply curve drawn is parallel to Y axis.
(iii) Unit Elastic:When the proportionate change in the quantity supplied is equal to
theproportionate change in price, the supply of the commodity is said to be of unit elasticity.
Here, the coefficient of elasticity of supply is equal to one, i.e. Es = 1. As given in the figure,
relative change in the quantity supplied (q) is equal to the relative change in the price ( p).
(iv) More than Unit Elastic Supply or Relatively greater Elastic Supply :
Elasticity of supply is said to be more than unity when a small change in price leads to a
substantial change in commodity supplied. It means that relative change in commodity supplied
is more than the relative change in price.
(v) Less than Unit Elastic Supply or Relatively less Elastic Supply : In this case a substantial
change in price leads to a very small change in quantity supplied. It means that the quantity
supplied is lesser in proportion than the change in price of the commodity. Thus, Es < 1.
Elasticity of Supply measured
(i) Percentage Method:
It is depicted of follows:
= Proportionate Change in Quantity Supplied
Proportionate Change in Price
(ii) Geometric Method (Point Method):
Measuring the elasticity at a particular point of the supply curve is known as point elasticity of
supply
(iii) Arc Method: It is a measure of the average responsiveness to price change exhibited by a
supply curve over some finite stretch of the curve.

hift of Demand and Supply and Change in Supply:
(1) Movement along the Same Supply Curve: When due to change in price alone, the
supplychanges it is expressed by different points on the same supply curve.
3. Expansion of Supply:When supply of a commodity increases on an increase in its price, itis

called expansion. It is shown by upward movement of supply curve.
4. Contraction of Supply:when supply of a commodity decrease on a falls in its price, it iscalled

contraction of supply; It is shown by downward movement of supply curve.
Both expansion and contraction of supply is shown as under:-
Original supply of commodity is OQ, at price OP. When the price increases to OP1, the supply
increase to OQ1 i.e. T1 on Supply curve. This is expansion of supply. When the price falls to
OP2 Supply decreases to OQ2 i.e. T2 on supply curve. This is contraction of Supply:
(2) Shifting of the Whole Supply Curve: When due to change in factors other than price of the
same commodity like change in income, change in taste etc, the supply changes it makes the
supply curve shift either leftward or rightward of the original supply curve. This is called shifting
of the supply curve.
4. Increase in Supply:When supply of a commodity increases due to change in any factorother

than price it is called increase in supply. It is shown by rightward shift of supply curve.
5. Decrease in Supply:When the supply of a commodity decreases due to a change in anyfactor

other than price, it is called decrease in supply. It is shown by leftward shift of the supply curve.
Elasticity of Supply/ concept of Elasticity:
According to Samuelson, ‘Elasticity of Supply is the degree of responsiveness of supply ofa

commodity to a change in its price.’ It is measured by dividing the percentage change in the
quantity supplied of a commodity by the percentage change in its price. It can be expressed as
follows:-
% Change in Quantity Supplied
% Change in Price

Factors affecting the Elasticity of Supply:
(i) Nature of the Commodity
(i) For perishable goods, its supply will not respond in an effective manner to the change in
price. So it has an inelastic supply.
(ii) For durable goods, its supply will respond effectively and it will have an elasticity of supply.
(ii) Production Time
(iii) Techniques of Production
Price Determination of a Commodity: The competition between buyers and sellers, by the
relation of the demand to the supply, of the call to the offer. The competition by which the price
of a commodity is determined is threefold.
The same commodity is offered for sale by various sellers. Whoever sells commodities of the
same quality most cheaply is sure to drive the other sellers from the field and to secure the
greatest market for him. The sellers therefore fight among themselves for the sales, for the
market. Each one of them wishes to sell, and to sell as much as possible, and if possible to sell
alone, to the exclusion of all other sellers. Each one sells cheaper than the other. Thus there takes
place a competition among the sellers which forces down the price of the commodities offered
by them.
But there is also a competition among the buyers; this upon its side causes the price of the
proffered commodities to rise.
Finally, there is competition between the buyers and the sellers: these wish to purchase as
cheaply as possible, those to sell as early as possible. The result of this competition between
buyers and sellers will depend upon the relations between the two above-mentioned camps of
competitors – i.e., upon whether the competition in the army of sellers is stronger. Industry leads
two great armies into the field against each other, and each of these again is engaged in a battle
among its own troops in its own ranks. The army among whose troops there is less fighting,
carries off the victory over the opposing host.
Concepts of Production: Total Product:

Total product (also known as total physical product) is defined as the total quantity of output
produced by a firm in the given inputs. Total product identifies the specific outputs which are
possible using variable levels of counts. An understanding of total product is essential to the
short-run analysis of a firm's production. Changes in total product are taken into account closely
when there are changes in variable costs (labor) of production.

Average Product:
Average Product is defined as the product produced per unit of variable input employed when
fixed inputs are held constant. It is commonly thought of as the amount of product produced by
every worker.
Marginal Product:
'Marginal Productis similar to average product but is looked at from another perspective.
Discrete marginal product is defined as the change in total product that comes as a result of a one
unit increase in the variable input/capital level of a firm. Continuous marginal product is
calculated as the derivative of total product with respect to the variable input employed. This can
be represented as
(dTP)/(dVI)=MP
where TP is total product, MP is marginal product and VI is variable inputs. The analysis of
marginal product is foundational to explaining the law of supply (upward-sloping supply curve)
via the Law of Diminishing Marginal Returns.
Returns to Factor and Returns to Scale:

Returns to a factor:
1. Only one factor varies while all the rest are fixed.
2. The factor-proportion varies as more and more of the units of the variable factor are employed
to increase output.
4. Returns to a factor or to variable proportions end up in negative returns.
3. It is a short-run phenomenon.
5. Returns to variable proportions are caused by indivisibility of certain fixed factors,

specialization of certain variable factors, or sub-optimal factor proportions.
Returns to scale:
1. All or at least two factors vary.
2. Factor proportion called scale does not vary. Factors are increased in same proportion to
increase output.

3. It is a long-run phenomenon.
4. Returns to scale end up in decreasing returns.
5. Returns to scale can be attributed to economies and diseconomies of scale caused by technical
and/or managerial indivisibilities, exhaustibility of natural and managerial resources, or
depreciability of certain factors.
Returns to a factor relate to the short-period production function when one factor is varied
keeping the other factor fixed in order to have more output, the marginal returns or marginal
product of the variable factor diminishes.
This relates to the Law of Variable Proportions. On the other hand, returns to scale relate to the
long-period production function when a firm changes its scale to production by changing one or
more of its factors. This refers to the Law of Returns to Scale.
Assumptions:
We explain the relation between the returns to a factor and returns to scale on the assumptions
that:
(1) There are only two factors of production, labour and capital;
(2) Labor is the variable factor and capital is the fixed factor;
(3) Both factors are variable in returns to scale and the production function is homogeneous.
Costs and Revenue Concepts:

Revenue:
Profit making is considered to be the most important objective of firm. Like the consumers aim
at utility maximization, the producers aim at the profit maximization. Profit is a difference
between total cost and total revenue.Profit can be increased either by reducing the cost of
production or by increasing the revenue. In this unit, we are going to learn various concepts of
total revenue, the behiour of revenue under different market conditions and the importance of
concept of revenue.
Fixed cost A cost which does not vary with

output in the short-run (e.g. rent,
insurance, etc).
A cost which varies with output

in both the short and long-run
Variable cost
(e.g. raw materials, direct
labour, etc).
A cost which is irrecoverable

Sunk cost upon exiting the industry (e.g.
advertising, R&D, etc).
Total cost TC = TFC + TVC
Cost per unit of output.

Average cost
TC/Q
The addition to TC from

producing one more unit of
Marginal cost
output.
change in TC/change in Q
The total income gained from

Total Revenue selling the firm’s output.
TR = P-Q
Revenue per unit of output.

Average revenue
TR/Q
The addition to TR from selling

Marginal revenue one more unit of output.
change in TR/change in Q
Internal economies of scale can

be defined as a fall in long-run
Internal Economies of Scale average cost associated with an
increase in output for an
individual firm.

Internal economies of scale
occur when an individual firm
expands, whereas external
economies of scale have an
External Economies of Scale
impact on the entire industry
and therefore lower the long-run
average cost curve at each
output level.
A rise in long-run average costs

Diseconomies of scale
as output increases.
Where society gets the optimum

mix of goods and services in the
Allocative efficiency
highest possible quantities, at
which point P = MC.
Any level of output at which

Productive efficiency LRAC is minimised; occurs
where LRAC = LRMC.
Reinvestment of profits into

R&D to promote faster rate of
technological development that
will reduce costs and produce
Dynamic efficiency
better quality products for
consumers. Often finance with
supernormal profits (hence
feasible when AR>AC)
The level of output at which

LRAC stops falling (i.e. the
Minimum efficient scale smallest level of output at
which the firm is productively
efficient).
The minimum (accounting)

Normal profit
profit which the entrepreneur

needs to remain in long-term
production (i.e. the opportunity
cost of capital and enterprise).
Occurs at the level of output
where AR = AC.
Any profits in excess of normal

Supernormal profit profits. Occurs at any level of
output where AR > AC
UNIT-III
Perfect competition – a pure market
Perfect competition describes a market structure whose assumptions are strong and therefore
unlikely to exist in most real-world markets. Economists have become more interested in pure
competition partly because of the growth of e-commerce as a means of buying and selling goods
and services. And also because of the popularity of auctions as a device for allocating scarce
resources among competing ends.
Assumptions for a perfectly competitive market
• Many sellers each of whom produce a low percentage of market output and cannot
influence the prevailing market price.
• Many individual buyers, none has any control over the market price
• Perfect freedom of entry and exit from the industry. Firms face no sunk costs and entry
and exit from the market is feasible in the long run. This assumption means that all
firms in a perfectly competitive market make normal profits in the long run.
• Homogeneous products are supplied to the markets that are perfect substitutes. This leads
to each firms being “price takers” with a perfectly elastic demand curve for their
product.
• Perfect knowledge – consumers have all readily available information about prices and
products from competing suppliers and can access this at zero cost – in other words,
there are few transactions costs involved in searching for the required information about

prices. Likewise sellers have perfect knowledge about their competitors.
• Perfectly mobile factors of production – land, labour and capital can be switched in
response to changing market conditions, prices and incentives.
• No externalities arising from production and/or consumption.
Evaluation – Understanding the real world of imperfect competition!
It is often said that perfect competition is a market structure that belongs to out-dated textbooks
and is not worthy of study! Clearly the assumptions of pure competition do not hold in the vast
majority of real-world markets, for example, some suppliers may exert control over the amount
of goods and services supplied and exploit their monopoly power. On the demand-side, some
consumers may have monopsony power against their suppliers because they purchase a high
percentage of total demand. Think for example about the buying power wielded by the major
supermarkets when it comes to sourcing food and drink from food processing businesses and
farmers. The Competition Commission has recently been involved in lengthy and detailed
investigations into the market power of the major supermarkets. In addition, there are nearly
always some barriers to the contestability of a market and far from being homogeneous; most
markets are full of heterogeneous products due to product differentiation – in other words,
products are made different to attract separate groups of consumers.
Consumers have imperfect information and their preferences and choices can be influenced by
the effects of persuasive marketing and advertising. In every industry we can find examples of
asymmetric information where the seller knows more about quality of good than buyer – a
frequently quoted example is the market for second-hand cars! The real world is one in which
negative and positive externalities from both production and consumption are numerous – both
of which can lead to a divergence between private and social costs and benefits. Finally there
may be imperfect competition in related markets such as the market for key raw materials, labour
and capital goods. Adding all of these points together, it seems that we can come close to a world
of perfect competition but in practice there are nearly always barriers to pure competition. That
said there are examples of markets which are highly competitive and which display many, if not
all, of the requirements needed for perfect competition. In the example below we look at the
global market for currencies.
Currency markets - taking us closer to perfect competition

• The global foreign exchange market is where all buying and selling of world currencies
takes place. There is 24-hour trading, 5 days a week.
• Trading volume in the Forex market is around $3 trillion per day – equivalent to the
annual GDP of France! 31% of global trading takes place in London alone.
• Most trading in currencies is ‘speculative.’
The main players in the currency markets are as follows:
• Banks both as “market makers” dealing in currencies and also as end-users demanding
currency for their own operations.
• Hedge funds and other institutions (e.g. funds invested by asset managers, pension
funds).
• Central Banks (including occasional currency intervention in the market when they buy
and sell to manipulate an exchange rate in a particular direction).
• Corporations (for example airlines and energy companies who may use the currency
market for defensive ‘hedging’ of exposures to risk such as volatile oil and gas prices.)
• Private investors and people remitting money earned overseas to their country of origin /
market speculators trading in currencies for their own gain / tourists going on holiday
and people traveling around the world on business.
Why does a currency market come close to perfect competition?
• Homogenous output: The "goods" traded in the foreign exchange markets are
homogenous - a US dollar is a dollar and a euro is a euro whether someone is trading it
in London, New York or Tokyo.
• Many buyers and sellers meet openly to determine prices: There are large numbers of
buyers and sellers - each of the major banks has a foreign exchange trading floor which
helps to "make the market". Indeed there are so many sellers operating around the world
that the currency exchanges are open for business twenty-four hours a day. No one
agent in the currency market can, on their own influence price on a persistent basis - all
are ‘price takers’. According to Forex_Broker.net "The intensity and quantity of buyers
and sellers ready for deals doesn't allow separate big participants to move the market in

joint effort in their own interests on a long-term basis."

• Currency values are determined solely by market demand and supply factors.
• High quality real-time information and low transactions costs: Most buyers or sellers are
well informed with access to real-time market information and background research
analysis on the factors driving the prices of each individual currency. Technological
progress has made more information immediately available at a fraction of the cost of
just a few years ago. This is not to say that information is cheap - an annual subscription
to a Bloomberg or a Reuter’s news terminal will cost several thousand dollars. But the
market is rich with information and transactions costs for each batch of currency bought
and sold has come down.
• Seeking the best price: The buyers and sellers in foreign exchange only deal with those
who offer the best prices. Technology allows them to find the best price quickly.
What are the limitations of currency trading as an example of a competitive market?
• Firstly the market can be influenced by official intervention via buying and selling of
currencies by governments or central banks operating on their behalf.
Monopolistic Competition:
A type of competition within an industry where:
1. All firms produce similar yet not perfectly substitutable products.
2. All firms are able to enter the industry if the profits are attractive.
3. All firms are profit maximizers.
4. All firms have some market power, which means none are price takers
Pure monopoly and perfect competition are two extreme cases of market structure. In reality,
there are markets having large number of producers competing with each other in order to sell

their product in the market. Thus, there is monopoly on one hand and perfect competition on
other hand. Such a mixture of monopoly and perfect competition is called as monopolistic
competition. It is a case of imperfect competition.
Monopolistic competition has been introduced by American economist Prof. Edward

Chamberlin, in his book 'Theory of Monopolistic Competition' published in 1933.
Features of Monopolistic Competition:
The following are the features or characteristics of monopolistic competition:-
1. Large Number of Sellers: There is large number of sellers producing differentiated products.
So, competition among them is very keen. Since number of sellers is large, each seller produces
a very small part of market supply. So no seller is in a position to control price of product. Every
firm is limited in its size.
2. Product Differentiation: It is one of the most important features of monopolistic competition.

In perfect competition, products are homogeneous in nature. On the contrary, here, every
producer tries to keep his product dissimilar than his rival's product in order to maintain his
separate identity. This boosts up the competition in market. So, every firm acquires some
monopoly power.
3. Freedom of Entry and Exit: This feature leads to stiff competition in market. Free entry into
the market enables new firms to come with close substitutes. Free entry or exit maintains normal
profit in the market for a longer span of time.
4. Selling Cost: It is a unique feature of monopolistic competition. In such type of market, due to
product differentiation, every firm has to incur some additional expenditure in the form of selling
cost. This cost includes sales promotion expenses, advertisement expenses, salaries of marketing
staff, etc.But on account of homogeneous product in perfect competition and zero competition in
monopoly, selling cost does not exist there.
5. Absence of Interdependence: Large numbers of firms are different in their size. Each firm has
its own production and marketing policy. So no firm is influenced by other firm. All are

independent.
6. Two Dimensional Competition: Monopolistic competition has two types of competition

aspects viz.
 Price competition i.e. firms compete with each other on the basis of price.
 Non price competition i.e. firms compete on the basis of brand, product quality
advertisement.
7. Concept of Group: In place of Marshallian concept of industry, Chamberlin introduced the

concept of Group under monopolistic competition. An industry means a number of firms
producing identical product. A group means a number of firms producing differentiated products
which are closely related.
8. Falling Demand Curve: In monopolistic competition, a firm is facing downward sloping

demand curve i.e. elastic demand curve. It means one can sell more at lower price and vice versa.
Imperfect Competition:
A type of market that does not operate under the rigid rules of perfect competition. Perfect
competition implies an industry or market in which no one supplier can influence prices, barriers
to entry and exit are small, all suppliers offer the same goods, there are a large number of
suppliers and buyers, and information on pricing and process is readily available. Forms of
imperfect competition include monopoly, oligopoly, monopolistic competition, monopsony and
oligopoly
Perfect competition is often viewed as a theoretical model, because every industry or market
operates in some form of imperfect competition. For example, some industries rely on heavy
initial capital investment, such as industrial manufacturers and telecom providers. This makes the
prospect of having many competitors practically impossible. In the real world, markets are
evaluated by their relative closeness to perfect competition, and efforts are made to approach it.
Monopoly:
A market structure characterized by a single seller, selling a unique product in the market. In a
monopoly market, the seller faces no competition, as he is the sole seller of goods with no close
substitute.

In a monopoly market, factors like government license, ownership of resources, copyright and
patent and high starting cost make an entity a single seller of goods. All these factors restrict the
entry of other sellers in the market. Monopolies also possess some information that is not known
to other sellers.
Duopoly:
Market situation in which only sellerssupply a particular commodity to many buyers. Either
seller can exert some control over the output and prices, but must consider the reaction of its sole
competitor (unless both have formed an illegal collusive duopoly)
A situation in which two companies own all or nearly all of the market for a given product or
service. A duopoly is the most basic form of oligopoly, a market dominated by a small number
of companies. A duopoly can have the same impact on the market as a monopoly if the two
players collude on prices or output. Collusion results in consumers paying higher prices than
they would in a truly competitive market and is illegal under U.S. antitrust law
Oligopoly:
Market situation between, and much more common than, perfect competition (having many
suppliers) and monopoly (having only one supplier). In oligopolistic markets, independent
suppliers (few in numbers and not necessarily acting in collusion) can effectively control the
supply, and thus the price, thereby creating a seller's market. They offer largely similar products,
differentiated mainly by heavy advertising and promotional expenditure, and can anticipate the
effect of one another's marketing strategies. A situation in which a particular market is controlled
by a small group of firms.
An oligopoly is much like a monopoly, in which only one company exerts control over most of a
market. In an oligopoly, there are at least two firms controlling the market.
DUMPING LEGAL DEFINITION
• The act of selling goods at less than fair market value, typically for the purpose of
injuring a competitor and gaining market share.
• The selling of large amounts of a stock, or stocks in general, at whatever market prices
are in effect. For example, investors might dump stocks on hearing of an outbreak of
fighting in some part of the world.

• The selling of a product in one market at an unusually low price while selling the same
product at a significantly higher price in another market. For example, a firm may sell a
product in its home market at a price covering all costs, and then sell the product in a
foreign market at a significantly lower price, covering only variable costs. See also
antidumping.
• The sale of goods of one nation in the markets of a second nation at less than the price
charged within the first nation. Dumping can eliminate competitors by undercutting their
prices
• Selling goods or commodities in another country at prices that are substantially below the
going market price. International trade regulations attempt to prevent dumping.
Violations may be reported to the World Trade Organization.
• Selling a large amount of securities in a market with no concern for what effect that is
likely to have on the price or the product
• The selling of large amounts of a stock or stocks in general at whatever market prices are
in effect. For example, investors might dump stocks upon hearing of an outbreak of
fighting in some part of the world.
• The selling of a product in one market at an unusually low price while selling the same
product at a significantly higher price in another market. For example, a firm may sell a
product in its home market at a price covering all costs and then sell the product in a
foreign market at a significantly lower price covering only variable costs.
Dumping- Evolution of the term:
It has long been customary to speak of one market as a ‗dumping ground for the surplus
products of another market when the producers of the latter for any reason sell their commodities
in the former at unusually low prices.
From this usage it was a natural outcome to speak of selling in a distant market at reduced prices
as dumping, but the word used in this sense appeared not to have entered into the literature of
economics until the first years of the twentieth century. In 1903 and 1904, the tariff question was
the dominant political issue in Great Britain, and in a huge output of polemical literature which

marked the tariff controversy. The term became well established and appeared with or without
apologetic quotation marks in book after book.
The term dumping has since found its way into the economic terminology of the French,
German, Italian and probably other languages. Initially, it had a vague and uncertain meaning,
and is still used indiscriminately for such diverse price‐practices such as severe competition,
customs undervaluation, bargain, sacrifice or slaughter sales , local price‐cutting and selling in
one national market at a lower price than in another.
In recent years, however, the increased use of the term by academic economists with their
creditable tendency towards the exact establishment of terminology and of the development of
legislation dealing with dumping and allied price‐practices, which made necessary some measure
of precision in the differentiation between various price practices, have both contributed to the
consistency of the usage. Extensive variations in the use of the term both as to gist and
implication are nevertheless still present.
According to Dale, the origin of the word dump is uncertain. Its usage by the early nineteenth
century had come to mean the act of throwing down in a lump or mass, as with a load from a
cart, and it was then a natural extension to apply the word to the disposal of refuse and to
describe as a dumping ground, a market for the disposal of surplus stock. During this time,
dumping was used in English language trade literature to illustrate loosely a situation in which
goods were sold cheaply in foreign markets. Today, however, the term is used intentionally to
signify the practice of price discrimination in international trade.
Importance:
The term was applied persuasively to describe almost any situation in which goods were sold
abroad at cheap prices, irrespective of the cause of the cheapness, the insinuation being that the
goods were unwanted in their country of derivation and were exported only to get rid of them.
Economists have always defined dumping as transnational price discrimination where prices
vary between national markets. Although economists still object in principle, they now accept
that dumping may also be defined as transnational sale below costs. Deard off admits this new.
The definition has broadened over the years; some now consider dumping including ‗sales
below costs‘, at least presumptively….this alternative criteria for dumping have gradually
acquired elevated status of an alternative definition.
However, there is no correlation between price discrimination and sales below cost. Sales below

cost may occur with or without discrimination and yet, on the other hand discrimination may
take place without selling below costs. The term dumping is employed most often, even in
careless business language to signify selling the same commodities at different prices in different
markets. Commercially, the term is often uncritically extended to cover various types of sales at
prices lower than those generally current, even if the prices are uniform to all purchasers.
Types of Dumping
1. Sporadic Dumping: Occasional sale of a commodity at below cost in order to unload
anunforeseen and temporary surplus of the commodity such as cheese, milk, wheat etc. in the
international market without reducing domestic prices.
2. Predatory Dumping: Temporary sale of a commodity at below its average cost or a lowerprice
abroad in order to derive foreign producers out of business, after which prices are raised to take
advantage of the monopoly power abroad.
3. Persistent Dumping: Continuous tendency of a domestic monopolist to maximize total
profitsby selling the commodity at a higher price in the domestic market than internationally (to
meet the competition of foreign rivals).
Impact of Dumping:
Dumping usually occurs because of the following reasons:
(1) Producers in one country are trying to stay competitive with producers in another country,
(2) Producers in one country are trying to eliminate the producers in another country and gain a
larger share of the world market,
(3) Producers are trying to get rid of excess stuff that they can't sell in their own country,
(4) Producers can make more profit by dividing sales into domestic and foreign markets, then
charging each market whatever price the buyers are willing to pay.

Wage determination:
wage law is the body of law which prohibits employers from hiring employees or workers for
less than a given hourly, daily or monthly minimum wage. More than 90% of all countries have
some kind of minimum wage legislation. Until recently, minimum wage laws were usually very
tightly focused. In the U.S. and Great Britain, for example, they applied only to women and
children. Only after the Great Depression did many industrialized economies extend them to the
general work force. Even then, the laws were often specific to certain industries. In France, for
example, they were extensions of existing trade union legislation. In the U.S., industry specific
wage restrictions were held to be unconstitutional.
Coverage was later extended to most of the labor force. A minimum wage is the lowest hourly,
daily or monthly remuneration that employers may legally pay to workers. Equivalently, it is the
lowest wage at which workers may sell their labor. Although minimum wage laws are in effect
in many jurisdictions, differences of opinion exist about the benefits and drawbacks of a
minimum wage.
Rent, Interest, and Profits:
Introduction:
A. Labor markets, because wages and salaries account for about 70 percent of our national
income. (If proprietors’ income, which is largely labor income, is added to wages and salaries,
the return to labor increases to 80 percent.)
B. The three sources of income—rent, interest, and profits—which compose the remaining 20
percent of our national income.
1. Why do different parcels of land in different locations receive different rent payments?
2. What factors determine interest rates and causes interest rates to change?

3. What are the sources of profits and losses and why do profits and losses change over time?
II. Economic rent is the price paid for use of land and other natural resources that are fixed in
supply. (Note that this definition differs from the everyday use of the term.)
A the demand for land is downward sloping because of diminishing returns and the fact that
producers must lower the price of the product to sell additional units of output.
B. Perfectly inelastic supply of the resource is one unique feature of the supply side of the market
that determines rent. Land has no production cost; it is a “free and non reproducible gift of
nature.” Its quantity does not change with price (with a few exceptions).
C. Changes in demand therefore determine the amount of rent. This will be determined by
several factors.
1. The price of the product grown on the land,
2. The productivity of the land, and
3. The prices of other resources combined with the land for production.
D. Land rent is viewed as a surplus payment because it performs no incentive function to provide
more supply; it is not necessary to ensure the availability of land.
E. Some argue that rent should be taxed away, since it is unearned, or that land should be
nationalized and owned by the state.
1. Henry George’s proposal for a single tax of up to 99 percent of land rent asserted that this tax
could eliminate other taxes. Unlike the effect of a tax on other resources, the tax on land would
not have a negative incentive effect.
2. Critics of the single-tax idea make several points.
a. Current levels of government spending are too great to be supported by rent taxes.
b. It is difficult to separate the rent component from other income resulting from the combined
use of land with other resources.
c. Unearned income goes beyond land and land ownership; capital gains and interest income
might also be considered unearned.

d. It is unfair to tax current owners, who may have paid a steep market price for the land and
therefore find that the rent return is not high relative to that price.
E. Each parcel of land is not equally productive. More productive land will be in great demand
and therefore will receive different rents. These different rent payments allocate land to its most
productive use.
F. In reality, land has alternative uses and costs. From society’s perspective, rent is a surplus; but
an individual firm must pay rent to attract the land away from alternative uses. Without rent to
allocate land among its various uses, there would be no market mechanism to make sure each
piece of land was being utilized in its most valuable fashion. Therefore, rent does provide an
important function to our economic system.
Interest is the price paid for the use of money. It is usually viewed as the money that must be
paid for the use of one dollar for one year.
A. Two aspects of interest are important.
1. It is stated as a percentage, and the Truth in Lending Act of 1968 requires lenders to state the
costs and terms of consumer credit in terms of an annualized interest rate.
2. Money itself is not an economic resource, but it is used to acquire capital goods, so in hiring
money capital, businesses are ultimately buying the use of real capital goods.
B. The loan able funds theory of interest.
1. The supply of loan able funds is an upward-sloping curve—a larger quantity of funds will be
made available at high interest rates than at low interest rates. Most individuals prefer present
consumption and must be paid to defer consumption by saving.
2. The demand for loan able funds is inversely related to the rate of interest. At higher interest
rates fewer investment projects will be profitable since fewer projects yield the high rate of
return needed to compensate for the high interest cost.
3. Economists disagree about the responsiveness of the quantity of investment funds supplied to
changes in interest rates. Most economists believe that saving is relatively insensitive to interest
rate changes and believe the supply of funds is inelastic.

4. Whether the curves are elastic or inelastic, the equilibrium interest rate equates the quantities
of loan able funds supplied and demanded.
5. Households rarely lend savings directly to businesses. Households place their savings in
financial institutions and receive an interest payment. Businesses borrow funds from financial
institutions and pay an interest payment.
6. Changes in the supply of funds may occur as a result of changes in tax policy or social
insurance benefits.
7. Anything that changes the rates of return on potential investments, such as improvements in
technology or a decrease in the demand of the final product, will change the demand for funds.
8. Both households and businesses operate on both the supply and demand sides of the market
for loan able funds. While households supply loan able funds, they may also borrow to finance
large purchases and education. Similarly, businesses may save in the market for loan able funds,
and governments may borrow to finance deficits.
C. Banks and other financial institutions not only gather and make available the savings of
households, but also create funds through the lending process.
D. There are many different interest rates with different names and they vary for many
reasons. 1. Varying degrees of risk (riskier loans carry higher rates),
2. Differing maturities on the loan (higher rates usually on longer term loans),
3. The size of the loan (larger loans have lower rates),
4. Taxability (interest on some local and state bonds is tax free; the interest would be lower,
since lenders don’t have to pay federal taxes on that interest income),
5. Market imperfections play a role, because some banks in smaller towns have more market
power than banks that have a lot of competition.
E. Economists usually refer to what is called the “pure rate of interest,” which is best
approximated by the interest paid on long term, riskless bonds such as the long term bonds of the

U.S.government. In spring 2001 this rate was 5.5 percent. The current rate can be found in the
third section of the daily Wall Street Journal and other publications.
F. The role of the interest rate is important because it affects both the level and composition of
investment and R&D spending.
1. The level of investment varies inversely with the interest rate. The Federal Reserve System
will increase and decrease the money supply and thus influence interest rates. Changes in
investment will affect the level of GDP.
2. Interest rates will also have an effect on borrowing for R&D. Again, R&D depends upon the
cost of borrowing money as compared to the expected rate of return on the R&D project.
3. Nominal interest rates are those stated in terms of current dollars; the “real” interest rate is the
rate of interest expressed in terms of dollars of constant or inflation-adjusted value. The real
interest rate is the nominal rate minus the rate of inflation.
5. It is the real interest rate, not the nominal rate, that businesses should consider in making their
investment and R&D decisions.
G. Application: Usury laws specify maximum interest rate that can be charged on loans. The
purpose is to make borrowing more accessible to low-income borrowers. However, Figure 29-2
demonstrates several problems with usury laws.
1. There will be a shortage of credit if the usury rate is below the market rate. Riskier borrowers
may be excluded from borrowing from established financial institutions.
2. Credit-worthy borrowers will be able to borrow at below-market “prices.”
3. Lenders will receive less than market rates of return on the funds loaned.
4. Funds will not be allocated to their most efficient use.
IV. Economic profits are what remains of a firm’s total revenue after it has paid individuals and
other firms for materials, capital and labor supplied to the firm (the explicit costs) and allowed
for payment to self employed resources (the implicit costs).

A. The role of the entrepreneur is most important in a capitalist economy. Profits are the reward
paid for entrepreneurial ability, which includes taking initiative in combining resources for
production, making non routine policy decisions, introducing innovations in products and
production processes, and taking risks associated with the uncertainty of all of the above
functions.
1. A normal profit is the minimum required to retain the entrepreneur in some specific line of
production.
2. An economic profit is any profit above the normal profit. This residual profit also goes to the
entrepreneur. This residual profit does not exist under pure competition in a static economy. It
occurs because of the dynamic nature of real-world capitalism and the presence of monopoly
power.
B. There are several sources of economic profits, but they would not occur in a static,
unchanging economy. Thus, the first prerequisite is that the economy be dynamic.
1. In a dynamic economy, the future is uncertain and some risks cannot be insured against.
2. Uninsurable risks stem from three general sources:
a. Changes in the general economic environment
b. Changes in the structure of the economy; and
c. Changes in government policy.
3. Some or all of the economic profit in a real, dynamic economy may be compensation for risk
taking.
4. Some of the economic profit may be compensation for dealing with the uncertainty of
innovation.
5. Monopoly power is a less desirable source of economic profits because such profits stem from
a misallocation of resources.
C. The functions of profits include the following:

1. The expectation of profits encourages firms to innovate, which stimulates new investment.
This will expand output and employment.
2. Profits allocate resources among alternative lines of production. Resources leave unprofitable
ventures and flow to profitable ones, which is where society is signaling it wants these resources
to be allocated.
V. Labor income is the dominant type of income, with wages and salaries constituting about 70
percent of national income. If one adds in a part of proprietors’ income, which is probably
largely labor income, the share rises to about 80 percent. Therefore, the “capitalists’” share of
income is only about 20 percent. These percentages have remained remarkably stable in the U.S.
since 1900.
Risk Theory of Profit:
Prof. Hawley, an American economist in 1907, propounded the risk-bearing theory of profit.
Prof. Hawley remarks, “The profit of an undertaking, or residue of the product after the claims of
land, labor and capital are satisfied, is not the reward of management or coordination but of the
risk and responsibilities that the undertaker subjects himself to“. So, according to this theory,
profit is the reward for risk-taking in business. Every business involves some risk or other. Since
the entrepreneur undertakes the risk, he is entitled to receive profit. If he does the reward, he will
not be prepared to undertake the risks. Hence, higher the risk, the greater is the possibility of
profit. This profit of the entrepreneur exceeds the ordinary return on capital. If it were less than
the ordinary return on capital, the entrepreneur would not be prepared to undertake the risk.
The main objections to this theory are as follows:
1. No Direct Relation between Risk and Profit

Unlike the theory, there is no direct relation between risk and profit. It is not necessary that if the
risk were high, the profit would correspondingly be high. In reality, profit is influenced by
several factors addition to risk bearing. Profit may arise due to superior ability or monopoly
position.
2. Reward for Risk-avoidance
According to Prof. Carver profits arise not because risks are borne, but because the superior
entrepreneurs are able to reduce them. So profit is the reward for risk-avoidance rather than risk-
taking. Still it cannot be denied that a great deal of pure profit is the reward for risk taking.
3. Unforeseeable Risks
A strong criticism has been made by Prof. Knight. According to him profit does not arise due to
all kinds of risk. It arises only due to unforeseeable risks. The foreseeable risks such as fire,
accident can be insured. So an insurable risk is, in reality, no risk at all. Profit arises only due to
unforeseeable risks such as fall in price, changes in fashion new discovery. These risks are non-
insurable. So these risks give rise to profit. Prof. Knight referred to unforeseeable risk as
uncertainty-bearing. So profit is the reward for uncertainty bearing, which is the special function
of the entrepreneur. Peter Duckers also regards profit as the reward for undertaking
unforeseeable risk, which cannot be provided against.
Interest:
Interest is money paid by a bank or other financial institution to an investor or depositor in

exchange for the use of the depositor’s money.
Amount of interest is (usually) a fraction (called the interest rate) of the initial amount deposited
called the principal amount.
A = P (1 + r ) t .
Notation:
r:interest rate per unit time
P:principal amount
A:amount due (account balance)
t:ti

These quantities are related through the equation:
A = P(1 + rt).
If a portion of the interest is credited after a fraction of a year, then the interest is said to be
compounded. If there are n compounding periods per year, then in t years the amount due is
A = P1 + r n nt
The annual interest rate equivalent to a given compound interest rate is called the effective interest rate.
UNIT-IV
Concept of Money:
A commodity,asset, or (most commonly) currency that may be exchanged for goods and services.
Usually, the domestic government issues its own money and provides penalties to persons and
businesses in its jurisdiction that do not accept it. Money and the money supply are integral to
determining interest rates, inflation, and especially economic growth. There is no uniform agreement as
to what qualifies as money; some economists include more mediums of exchange than other economists.
Every society throughout history has used some sort of money, even bartering economies traded for
something perceived to be equivalent.
A generally accepted medium for the exchange of goods and services, for measuring value, or for
making payments. Many economists consider the amount of money and growth in the amount of money
in an economy very influential in determining interest rates, inflation, and the level of economic activity.
There is some disagreement among economists as to what types of things actually should be classified as
money; for example, should balances in money market funds be included.
Functions of Money:
Money is any good that is widely accepted in exchange of goods and services, as well as payment of
debts. Most people will confuse the definition of money with other things, like income, wealth, and
credit. Three functions of money are:
1. Medium of exchange: Money can be used for buying and selling goods and services. If there were no
money, goods would have to be exchanged through the process of barter (goods would be traded for
other goods in transactions arranged on the basis of mutual need). For example: If I raise chickens and
want to buy cows, I would have to find a person who is willing to sell his cows for my chickens. Such
arrangements are often difficult. But Money eliminates the need of the double coincidence of wants.
2. Unit of account: Money is the common standard for measuring relative worth of goods and service.
3. Store of value: Money is the most liquid asset (Liquidity measures how easily assets can be spent to
buy goods and services). Money’s value can be retained over time. It is a convenient way to store
wealth.
Impact of Money:
Activating the concept of money can influence people's own expressions of emotion as well as their
reactions to the emotional expressions of others. Thinking about money increases individuals'
disposition to perceive themselves in a business-like relationship with others in which transactions are
based on objective criteria and the expression of emotion is considered inappropriate. Therefore, these
individuals express less emotion in public and expect others to do likewise. Six experiments show that
subtle reminders of money lead people to have more negative attitudes toward expressing emotions in
public and to avoid expressing emotion in their written communications. In addition, money-primed
participants judge others' emotions to be more extreme and are disposed to avoid interacting with
persons who display these emotions, especially when participants believe that these emotions are
expressed in public.
Inflation and Deflation:

In economics inflation means, a rise in general level of prices of goods and services in a economyover a
period of time. When the general price level rises, each unit of currency buys fewer goodsand services.
Thus, inflation results in loss of value of money. Another popular way of looking atinflation is "too
much money chasing too few goods". The last definition attributes the cause ofinflation to monetary
growth relative to the output / availability of goods and services in theeconomy.
In case the price of say only one commodity rise sharply but prices of other commodities falls, itwill not
be termed as inflation. Similarly, in case due to rumors if the price of a commodity risesduring the day
itself, it will not be termed as inflation.
(a) DEMAND - PULL INFLATION: In this type of inflation prices increase results from anexcess of
demand over supply for the economy as a whole. Demand inflation occurs whensupply cannot expand
any more to meet demand; that is, when critical production factors arebeing fully utilized, also called
Demand inflation.
(b) COST - PUSH INFLATION: This type of inflation occurs when general price levels riseowing to
rising input costs. In general, there are three factors that could contribute to Cost-Pushinflation: rising
wages, increases in corporate taxes, and imported inflation. [imported raw orpartly-finished goods may
become expensive due to rise in international costs or as a result ofdepreciation of local currency
Types of inflation such as:
(1) Currency inflation whereby prices rise NOT because of an increase in money supply, but adecline in
value of the currency on world markets (i.e. G5 manipulation of dollar 40% lower in
1985 led to 1987 Crash & capital flight back to Japan creating bubble there);
(2) capital concentration into one sector causing bubble which can be purely domestic or
inspiredinternationally with rising currency as was the case in Japan 1989 or USA into 1929;
(3) the classroom plain vanilla idea of a rise in prices with an increase in in money supply such assudden
discovery of gold in California, Australia and Alaska during 19th century, and the importof gold and
silver from America into Europe by Spain that created wholesale systemic inflation inall European
economies, and
(4) Commodity inflation that is caused by a drop in supply such as food due to weather orexhaustion of
resources.
(5) Money supply remains unchanged, but the VELOCITY increases from leverage (i.e. lending).
Deflation:
Deflation is the opposite of inflation. Deflation refers to situation, where there is decline ingeneral price
levels. Thus, deflation occurs when the inflation rate falls below 0% (or it isnegative inflation rate).
Deflation increases the real value of money and allows one to buy moregoods with the same amount of
money over time. Deflation can occur owing to reduction in thesupply of money or credit. Deflation can
also occur due to direct contractions in spending,either in the form of a reduction in government
spending, personal spending or investmentspending. Deflation has often had the side effect of increasing
unemployment in an economy,since the process often leads to a lower level of demand in the economy.
In economics, deflationis a decrease in the general price level of goods and services. Deflation occurs
when theinflation rate falls below 0% (a negative inflation rate). This should not be confused
withdisinflation, a slow-down in the inflation rate (i.e., when inflation declines to lower levels).
Inflation reduces the real value of money over time; conversely, deflation increases the real valueof
money – the currency of a national or regional economy. This allows one to buy more goodswith the
same amount of money over time.
Economists generally believe that deflation is a problem in a modern economy because it increasesthe
real value of debt, and may aggravate recessions and lead to a deflationary spiral. Historicallynot all
episodes of deflation correspond with periods of poor economic growth.Deflationoccurred in the U.S.
during most of the 19th century (the most important exception was during theCivil War). This deflation
was caused by technological progress that created significant economicgrowth.This deflationary period
of considerable economic progress preceded theestablishment of the U.S. Federal Reserve System and
its active management of monetary matters.
Deflation is likewise multidimensional
(1) The classroom version of a decrease in money supply;
(2) Failure of money supply expansion to match increase in demand for money
_ (a) as in deleveraging during economic decline as VELOCITY collapses and thus even QE1, QE2,
QE3 failed to produce inflation because they were less than the destruction of capital fromdeleveraging
_ (b) the classic contraction in money supply during economic declines relative to the shift indemand
from assets to liquidity
_ (c) rise in the demand for money outpaces the available supply as in flight to quality money supply
growth falls below economic expansionmoney supply growth falls below population expansion (more
people making due with the sameamount of money)
(3) Contraction in available capital due to rising costs private or public
_ (a) from sudden price sock as in OPEC during 1970s creating STAGFLATION
_ (b) sudden rise in taxation causing decline in VELOCITY of money
_ (c) confiscation of assets by regulation
_ (d) historical forced loans,
_ (e) criminalization of normal human activity to confiscate assets as penalty under pretense of law
(4) in a precious metal money supply the debasement of new currency causes Gresham’s Lawwhereby
the the older money supply is then hoarded thereby shrinking the TOTAL supply ofmoney
(a) This causes prices to rise in terms of the debased new currency ONLY creating an admixture
ofinflation (rising prices systemically) coinciding with a deflation caused by the contraction in the
TOTAL available money supply
(5) Collapse in government / rule of law causes wealth to shift and concentrate in tangible assets
(Flight to quality) that survives the transition to a new government and monetary system
(a) This is normally associated with a collapse in the legal tender status of money wherebygovernment
no longer accepts its own currency in payment for taxes
(i) As was the case in Rome
(ii) Japan constantly demonetized previous currency or devalued it by a factor of 10 causing wealthto
hoard in tangible assets and barter to emerge as rice displaced coins for 600 years because ofdevaluation
by government.
Supply of and Demand for Money:

Monetary theory develops the link between money supply and other macroeconomic variables,including
the price level and output (GDP). In this chapter we begin with competing theories ofmoney demand and
some empirical evidence about the behavior of money demand.
The Quantity Theory of Money
This theory, developed by the classical economists over 100 years ago, related the amount ofmoney in
the economy to nominal income. Economist Irving Fisher is given credit for thedevelopment of this
theory. It begins with an identity known as the equation of exchange:
MV = PY
Where M is the quantity of money, P is the price level, and Y is aggregate output (and
aggregateincome). V is velocity, which serves as the link between money and output. Velocity is the
numberof times in a year that a dollar is used to purchased goods and services.
The equation of exchange is an identity because it must be true that the quantity of money, timeshow
many times it is used to buy goods equals the amount of goods times their price.
To move towards the quantity theory of money
Fisher makes two key assumptions:

1. Fisher viewed velocity as constant in the short run. This is because he felt that velocity is affected by
institutions and technology that change slowly over time.
2. Fisher, like all classical economists, believed that flexible wages and prices guaranteed output, Y,
to be at its full-employment level, so it was also constant in the short run.
Putting these two assumptions together let’s look again at the equation of exchange:
MV = PY
If both V and Y are constant, then changes in M must cause changes in P to preserve the
equalitybetween MV and PY. This is the quantity theory of money: a change in the money supply, M,
results in an equal percentage change in the price level P.
We can further modify this relationship by dividing both sides by V:
M = (1/V) x PY
Since V is constant we can replace (1/V) with some constant, k, and when the money market is in
equilibrium, Md = M. So our equation becomes
Md = k x PY the quantity theory of money, money demand is a function of income and does not depend
on interest rates.
Central Banking: Functions:

A Central Bank is defined in terms of its functions and as per Vera Smith, “The primary definitionof
Central Banking is a banking system in which a single bank has either complete control or aresiduary
monopoly of note issue.”
As per Sayers, the Central Bank “Is the organ of Government that undertakes the major
financialoperations of the government and by its conduct of these operations and by other
means,influences the behavior of financial institutions so as to support the economic policy of
thegovernment.”
The broadest definition has been given by Economist De Knock and as per him a Central Bank is
“A Bank which constitutes the apex of the monetary and banking structure of its country andwhich
performs as best as it can in the national economic interest.
Functions of a Central Bank:

Majority of Economists has accepted the following functions to be performed by a Central Bankand it is
been framed by the economist De Knock.
1. Regulator of Currency:
The central bank is the issue bank and it has a monopoly note issue. Notes issued by it flows aslegal
tender money.
The issue department issues notes and coins to commercial banks and coins are manufactured inthe
government mint but are placed into flow through the central bank.
Various Central banks had been adopting varied modes of note issue in various nations. Thecentral
bank is obligatory by statute to hold a specified volume of gold and foreign securitiesversus the notes
issue.
In few nations, the quantity of gold and foreign securities abides a fixed proportion amidst 30 to
45percent of the total notes issued.
In few other nations, a minimum specified quantity of gold and foreign currencies is obligatory tobe
kept against note issue by the Central Bank.
2. Banker, Fiscal Agent and Adviser to the Administration:
In general, Central Bank performs as bankers, fiscal agents and advisers to their corresponding lawof
administration. As a banker to the law of administration, the central bank holds the depositinvestment of
the central and state governments and makes spending on behalf of the law ofadministration. And hence,
however, it denies paying interest on government deposit investments.
It purchases and sells foreign currencies on behalf of the law of administration.
It holds the inventories of gold of the law of administration and thus it is the guardian
ofadministration’s finance and affluence.
As a fiscal agent, the central bank makes short term loans to law of administration for a term
notmore than 90 days.
As an adviser, the central bank advises government on fiscal and money matters as
protecting,devaluation and revaluation, inflation or deflation of the currency, balance of payments,
deficitfinancing etc.
3. Guarding of Cash Reserves of Commercial Banks:
Commercial banks are necessitated by law to keep reserves equal to a certain percentage of bothtime
and demand deposits liabilities with the central bank.
It is on the origin of these reserves that the central bank shifts funds from one bank to another
tomake possible the clearing of cheques.
Thus the central bank performs as the guardian of the cash reserves of commercial banks
andfacilitates in making feasible their transactions.
Other functions:
1. Monopoly of note issue:
Note issue primarily is the main function of a central bank in every country. These days, in all
thecountries where there is a central bank generally it has got the monopoly of the sole right of
noteissue. In the beginning this was not the function of central bank, but gradually all the central
bankgas acquires this function.
There are many advantages of the note issue by central banks some important ones are as follow:
1. Central bank controls the credit creating power of commercial bank. By controlling theamount of
currency in circulation, the volume of credit can be controlled to quite a large extent.
2. People have more confidence in the currency issued by the control bank because it has theprotection
and recognition of the government.
3. In the event of monopoly of note issue of central bank, there will be uniformity in the currencysystem
in the country.
4. The currency of the country will be flexible if the central bank of the country has themonopoly of note
issue because central bank can bring about changes very early in the volume ofpaper money according
to the needs of business, industry and messes.
5. The system of note issue has some advantages. If the central bank of the country has themonopoly of
note issue, all such advantages will accrue to the government.
2. Bankers, Agent and Adviser to the Government:
As banker to the government, central bank provides all those service and facilities to thegovernment
which public gets from the ordinary banks. It operates the account of the publicenterprise. It mangers
government departmental undertaking and government funds and wherethere is a need gives loan to the
government. From time to time, central bank advice thegovernment on monetary, banking and financial
matters.
3. Custodian of Cash Reserve of Commercial Bank:
Central bank is the bank of banks. This signifies that it has the same relationship with thecommercial
banks in the country that they gave with their customers. It provides security to theircash reserves, give
them loan at the time of need, gives them advice on financial and economicmatter and work as clearing
house among various members bank.
4. Custodian of Nation’s Reserve of International:
Central bank is the custodian of the foreign currency obtained from various countries. This hasbecome
an important function of central bank. These days, because with its help it can stabilize theexternal value
of the currency.
5. Lender of the Last Resort:
Central bank works as lender of the last resort for commercial banks because in the time of need
itprovides them financial assistance and accommodation. Whenever a commercial bank facesfinancial
crisis, central bank as lender of the last resort comes to its rescue by advancing loans andthe bank is
saved from being failed.
6. Clearing House Function:
All commercial bank have their accounts with the central bank. Therefore, central bank settles themutual
transactions of banks and thus saves all banks controlling each other individually forsetting their
individual transaction.
7. Credit Control:
These days, the most important function of a central bank is to control the volume of credit forbringing
about stability in the general price level and accomplishing various other socio economicobjectives. The
significance of this function has increased so much that for property understandingit. The central bank
has acquired the rights and powers of controlling the entire banking.
A central bank can adopt various quantitative and qualitative methods for credit control such asbank
rate, open market operation, changes in reserve ratio selective controls, moral situation etc.
Other Functions:
Besides the 7 functions explained above, central banks perform many other functions that are as
Follows:
8. Collection of Data
Central banks in almost all the countries collects statistical data regularly relating to economicaspects of
money, credit, foreign exchange, banking etc. from time to time, committees andcommission are
appointed for studying various aspects relating to the aforesaid problem.
9. Central Banking in Developing Countries
The basic problem of underdeveloped countries is the problem of lack of capital formation whosemain
causes are lack of saving and investment. Therefore, central bank can play an important roleby
promoting capital formation through mobilizing saving s and encouraging investment
Credit Control through Monetary Policy:

1. Bank Rate Policy (BRP):
The Bank Rate Policy (BRP) is a very important technique used in the monetary policy forinfluencing
the volume or the quantity of the credit in a country. The bank rate refers to rate atwhich the central bank
(i.e RBI) rediscounts bills and prepares of commercial banks or providesadvance to commercial banks
against approved securities. It is "the standard rate at which thebank is prepared to buy or rediscount
bills of exchange or other commercial paper eligible forpurchase under the RBI Act". The Bank Rate
affects the actual availability and the cost of thecredit. Any change in the bank rate necessarily brings
out a resultant change in the cost of creditavailable to commercial banks. If the RBI increases the bank
rate than it reduce the volume ofcommercial banks borrowing from the RBI. It deters banks from further
credit expansion as itbecomes a more costly affair. Even with increased bank rate the actual interest rates
for a shortterm lending go up checking the credit expansion. On the other hand, if the RBI reduces the
bankrate, borrowing for commercial banks will be easy and cheaper. This will boost the creditcreation.
Thus any change in the bank rate is normally associated with the resulting changes inthe lending rate and
in the market rate of interest. However, the efficiency of the bank rate as atool of monetary policy
depends on existing banking network, interest elasticity of investmentdemand, size and strength of the
money market, international flow of funds, etc.
2. Open Market Operation (OMO):
The open market operation refers to the purchase and/or sale of short term and long term securitiesby the
RBI in the open market. This is very effective and popular instrument of the monetarypolicy. The OMO
is used to wipe out shortage of money in the money market, to influence theterm and structure of the
interest rate and to stabilize the market for government securities, etc. It isimportant to understand the
working of the OMO. If the RBI sells securities in an open market,commercial banks and private
individuals buy it. This reduces the existing money supply as moneygets transferred from commercial
banks to the RBI. Contrary to this when the RBI buys thesecurities from commercial banks in the open
market, commercial banks sell it and get back themoney they had invested in them. Obviously the stock
of money in the economy increases. Thisway when the RBI enters in the OMO transactions, the actual
stock of money gets changed.
Normally during the inflation period in order to reduce the purchasing power, the RBI sellssecurities and
during the recession or depression phase she buys securities and makes more moneyavailable in the
economy through the banking system. Thus under OMO there is continuousbuying and selling of
securities taking place leading to changes in the availability of credit in aneconomy. However there are
certain limitations that affect OMO via; underdeveloped securitiesmarket, excess reserves with
commercial banks, indebtedness of commercial banks, etc.
3. Variation in the Reserve Ratios (VRR):
The Commercial Banks have to keep a certain proportion of their total assets in the form of
CashReserves. Some part of these cash reserves are their total assets in the form of cash. Apart of
thesecash reserves are also to be kept with the RBI for the purpose of maintaining liquidity
andcontrolling credit in an economy. These reserve ratios are named as Cash Reserve Ratio (CRR)and a
Statutory Liquidity Ratio (SLR). The CRR refers to some percentage of commercial bank'snet demand
and time liabilities which commercial banks have to maintain with the central bankand SLR refers to
some percent of reserves to be maintained in the form of gold or foreignsecurities. In India the CRR by
law remains in between 3-15 percent while the SLR remains inbetween 25-40 percent of bank reserves.
Any change in the VRR (i.e. CRR + SLR) brings out achange in commercial banks reserves positions.
Thus by varying VRR commercial banks lendingcapacity can be affected. Changes in the VRR helps in
bringing changes in the cash reserves ofcommercial banks and thus it can affect the banks credit creation
multiplier. RBI increases VRRduring the inflation to reduce the purchasing power and credit creation.
But during the recession ordepression it lowers the VRR making more cash reserves available for credit
expansion.
(B) Qualitative Instruments or Selective Tools:
The Qualitative Instruments are also known as the Selective Tools of monetary policy. Thesetools are
not directed towards the quality of credit or the use of the credit. They are used fordiscriminating
between different uses of credit. It can be discrimination favoring export overimport or essential over
non-essential credit supply. This method can have influence over thelender and borrower of the credit.
The Selective Tools of credit control comprises of followinginstruments.
1. Fixing Margin Requirements:
The margin refers to the "proportion of the loan amount which is not financed by the bank". Or inother
words, it is that part of a loan which a borrower has to raise in order to get finance for hispurpose. A
change in a margin implies a change in the loan size. This method is used to encouragecredit supply for
the needy sector and discourage it for other non-necessary sectors. This can bedone by increasing
margin for the non-necessary sectors and by reducing it for other needy sectors.
Example: - If the RBI feels that more credit supply should be allocated to agriculture sector, then itwill
reduce the margin and even 85-90 percent loan can be given.
2. Consumer Credit Regulation:
Under this method, consumer credit supply is regulated through hire-purchase and installment saleof
consumer goods. Under this method the down payment, installment amount, loan duration, etcis fixed in
advance. This can help in checking the credit use and then inflation in a country.
3. Publicity:
This is yet another method of selective credit control. Through it Central Bank (RBI) publishesvarious
reports stating what is good and what is bad in the system. This published information canhelp
commercial banks to direct credit supply in the desired sectors. Through its weekly andmonthly
bulletins, the information is made public and banks can use it for attaining goals ofmonetary policy.
4. Credit Rationing:
Central Bank fixes credit amount to be granted. Credit is rationed by limiting the amountavailable for
each commercial bank. This method controls even bill rediscounting. For certainpurpose, upper limit of
credit can be fixed and banks are told to stick to this limit. This can help
in lowering banks credit expoursure to unwanted sectors.
5. Moral Suasion:
It implies to pressure exerted by the RBI on the indian banking system without any strict action
forcompliance of the rules. It is a suggestion to banks. It helps in restraining credit during
inflationaryperiods. Commercial banks are informed about the expectations of the central bank through
amonetary policy. Under moral suasion central banks can issue directives, guidelines andsuggestions for
commercial banks regarding reducing credit supply for speculative purposes.
6. Control through Directives:Under this method the central bank issue frequent directives to
commercial banks. These directivesguide commercial banks in framing their lending policy. Through a
directive the central bank caninfluence credit structures, supply of credit to certain limit for a specific
purpose. The RBI issuesdirectives to commercial banks for not lending loans to speculative sector such
as securities, etcbeyond a certain limit.
7. Direct Action:
Under this method the RBI can impose an action against a bank. If certain banks are not adhering
to the RBI's directives, the RBI may refuse to rediscount their bills and securities. Secondly, RBI
may refuse credit supply to those banks whose borrowings are in excess to their capital. Central
bank can penalize a bank by changing some rates. At last it can even put a ban on a particular
bank if it does not follow its directives and work against the objectives of the monetary policy.
These are various selective instruments of the monetary policy. However the success of these
tools is limited by the availability of alternative sources of credit in economy, working of the
Non-Banking Financial Institutions (NBFIs), profit motive of commercial banks and
undemocratic nature off these tools. But a right mix of both the general and selective tools of
monetary policy can give the desired results.
Money markets and capital markets:
As money became a commodity, the money market became a component of the financial markets for
assets involved in short-term borrowing, lending, buying and selling with original maturities of one year
or less. Trading in the money markets is done over the counter and is wholesale. Various instruments
exist, such as Treasury bills, commercial paper, bankers' acceptances, deposits, certificates of deposit,
bills of exchange, repurchase agreements, federal funds, and short-lived mortgage-, and asset-backed
securities.[1] It provides liquidity funding for the global financial system. Money markets and capital
markets are parts of financial markets. The instruments bear differing maturities, currencies, credit risks,
and structure. Therefore they may be used to distribute the exposure.
Commercial Banking: Functions:
According to Prof. Sayers, "A bank is an institution whose debts are widely accepted in settlement
of other people's debts to each other." In this definition Sayers has emphasized the transactions
from debts which are raised by a financial institution.
According to the Indian Banking Company Act 1949, "A banking company means any company
which transacts the business of banking. Banking means accepting for the purpose of lending of
investment of deposits of money from the public, payable on demand or other wise and withdraw
able by cheque, draft or otherwise."
Functions of Commercial Banks:
Commercial bank being the financial institution performs diverse types of functions. It satisfies
thefinancial needs of the sectors such as agriculture, industry, trade, communication, etc. That
meansthey play very significant role in a process of economic social needs. The functions performed
bybanks are changing according to change in time and recently they are becoming customer centricand
widening their functions. Generally the functions of commercial banks are divided into twocategories
viz. primary functions and the secondary functions. The following chart simplifies thefunctions of
banks.
Primary Functions of Commercial Banks:
Commercial Banks performs various primary functions some of them are given below :
1. Accepting Deposits: Commercial bank accepts various types of deposits from public especiallyfrom
its clients. It includes saving account deposits, recurring account deposits, fixed deposits, etc.
These deposits are payable after a certain time period.
2. Making Advances: The commercial banks provide loans and advances of various forms. Itincludes an
over draft facility, cash credit, bill discounting, etc. They also give demand anddemand and term loans
to all types of clients against proper security.
3. Credit creation: It is most significant function of the commercial banks. While sanctioning a loan
to a customer, a bank does not provide cash to the borrower Instead it opens a deposit account
from where the borrower can withdraw. In other words while sanctioning a loan a bank
automatically creates deposits. This is known as a credit creation from commercial bank.
Secondary Functions of Commercial Banks:
Along with the primary functions each commercial bank has to perform several secondary
functions too. It includes many agency functions or general utility functions. The secondary
functions of commercial banks can be divided into agency functions and utility functions.
Agency Functions : Various agency functions of commercial banks are
1. To collect and clear cheque, dividends and interest warrant.
2. To make payment of rent, insurance premium, etc.
3. To deal in foreign exchange transactions.
4. To purchase and sell securities.
5. To act as trusty, attorney, correspondent and executor.
6. To accept tax proceeds and tax returns.
General Utility Functions: The general utility functions of the commercial banks include
1. To provide safety locker facility to customers.
2. To provide money transfer facility.
3. To issue traveler’s cheque.
4. To act as referees.
5. To accept various bills for payment e.g. phone bills, gas bills, water bills, etc.
6. To provide merchant banking facility.
7. To provide various cards such as credit cards, debit cards, Smart cards, etc.
Organization and Operations (Credit Creation):The creation of credit or deposits is one of the most
vital operations of the commercial banks. Similar to other corporations, banks aim at earnings profits.
For this intention, they accept cash in demand deposits and advance loans on credit to customers. When
a bank advances funds, it does not pay the amount in currency notes. However, it introduces a current
account in the name of the investor and lets him to withdraw the necessary amount by cheques. By this
way, banks create deposits or credit.
Demand deposits mount in two ways:
1. When the customer deposits currency with commercial banks, and

2. When banks advance loans, discount bills, provide overdraft facilities and make deposit
investments through bonds and securities.
The first type of demand deposits is termed “primary deposits”. Banks play a passive play in introducing
them.
The second type of demand deposits is termed as “derivative deposits”. Banks actively create deposits.
As per Withers,
Banks can generate credit by introducing a deposit, every time they advance a loan.
o This is for the reason that every time a loan is sanctioned, imbursement is made through cheques
by the customers.
o All such imbursements are regulated through the clearing house.
o As long as the loan is due, a deposit of that amount remains pending in the books of the bank.
o Thus every loan creates a deposit; however, this is an overstated and tremendous outlook.
o They go to the contra intense.

o They hold that banks cannot create money out of skinny air.
o They can lend only what they have in cash.
o Hence, they cannot and do not create funds.
The Progression of Credit Creation:
A bank can lend parity to its surplus reserves. However, the whole banking system can lend and create
credit up-till a multiple of its nominal surplus funds deposits.
The deposit multiplier is based upon the required reserve which is the foundation of credit creation.
Metaphorically, the required reserve ratio is given as:
RRr = RR
D
Or RR = RRr x D
Where RR is the required cash reserves with banks, RRr is the required reserve ratio and D is the
demand deposits of banks.
To represent that D is based on RR and RRr, we have divide both sides equally by RRr like the
following:
RR = RRr x D
RRr RRr
Or RR = D
RRr
Or 1 = D
RRr RR
Or D = 1 x RR
RRr
Where 1 / RRr, is the reciprocal of the percentage ratio and is termed as the deposit expansion
multiplier. It ascertains the bounds of the deposit expansion of a bank.
The optimum amount of demand deposits which the banking system can support with any specified
value of RR is by applying the multiplier to RR.
Taking the original variation in the amount of deposits (ΔD) and in cash reserves (ΔRR), it follows from
any specified percentage of RRr.
ΔD = RR x 1
RRr
Non-Banking Financial Institutions: Meaning:
A non-bank financial institution (NBFI) is a financial institution that does not have a full banking
license or is not supervised by a national or international banking regulatory agency. NBFIs
facilitate bank-related financial services, such as investment, risk pooling, contractual savings, and
brokering. Examples of these include insurance firms, pawn shops, cashier's check issuers, check
cashing locations, payday lending, currency exchanges, and microloan organizations. Alan
Greenspan has identified the role of NBFIs in strengthening an economy, as they provide "multiple
alternatives to transform an economy's savings into capital investment [which] act as backup
facilities should the primary form of intermediation fail."
Role:
NBFIs supplement banks by providing the infrastructure to allocate surplus resources to
individuals and companies with deficits. Additionally, NBFIs also introduces competition in the
provision of financial services. While banks may offer a set of financial services as a packaged
deal, NBFIs unbundle and tailor these service to meet the needs of specific clients. Additionally,
individual NBFIs may specialize in one particular sector and develop an informational advantage.
Through the process of unbundling, targeting, and specializing, NBFIs enhances competition
within the financial services industry.
Growth:
Some research suggests a high correlation between a financial development and economic growth.
Generally, a market-based financial system has better-developed NBFIs than a bank-based system,
which is conducive for economic growth.
Stability:
A multi-faceted financial system that includes non-bank financial institutions can protect
economies from financial shocks and enable speedy recovery when these shocks happen. NBFIs
provide “multiple alternatives to transform an economy's savings into capital investment,
serve as backup facilities should the primary form of intermediation fail.”
However, in the absence of effective financial regulations, non-bank financial institutions can
actually exacerbate the fragility of the financial system.
Since not all NBFIs are heavily regulated, the shadow banking system constituted by these
institutions could wreak potential instability. In particular, CIVs, hedge funds, and structured
investment vehicles, up until the 2007-2012 global financial crisis, were entities that focused NBFI
supervision on pension funds and insurance companies, but were largely overlooked by regulators.
Because these NBFIs operate without a banking license, in some countries their activities are
largely unsupervised, both by government regulators and credit reporting agencies. Thus, a large
NBFI market share of total financial assets can easily destabilize the entire financial system. A
prime example would be the 1997 Asian financial crisis, where a lack of NBFI regulation fueled a
credit bubble and asset overheating. When the asset prices collapsed and loan defaults skyrocketed,
the resulting credit crunch led to the 1997 Asian financial crisis that left most of Southeast Asia
and Japan with devalued currencies and a rise in private debt.
Due to increased competition, established lenders are often reluctant to include NBFIs into existing
credit-information sharing arrangements. Additionally, NBFIs often lack the technological
capabilities necessary to participate in information sharing networks. In general, NBFIs also
contribute less information to credit-reporting agencies than do banks
Money Markets and Capital Markets: Meaning and Instruments:

As money became a commodity, the money market became a component of the financial markets
for assets involved in short-term borrowing, lending, buying and selling with original maturities of
one year or less. Trading in the money markets is done over the counter and is wholesale.
Variousinstruments exist, such as Treasury bills, commercial paper, bankers' acceptances,
deposits,certificates of deposit, bills of exchange, repurchase agreements, federal funds, and short-
livedmortgage-, and asset-backed securities. It provides liquidity funding for the global financialsystem.
Money markets and capital markets are parts of financial markets. The instruments beardiffering
maturities, currencies, credit risks, and structure. Therefore they may be used to distributethe exposure.
Participants:
The money market consists of financial institutions and dealers in money or credit who wish toeither
borrow or lend. Participants borrow and lend for short periods of time, typically up tothirteen months.
Money market trades in short-term financial instruments commonly called"paper." This contrasts with
the capital market for longer-term funding, which is supplied by bondsand equity.
The core of the money market consists of interbank lending--banks borrowing and lending to eachother
using commercial paper, repurchase agreements and similar instruments. These instrumentsare often
benchmarked to (i.e. priced by reference to) the London Interbank Offered Rate (LIBOR)for the
appropriate term and currency.
Finance companies typically fund themselves by issuing large amounts of asset-backedcommercial
paper (ABCP) which is secured by the pledge of eligible assets into an ABCP conduit.
Examples of eligible assets include auto loans, credit card receivables, residential/commercialmortgage
loans, mortgage-backed securities and similar financial assets. Certain large corporationswith strong
credit ratings, such as General Electric, issue commercial paper on their own credit.
Other large corporations arrange for banks to issue commercial paper on their behalf viacommercial
paper lines.
In the United States, federal, state and local governments all issue paper to meet funding needs.
States and local governments issue municipal paper, while the US Treasury issues Treasury bills tofund
the US public debt:
Trading companies often purchase bankers' acceptances to be tendered for payment to
overseassuppliers.
Retail and institutional money market funds
Banks
Central banks
Cash management programs
Merchant banks
Functions of the money market:
Transfer of large sums of money
Transfer from parties with surplus funds to parties with a deficit
Allow governments to raise funds
Help to implement monetary policy
Determine short-term interest rates
Common money market instruments:
Certificate of deposit - Time deposit, commonly offered toCommon money market instruments:
Certificate of deposit - Time deposit, commonly offered to consumers by banks, thrift
institutions,and credit unions.
Repurchase agreements - Short-term loans—normally for less than two weeks and frequently forone
day—arranged by selling securities to an investor with an agreement to repurchase them at afixed price
on a fixed date.
Commercial paper - short term usanse promissory notes issued by company at discount to facevalue
and redeemed at face value
Eurodollar deposit - Deposits made in U.S. dollars at a bank or bank branch located outside the
United States.
Federal agency short-term securities - (in the U.S.). Short-term securities issued by
governmentsponsored enterprises such as the Farm Credit System, the Federal Home Loan Banks and
theFederal National Mortgage Association.
Federal funds - (in the U.S.). Interest-bearing deposits held by banks and other depositoryinstitutions
at the Federal Reserve; these are immediately available funds that institutions borrow
or lend, usually on an overnight basis. They are lent for the federal funds rate.
Municipal notes - (in the U.S.). Short-term notes issued by municipalities in anticipation of
taxreceipts or other revenues.
Treasury bills - Short-term debt obligations of a national government that are issued to mature
inthree to twelve months.
Money funds - Pooled short maturity, high quality investments which buy money market
securitieson behalf of retail or institutional investors.
Foreign Exchange Swaps - Exchanging a set of currencies in spot date and the reversal of
theexchange of currencies at a predetermined time in the future.
Capital market:
Capital markets are financial markets for the buying and selling of long-term debt- or
equitybackedsecurities. These markets channel the wealth of savers to those who can put it to long-
termproductive use, such as companies or governments making long-term investments.
Financialregulators, such as the UK's Bank of England (BoE) or the U.S. Securities and Exchange
Commission (SEC), oversee the capital markets in their jurisdictions to protect investors againstfraud,
among other duties.
Modern capital markets are almost invariably hosted on computer-based electronic tradingsystems; most
can be accessed only by entities within the financial sector or the treasurydepartments of governments
and corporations, but some can be accessed directly by the public.
There are many thousands of such systems, most only serving only small parts of the overallcapital
markets. Entities hosting the systems include stock exchanges, investment banks, andgovernment
departments. Physically the systems are hosted all over the world, though they tend tobe concentrated in
financial centers like London, New York, and Hong Kong. Capital markets aredefined as markets in
which money is provided for periods longer than a year.
A key division within the capital markets is between the primary markets and secondary markets.
In primary markets, new stock or bond issues are sold to investors, often via a mechanism known
as underwriting. The main entities seeking to raise long-term funds on the primary capital markets
are governments (which may be municipal, local or national) and business enterprises
(companies). Governments tend to issue only bonds, whereas companies often issue either equity
or bonds. The main entities purchasing the bonds or stock include pension funds, hedge funds,
sovereign wealth funds, and less commonly wealthy individuals and investment banks trading on
their own behalf. In the secondary markets, existing securities are sold and bought among investors
or traders, usually on a securities exchange, over-the-counter, or elsewhere. The existence of
secondary markets increases the willingness of investors in primary markets, as they know they arelikely
to be able to swiftly cash out their investments if the need arises.
A second important division falls between the stock markets (for equity securities, also known as
shares, where investors acquire ownership of companies) and the bond markets (where investors
become creditors).
The money markets are used for the raising of short term finance, sometimes for loans that are
expected to be paid back as early as overnight. Whereas the capital markets are used for the raising
of long term finance, such as the purchase of shares, or for loans that are not expected to be fully
paid back for at least a year.
Funds borrowed from the money markets are typically used for general operating expenses, to
cover brief periods of illiquidity. For example a company may have inbound payments from
customers that have not yet cleared, but may wish to immediately pay out cash for its payroll.
When a company borrows from the primary capital markets, often the purpose is to invest in
additional physical capital goods, which will be used to help increase its income. It can take many
months or years before the investment generates sufficient return to pay back its cost, and hence
the finance is long term
Together, money markets and capital markets form the financial markets as the term is narrowly
understood. The capital market is concerned with long term finance. In the widest sense, it consist
of a series of channels through which the saving of the community are made available for
industrial and commercial enterprises and public authorities.
POLITICAL SCIENCE-II (209)
POLITICAL SCIENCE
BALLB 209
UNIT 1
DEMOCRACY
Democracy, or democratic government, is "a system of government in which all the people of a state or
polity ... are involved in making decisions about its affairs, typically by voting to elect representatives to
a parliament or similar assembly," as defined by the Oxford English Dictionary. Democracy is further
defined as (a:) "government by the people; especially : rule of the majority (b:) "a government in which
the supreme power is vested in the people and exercised by them directly or indirectly through a system
of representation usually involving periodically held free elections."
According to political scientist Larry Diamond, it consists of four key elements: (a) A political system
for choosing and replacing the government through free and fair elections; (b) The active participation of
the people, as citizens, in politics and civic life; (c) Protection of the human rights of all citizens, and (d)
A rule of law, in which the laws and procedures apply equally to all citizens.
The term originates from the Greek (dēmokratía) "rule of the people", which was found from δῆμος
(dêmos) "people" and κράτος (krátos) "power" or "rule", in the 5th century BC to denote the political
systems then existing in Greek city-states, notably Athens; the term is an antonym to ἀριστοκρατία
(aristokratía) "rule of an elite". While theoretically these definitions are in opposition, in practice the
distinction has been blurred historically. The political system of Classical Athens, for example, granted
democratic citizenship to an elite class of free men and excluded slaves and women from political
participation. In virtually all democratic governments throughout ancient and modern history,
democratic citizenship consisted of an elite class until full enfranchisement was won for all adult citizens
in most modern democracies through the suffrage movements of the 19th and 20th centuries. The
English word dates to the 16th century, from the older Middle French and Middle Latin equivalents.
Democracy contrasts with forms of government where power is either held by an individual, as in an
absolute monarchy, or where power is held by a small number of individuals, as in an oligarchy.
Nevertheless, these oppositions, inherited from Greek philosophy, are now ambiguous because
contemporary governments have mixed democratic, oligarchic, and monarchic elements. Karl Popper
defined democracy in contrast to dictatorship or tyranny, thus focusing on opportunities for the people to
control their leaders and to oust them without the need for a revolution.
FEDERAL FORM OF GOVERNMENT
The Indian federal system of today has many such characteristics which are essential for a federal polity.
The main federal features of the Indian Constitution are as follows:
1. Written Constitution:
The Indian Constitution is a written document containing 395 Articles and 12 schedules, and therefore,
fulfils this basic requirement of a federal government. In fact, the Indian Constitution is the most
elaborate Constitution of the world.
2. Supremacy of the Constitution:
India’s Constitution is also supreme and not the hand-made of either the Centre or of the States. If for
any reason any organ of the State dares to violate any provision of the Constitution, the courts of laws
are there to ensure that dignity of the Constitution is upheld at all costs.
3. Rigid Constitution:
The Indian Constitution is largely a rigid Constitution. All the provisions of the Constitution concerning
Union-State relations can be amended only by the joint actions of the State Legislatures and the Union
Parliament. Such provisions can be amended only if the amend-ment is passed by a two-thirds majority
of the members present and voting in the Parliament (which must also constitute the absolute majority of
the total membership) and ratified by at least one-half of the States.
4. Division of Powers:
In a federation, there should be clear division of powers so that the units and the centre are required to
enact and legislate within their sphere of activity and none violates its limits and tries to encroach upon
the functions of others. This requisite is evident in the Indian Constitution.
The Seventh Schedule contains three Legislative Lists which enumerate subjects of administration, viz.,
Union, State and Concurrent Legislative Lists. The Union List consisted of 97 subjects, the more
important of which are defence, foreign affairs, railways, posts and tele-graphs, currency, etc.
The State List consisted of 66 subjects, including, inter-alia public order, police, administration of
justice, public health, education, agriculture etc. The Concurrent List embraced 47 subjects including
criminal law, marriage, divorce, bankruptcy, trade unions, elec-tricity, economic and social planning,
etc.
The Union Government enjoys exclusive power to legislate on the subjects mentioned in the Union List.
The State Governments have full authority to legislate on the subjects of the State List under normal
circumstances. And both the Centre and the State can’t legislate on the subjects mentioned in the
Concurrent List, The residuary powers have been vested in the Central Government.
5. Independent Judiciary:
In India, the Constitution has provided for a Supreme Court and every effort has been made to see that
the judiciary in India is independent and supreme. The Supreme Court of India can declare a law as
unconstitutional or ultra Vires, if it contravenes any provisions of the Constitution. In order to ensure the
impartiality of the judiciary, our judges are not remov-able by the Executive and their salaries cannot be
curtailed by Parliament.
6. Bicameral Legislature:
A bicameral system is considered essential in a federation because it is in the Upper House alone that the
units can be given equal representation. The Constitution of India also provides for a bicameral
Legislature at the Centre consisting of Lok Sabha and Rajya Sabha.
While the Lok Sabha consists of the elected representatives of people, the Rajya Sabha mainly consists
of representatives elected by the State Legislative Assemblies. However, all the States have not been
given equal representation in the Rajya Sabha.
7. Dual Government Polity:
In a federal State, there are two governments—the national or federal government and the government
of each component unit. But in a unitary State there is only one government, namely the national
government. So, India, as a federal system, has a Central and State Government.
CONFEDERAL AND QUASI FEDERAL GOVERNMENT

A confederation (also known as a confederacy or league) is a union of sovereign states, united for
purposes of common action often in relation to other states. Usually created by treaty, confederations of
states tend to be established for dealing with critical issues, such as defence, foreign relations, internal
trade or currency, with the general government being required to provide support for all its members.
Confederalism represents a main form of inter-governmentalism, this being defined as ‘any form of
interaction between states which takes place on the basis of sovereign independence'.
The nature of the relationship among the member states constituting a confederation varies considerably.
Likewise, the relationship between the member states and the general government, and the distribution
of powers among them is highly variable. Some looser confederations are similar to international
organisations. Other confederations with stricter rules may resemble federal systems.
Since the member states of a confederation retain their sovereignty, they have an implicit right of
secession. The political philosopher Emmerich Vattel observed: ‘Several sovereign and independent
states may unite themselves together by a perpetual confederacy without each in particular ceasing to be
a perfect state. … The deliberations in common will offer no violence to the sovereignty of each
member’.
Under a confederal arrangement, in contrast with a federal one, the central authority is relatively weak.
Decisions made by the general government in a unicameral legislature, a council of the member states,
require subsequent implementation by the member states to take effect. They are therefore not laws
acting directly upon the individual, but instead have more the character of inter-state agreements.[5]
Also, decision-making in the general government usually proceeds by consensus (unanimity) and not by
majority, which makes for slow and inefficient government. These problematic features, limiting the
effectiveness of the union, mean that political pressure tends to build over time for the transit ion to a
federal system of government, as happened in the American, Swiss, German and European cases of
regional integration.
Constitution of India has not described India as a federation. Article 1 of the Constitution describes
India as a “Union of States.” This means, India is a union comprising of various States which are
integral parts of it. The Indian Union is not destructible. Here, the States can not break away from the
union. They do not have the right to secede from the union. In a true federation, the constituting units or
the States have the freedom to come out of the union.
India is not a true federation. It combines the features of a federal government and the features of a
unitary government which can also be called the non-federal features. Because of this, India is regarded
as a semi-federal state. . The Supreme Court of India also describes it as “a federal structure with a
strong bias towards the Centre”.
The Centre exercises control over the States. The States have to respect the laws made by the central
government and can not make any law on matters on which there is already a central law. The centre can
also give directions to the States which they must carry out.
In a true federation, the upper house of the legislature has equal representation from the constituting
units or the States. But in our Rajya Sabha, the States do not have equal representation. The populous
States have more representatives in the Rajya Sabha than the less populous States.
The upper house of the Indian Parliament, that is, the Rajya Sabha is not properly representative of all
the States of Indian union. In India, the existence of a State or a federating unit depends upon the
authority of the Centre. The boundary of a State can be changed by created out of the existing States.
In a true federal state, citizens are given dual citizenship. First, they are the citizens of their respective
provinces or States and then they are the citizens of the federation. In India however, the citizens enjoy
single citizenship, i.e., Indian citizenship or citizenship of the country as a whole.
PARLIAMENTARY FORM OF GOVERNMENT

A parliamentary system is a system of democratic governance of a state where the executive branch
derives its democratic legitimacy from legislature (parliament) and is also held accountable to that
legislature. In a parliamentary system, the head of state is normally a different person from the head of
government. This is in contrast to a presidential system in a democracy, where the head of state often is
also the head of government, and most importantly, the executive branch does not derive its democratic
legitimacy from the legislature.
Countries with parliamentary systems may be constitutional monarchies, where a monarch is the head of
state while the head of government is almost always a member of the legislature (such as the United
Kingdom, Sweden, Spain and Japan), or parliamentary republics, where a mostly ceremonial president is
the head of state while the head of government is regularly from the legislature (such as Ireland,
Germany, India and Italy). In a few parliamentary republics, such as Botswana, South Africa and
Suriname, as well as German states, the head of government is also head of state, but is elected by and is
answerable to the legislature.
Characteristics:
A parliamentary system may use bicameralism with two chambers of parliament (or houses): an elected
lower house, and an upper house or Senate which may be appointed or elected by a different mechanism
from the lower house. Another possibility is unicameralism with just one parliamentary chamber.
Scholars of democracy such as Arend Lijphart distinguish two types of parliamentary democracies: the
Westminster and Consensus systems.
The Palace of Westminster in London, United Kingdom. The Westminster system originates from the
British Houses of Parliament.
The Reichstag Building in Berlin, Germany. The Consensus system is used in most of Western
European countries.
The Westminster system is usually found in the Commonwealth of Nations.[4][5][6] These parliaments
tend to have a more adversarial style of debate and the plenary session of parliament is more important
than committees. Some parliaments in this model are elected using a plurality voting system (first past
the post), such as the United Kingdom, Canada, and India, while others use proportional representation,
such as Ireland and New Zealand. The Australian House of Representatives is elected using instant-
runoff voting, while the Senate is elected using proportional representation through single transferable
vote. Regardless of which system is used, the voting systems tend to allow the voter to vote for a named
candidate rather than a closed list.
The Western European parliamentary model (e.g. Spain, Germany) tends to have a more consensual
debating system, and usually has semi-circular debating chambers. Consensus systems have more of a
tendency to use proportional representation with open party lists than the Westminster Model
legislatures. The committees of these Parliaments tend to be more important than the plenary chamber.
Some West European countries' parliaments (e.g. in the Netherlands and Sweden) implement the
principle of dualism as a form of separation of powers. In countries using this system, Members of
Parliament have to resign their place in Parliament upon being appointed (or elected) minister. Ministers
in those countries usually actively participate in parliamentary debates, but are not entitled to vote.
Implementations of the parliamentary system can also differ on the manner of how the prime minister
and government are appointed and as to whether the government needs the explicit approval of the
parliament, rather than just the absence of its disapproval. Some countries such as India also require the
prime minister to be a member of the legislature, though in other countries this only exists as a
convention.
The head of state appoints a prime minister, of their personal choice, without reference to a parliament.
While in practice most prime ministers under the Westminster system (including Australia, Canada,
New Zealand, India and the United Kingdom) are the leaders of the largest party in parliament,
technically the appointment of the prime minister is a prerogative exercised by the monarch, the
governor-general, or the president. No parliamentary vote takes place on who is forming a government,
but since parliament can immediately defeat the government with a motion of no confidence, the head of
state is limited by convention to choosing a candidate who can command the confidence of parliament
and has little or no influence in the decision;
The head of state appoints a prime minister who must gain a vote of confidence within a set time.
Example: Italy, Thailand;
The head of state appoints the leader of the political party with the majority of the seats in the parliament
as prime minister. Example: Greece, where in the case of no party has a majority, then, the leader of the
party with a plurality of seats is given an exploratory mandate to receive the confidence of the
parliament within three days, if this is not possible then the leader of the party with the second highest
seat number is given the exploratory mandate, if this fails then the leader of the third largest party is
given it and so on;
The head of state nominates a candidate for prime minister who is then submitted to parliament for
approval before appointment as prime minister. Example: Spain, where the King sends a nomination to
parliament for approval. Also, Germany where under the German Basic Law (constitution) the
Bundestag votes on a candidate nominated by the federal president. In these cases, parliament can
choose another candidate who then would be appointed by the head of state;
Parliament nominates a candidate who the head of state is then constitutionally obliged to appoint as
prime minister. Example: Japan, where the Emperor appoints the Prime Minister on the nomination of
the Diet. Also, Ireland where the President of Ireland appoints the Taoiseach on the nomination of the
Dáil Éireann;
A public office holder (other than the head of state or their representative) nominates a candidate, who if
approved by parliament is appointed as prime minister. Example: Under the Swedish Instrument of
Government (1974), the power to appoint someone to form a government has been moved from the
monarch to the Speaker of Parliament and the parliament itself. The speaker nominates a candidate, who
is then elected to prime minister (statsminister) by the parliament if an absolute majority of the members
of parliament does not vote no (i.e. he can be elected even if more members of parliament vote No than
Yes);
Direct election by popular vote. Example: Israel, 1996–2001, where the prime minister was elected in a
general election, with no regard to political affiliation.
Furthermore, there are variations as to what conditions exist (if any) for the government to have the right
to dissolve the parliament:
In some countries like Denmark, Malaysia, Australia and New Zealand, the prime minister has the de
facto power to call an election, at will. This was also the case in the United Kingdom until the passage of
the Fixed-term Parliaments Act 2011.
In Israel, parliament may vote in order to call an election or pass a vote of no confidence against the
government.
Other countries only permit an election to be called in the event of a vote of no confidence against the
government, a supermajority vote in favour of an early election or prolonged deadlock in parliament.
These requirements can still be circumvented. For example, in Germany in 2005, Gerhard Schröder
deliberately allowed his government to lose a confidence motion, in order to call an early election.
In Sweden, the government may call a snap election at will, but the newly elected Riksdag is only
elected to fill out the previous Riksdag's term. The last time this option was used was in 1958.
Norway is unique among parliamentary systems in that the Storting always serves the whole of its four-
year term.
The parliamentary system can be contrasted with a presidential system which operates under a stricter
separation of powers, whereby the executive does not form part of, nor is appointed by, the
parliamentary or legislative body. In such a system, parliaments or congresses do not select or dismiss
heads of governments, and governments cannot request an early dissolution as may be the case for
parliaments. There also exists the semi-presidential system that draws on both presidential systems and
parliamentary systems by combining a powerful president with an executive responsible to parliament,
as for example the French Fifth Republic.
Parliamentarism may also apply to regional and local governments. An example is the city of Oslo,
which has an executive council (Byråd) as a part of the parliamentary system.
A few parliamentary democratic nations such as India, Pakistan, Bangladesh etc. have enacted a law
which prohibits floor crossing or switching the party after election process. With this law, the elected
representative have to lose their seat in the Parliament House, if they defy the direction of the party in
any voting.
PRESIDENTIAL FORM OF GOVERNMENT

A presidential system is a system of government where a head of government is also head of state and
leads an executive branch that is separate from the legislative branch. The United States, for instance,
has a presidential system. The executive is elected and often titled "president" and is not responsible to
the legislature and cannot, in normal circumstances, dismiss it. The legislature may have the right, in
extreme cases, to dismiss the executive, often through impeachment. However, such dismissals are seen
as so rare as not to contradict a central tenet of presidentialism, that in normal circumstances using
normal means the legislature cannot dismiss the executive.
The title president has persisted from a time when such person personally presided over the government
body, as with the US President of the Continental Congress, before the executive function was split into
a separate branch of government and could no longer preside over the legislative body.
Presidential systems are numerous and diverse, but the following are generally true:
The executive can veto legislative acts and, in turn, a supermajority of lawmakers may override the veto.
The veto is generally derived from the British tradition of royal assent in which an act of parliament can
only be enacted with the assent of the monarch.
The president has a fixed term of office. Elections are held at regular times and cannot be triggered by a
vote of confidence or other parliamentary procedures. Although in some countries there is an exception,
which provides for the removal of a president who is found to have broken a law.
The executive branch is unipersonal. Members of the cabinet serve at the pleasure of the president and
must carry out the policies of the executive and legislative branches. Cabinet ministers or executive
departmental chiefs are not members of the legislature. However, presidential systems often need
legislative approval of executive nominations to the cabinet, judiciary, and various lower governmental
posts. A president generally can direct members of the cabinet, military, or any officer or employee of
the executive branch, but cannot direct or dismiss judges.
The president can often pardon or commute sentences of convicted criminals.
Countries that feature a presidential system of government are not the exclusive users of the title of
President. For example, a dictator, who may or may not have been popularly or legitimately elected may
be and often is called a president. Likewise, leaders of one-party states are often called presidents. Most
parliamentary republics have presidents, but this position is largely ceremonial; notable examples
include Germany, India, Ireland, Israel and Italy. The title is also used in parliamentary republics with an
executive presidency, and also in semi-presidential systems.
Characteristics:
In a full-fledged presidential system, a president is chosen directly by the people or indirectly by the
winning party to be the head of the executive branch. Presidential governments make no distinction
between the positions of head of state and head of government, both of which are held by the president.
A few countries (e.g., South Africa) have powerful presidents who are elected by the legislature. These
executives are titled "president", but are in practice similar to prime ministers, who also undertake more
ceremonial duties like a head of state. Other countries with the same system include Botswana, the
Marshall Islands, Nauru, and Suriname.
In some presidential systems, there is an office of prime minister or premier but, unlike in semi-
presidential or parliamentary systems, the premier answers to the president and not to the legislature.
By contrast, national presidents are figurehead heads of state, like constitutional monarchs, of
parliamentary governments and are not active executive heads of government (although some figurehead
presidents and constitutional monarchs maintain reserve powers). They are responsible for the
formalities of state functions and ensuring a functional parliament, while the constitutional prerogatives
of head of government are generally exercised by the prime minister. Such symbolic presidents can be
directly elected by the people or indirectly by a legislative vote. Only a few nations, such as Ireland,
have a popularly elected ceremonial president.
UNIT 2
Meaning of Power- Power can be defined as one capability and capacity to change, mould and impress
the behavior of others as desired and planned by employing number of methods.
National Power- National Power refers to the power of a nation with regard to its capabilities and
capacities to influence change and mould the behavior of other nations as per its strategy planning and
the legislation of national interest.
Components of the National Power- Power and also the national power. National Power is very
comprehensive issue and is determined by number of components which are as under:
1. Population: - A nation has to take care of the needs of the people of its country. Therefore it has to its
population in to consideration while framing its planning and strategy to deal with other countries. It is
therefore the population is important elements and components to determine the national power.
2. Geography: - Geography is another very important component to constitute the national power. The
area, climate, contents and soil and location constitute the geography of a nation. It affects the national
power. More is the ideal geographical situation; more is the powerful a nation is.
3. Economy: - Economic conditions determine all other conditions. It is therefore the economy of a
nation is main component and determinants of national power more strong and viable economy makes a
nation more powerful. It economy is poor, undeveloped and week ascent resources the nation will be in
submersing positions.
4. Technology: - This is the era of scientific and technological advancement. It is therefore more a
country is advance in science and technology, more at is powerful. Since China and USA and Japan are
more powerful nations in the world.
5. Military Preparedness: - The military and army preparedness makes a nation more and powerful.
6. Stable Political System.
7. National Character of the people.
Limitations on National Power- A nation cannot be allowed to exercise unlimited power because it is
not good for the survival of other countries. Therefore more are certain mechanism and conditions which
limit the national power. There are as under:
1. International morality 2. Public opinion. 3. International Law
1. International Morality: - As the morality based on social commons and values has been the main
weapon and controller of the human behavior, in similar way the world opinion and the determinant
factors of international morality have been playing decisive role in shaping, monitoring and limiting the
national behavior and so the national power. Every nation has to live with world community no nations
has independent existence, it is therefore every nation has to act and behave keeping in view the
expectations of the world community. International morality can be understood as the cumulative mode
of behavior based on many elements, intents, modes of behavior and code and conduct.
2. Public Opinion/ World Opinion: - As public opinion determine the behavior of a perform in the
society, in similar way the Nation’s behavior and so the national power also is determined and
conditioned by the public opinion and the world opinion on different international issue. Generally no
state or nation can afford to go against the public opinion and world opinion.
3. International Law: - As a municipal law and state law is main and effective instrument to check and
control the man is individual and social behavior in the same way international law is the most effective
instrument to limit and combine the behavior of the nations. Although there are some differences
between the national law and international law but both have the same objective. Both the laws are
generally followed by the people and nations.
BALANCE OF POWER
Balance of power has emerged as very interesting and important concept in the study of structure and
function of the world community particularly as part Second World War scenario. It has been
understood and defined differently but different authors. Here we are giving same definitions of
prominent authors. Slicher says- Balance of power indicators the relative positions of the people and
communities at different level. In simple way the balance of power can be explained the process of
management of mutual relations by the nations so as no country or nation could hurt the intents of other
nations. In a way it is a decentralized system of governing the behavior of each other. According to B.F.
Sydney- It is a collective effect to check a nation to become so powerful which starts to harm other
countries. Followings are main features of balance of power: a. Distribution of power b. To maintain
equilibrium of power c. To make a powerful block d. To main the stability and peace e. Management
power politics f. It is a balancing process g. It is system to make collective policies h. It seeks to
maintain status qua i. It is both idealistic and strategic j. It is both democratic and monopolistic
Instruments for Maintaining Balance of Power 1. Compensation 2. Intervention 3. Buffer State- To
create such a state which acts as a link between two belligerent states. 4. Armaments 5. Diplomacy 6.
Making Alliance like NATO and war raw Pact 7. Balancing System Criticism 1. It is negative trend
seller 2. It is based on accumulation of power 3. It failed to maintain international peace 4. It could not
control and check the autocratic behavior of the nations 5. It provoked conflicts and wars 6. It created
balances in international relations 7. It proved impracticable 8. It locked ideal distribution of power
Relevance In fact it is very much debatable whether Balance of power is relevant in today is would or
not. Ogenski says it is irrelevant in today’s time. Similar are the views of Morgenthos and Polmer and
Peckiness that although the balance of power is not bad but today’s circumstances are not apperpual for
the working of Balance of power. The advent of nuclear war and biological weapons has made balance
of power irrelevant. Globalization and restructuring of the world community on logical and bilateral
basis has function made it irrelevant.
UNIT 3
Introduction
To check the outbreak of Second World War league of nation was formed offer the end of international
world war in 1920 on the basis of Treaty of varsellers. Unfortunately due to discriminatory provisions of
the Treaty of varsellers, league of nation could not check the rivalry various groups in Europe and
Second World War related in 1939. During the war it seeks effects were related to build an international
organization. Various conferences were held for this purpose and finally UNO came into existence on
24th October, 1945 it Francisco conference. 24 in October are celebrated as UN Day. It had 25 original
members in which India was one of them.
Main Principles of UN were as under:
1. All the states are equal.
2. Every state will expect the national unity and sovereignty of other nation.
3. All the disputes will be settled by mutual negotiations and discusses
4. No nation will resort to war.
5. No nation will interfere in internal matters of other countries.
Objectives of the UN:

UN came into existence with two bread objectives:
1. To check and remove the possibilities of the outbreak of third world war and also to remove the
tension which develops in any part of the world.
2. The second most important objective of the UN was to promote the international co-operation in
different areas among the members of UN.
Organs of UN
Followings are the six main organs of UN
1. General assembly.
2. Security Council.
3. Economic and social council.
4. Transfer ship council.
5. International court of justices.
6. Secretariat.
1. General Assembly: - It is the legislature of the UN. Every member country can send its five members
to General Assembly. However every nation will have one vote each. This most important organ of UN
at its represents every civilization, culture, geography, language and ethos of the world. It can be called
as microcosm of the world. It meets once a year for three to four matters special sessions can also be
called on the request of majority of the states or by the Security Council. It famous its own rules and
regulations. It also affects its presidents and vice- presidents for a year to provide members meetings of
the Assembly.
Functions
It performs following functions:
1. Deliberative functions
2. Supervisory functions
3. Financial functions
4. Passing a resolution ‘Uniting for Peace’
5. Elective functions
6. Constituent function i.e. Amendment in the Charter of UN
2. Security Council: - It is the executive of UN and it is most powerful organs of UN. It has five
permanent members i.e. USA, UK, Russia, China and France. It has also ten non permanent members
which are appointed for two years by General Assembly. Security Council is five permanent members
have Veto power is no decision can be final without the consent of each permanent member.
Power and functions of Security Council
1. It is concerned mainly with the maintenance of international peace and security.
2. It implements the decisions of General Assembly.
3. Submission of annual reports to General Assembly.
4. Regulation of Armaments.
5. Giving consent for admissions to new members of UN.
6. Interference where peace is threatened.
7. Deciding military actions if other measures fail.
8. Appointment of General Secretary of UN.
9. Supervising role.
10.Election of 15 Judges to international court of Justice.
3. Economic and Social Council: - It has 54 members who are elected by General Assembly in a team of
three years. It meets twice a year. It has members’ functional commissions and opinions to perform its
functions smoothly.
Functions
1. Its main function is to promote social, cultural, economic and educational conditions in different parts
of the world to co-ordinates with different opinion for his work.
2. It monitors the activities, give suggestions and get reports.
3. It promotes human rights and human freedom.
4. It gives the report to General Assembly and Security Council.
5. It carries out the recommendations of General Assembly.
6. It supports and gives assistance at the request of member of UN.
4. The Trusts ship Council: - In UN system, mandate system of League of nation was replaced was
replaced by Trusts ship Council. It is created as a principal organ of UN to administer same of the
Territories ruled by colonel powers to prepare these Territories ruled by colonial powers to prepare these
territories for seeks Governances and independence. It works under the General Assembly.
Compositions
Followings are the categories of the members of Trusteeship Council:
1. Members Administering Trust Territories.
2. Permanent members of UN who do not administer Trust Territories.
3. UN members elected by General Assembly for three years.
Functions
1. Getting reports submitted by administering authority
2. Accepted petitions and exams it in consultation with administering authority
3. To pay provide limits to trust Territories
4. Taking necessary action in conformity with the terms of the Trusts ship agreements It is reported that
most of the areas and Territories under the Trusts ship Council have become independent and self
governing independent nations. It is therefore the task of Trusts ship Council has become over.
5. Secretariat: - It is office Head quarter of UN in New York. Its chief administrative, supervisory and
representative powers. He is really a spokesman of UN. Secretary has big army of civil servants from
different member countries of UN. Secretaries keep the record and prepare files and reports. It has
several departments.
6. International Court of Justices (I.C.S.): - It is the judicial organ of UN. It has 15 judges from different
parts of the world. They are elected by General assembly and Security Council for nine years. No two
judges can be from the same nations a. C.J. settler the international disputes of different types among
different nations on the basis of international law. Its decisions are final and binding. They are
impeached by Security Council. Its Headquarter is at leagues. b. It has on final and optional jurisdiction.
c. It has advising jurisdiction also.
Peaceful settlement of disputes- This first and for most objective of UN is to remove the tensions and
conflict among member countries of UN. For this purpose it makes every effort to seller the disputes in
different areas. It is also commenced about the removing the possibilities of outbreak of third world war.
To settle the disputes among the countries UN takes numbers of peaceful measures to bring the parties
on discussions and understanding. Some of the measures are as under:
1. Negotiations: UN makes the disputing parties agree to come on the negotiating table so that by
discussions are arranged by UN. This most useful and successful measures.
2. Mediation: Some third party mediation which may be common friend country or any authority or
personality can mediate between the disputing parties to settle then disputes.
3. Conciliation: Various efforts are undertaken at different levels to make the disputing parties to council
with each other point of view so that disputes are settled and tensions is removed.
4. Arbitration: It is sort of strict order issued by competent authority on the basis of some fact finding
report. Even orders are generally binding on both the parties.
5. Judicial Settlements: It all such measures as disputes above fail to settle the disputes and no disputing
party responds positively to the above effects than the disputes is referred to international law and other
facts existence. Such judicial decisions are binding in the member states and are implemented by the
Security Council.
6. Collective Security: it is the process of taking collective decision to remove the possible threat to
international peace and security due to aggressions or threat of aggressions and war. In collective
security aggression of one country upon other is considered aggression or attack against all.
A. According to Pelmer and Perpins- It is collective effort to meet the treat to international peace and
security.
B. According to Slaicher-Collective Security is mechanism among some countries where every country
is consulted to co-operate in can of attack on any other country. C. According to Jocub- It is a
mechanisum of collective effort foe collective security.
Features of Collective Security
1. It is device of power management
2. Individual security is limited with collective Security
3. Commitment for joint efforts against threat to peace and Security
4. Belief in UN system or such world body
5. It stands between balance of power and UN system
6. It is a determent system
7. It is anti war system
8. It is a co-operative system
Criticism
1. Its nature is idealistic
2. Identification of aggression difficult
3. It leads to war
4. It is not neutrality
5. It has many weakness
6. It can be permanent system
Collective Security and UN
It is said that UN system works on the principle of collective Security. It came into existence because of
the urge of all the member countries to achieve collective Security by checking the possibilities of
outbreak of third world war. Many provisions from Art- 39 to Art 51 of UN charter are given which
deal, with the need and efforts for collective’s security. Uniting for peace resolution of 1950 is a clear
indication of collective security. It has been used in various internal crises like Korean crisis 1950. Suez
Canal crisis 1956 and against Iraq in 1991.
UNIT 4
Cold War Diplomacy- causes phases and case studies, Korean crisis, Vieira crisis, Cuban crisis,
Afghanistan crisis and Gulf war-I
After the Second World War, the world was divided into blocks. One was capitalist block led by USA
and other was communist bloc led by the USSR, Unions of soviet socialist Republic. In fact in second
war USA and USSR emerged more victorious and they both were maximum beneficiary while the other
European countries and their allies like France, Britain and suffered economically as well as politically.
Mutual rivalry, mistrust and competitiveness developed in Second World War itself which was further
escalated and manifested after the war. Both the blocks started to increase their areas of influence
particularly in Asia, Africa and Latin America who were newly independent and were in dire need of all
types of aids. This mutual competitiveness and rivalry created such situation where they both started to
harm the interests of each other which led to strained relations. This situation has been described as
COLD WAR. Some author calls it as proxy war also. Leon calls cold war as the continues preparation
for war. Pt. Jawahar Lal Nehru calls it as conflict between two competitors. It can also be called as state
of war without actual war. It is a weapon of diplomacy also. It is a situation when one group or nation
tries to let donor the other nation or group. It can also be called as the psychological war. It was
originated in part of Second World War period and its main cause can be understood as following.
1. Ideological conflict between communication and capitalism
2. Anxiety and fear of western countries about the growing power as influence of USSR
3. Mutual mistrust and distrust between USA and USSR in Second World War itself
4. Atomic secrecy of USA and its attack on Japan
5. Formation of military block and Alliance by both the groups
6. Interferences of USSR in Germany, Turkey, Greek and Iran
7. Frequent use of veto in security council by both the groups
8. Opposite stand of both the groups in number of international issue like Kashmir issue Afghanistan
issue and partition issue
Phases of Cold War
The history of cold war can be described in three phrases
1. Final Phase- 1945-1953
2. Second Phase- 1953-1963
3. Third Phase-1963-1970 Main events of Final Phase- 1945- 1953
1. Mutual fear and interest of each other is Expansion
2. Inflammatory speech of churchillou Marlen 5, 1946
3. Growing influence of Soviet Union in developing countries
4. Marshall Plan of USA to check the influences of USSR. Under this plan president of USA announced
liberal economic aid for developing combines
5. Truman is doctrine on 12 March 1947 in which USSR president. Truman gave massive aid to Turkey
and Unarm
6. Establishment of military alliances by rival groups NATO in 1949
7. Display of power and influence in Korea by USA and USSR
Main event of second phase- 1953 to 1963
1. Establishment of SEATO and war saw pact by USA and USSA respectively in 1955
2. Nuclear arms race
3. Vietnam crisis- mutual rivalry started in Vietnam when the form of Hochi Minh attacked the forcing
of France USSR and China supported the forces of Hochi Minh which USA and Britain supported
France
4. In 1956 USSR interfered in Hungary which was opposed by western power
5. Rivalry over Suez Canal in 1956 6. Britain war crisis in 1961
Main events of third phase- 1969-1970
1. Change of leadership in USA and USSR
2. Indo- Pak war in 1965 in which USSR supported India and USA supported Pakistan in Kashmir issue
3. Arab Israel war 1967
4. Beginning of détente which helped in the relaxation of Tension of cold war
Impact of cold war
1. Polarization of world politics
2. It affected the functioning of UN
3. It generated Terrorism
4. Multiplicity of military alliances
5. Fear of Atomic war
6. It generated the politics of opportunity at international level
7. Origin of non- alignment
8. Development of the concept of balance of power and collective security
Post cold war – on going missions – Gulf war-II, Ethiopia and Somalia
Post Second World War world remained in to grip of cold war mainly 1970. During this period itself and
after words same structural, functional and strategic and also ideological took place which eased the
Tension of cold war. The top leaders of the world and nation states realized the need of peace, co-
operation and development for which all meaningful persons started to work. The increasing danger of
atomic war and UN of biological weapons forced the world to work for peace and remove the possibility
of third world war. The UN system and its specialized agencies contributed in the development of
internationalism and world order based on mutual co-operation and expect for each other is enmity,
integrity and sovereignty. Increasing strength of third world countries also put on check on the
monopoly of USA and USSR and other seen big power. Non aligned countries also worked as a power
block. Increasing number functional organization on regional basis like ASEAN, OAC, OPEC, SAARC.
League of Muslim countries also made the world multipolar due to which the intensity of cold war
declined.
Following are some developments of post cold war period.
1. Increasing peace of détente which means efforts, negotiations and summits for resolving the disputes
by negations.
2. Increasing role of UN system
3. Development of internationalism
4. Threat of atomic war
5. Common problems of world community and common efforts to solve them. The prominent such
problems are Terrorism, Arms race, pollution, drop practicing, population, environmental issue, human
rights, woman empowerment, international economic order, child abuse, etc
6. Increasing role of third world countries
7. Decline of Marxism as dominant ideology
8. Disintegration of USSR
9. Liberal leadership in the world
10.Development of democratic culture and human rights
11.Leading role of UN in Gulf war, Somalia and Ethiopia
Foreign policy – Alliances, NATO, CENTO, SEATO, WARSAWPAC, and Non Aligned movement
Meaning of Foreign policy: - Foreign policy is the policy, attitude and approach of country which it
intends and shape to follow in dealing other countries to legalize and promote its national interests. The
National power shapes the national interests hence it is the most important determinant of the Foreign
policy.
Main determinants of Foreign Policy are:
1. Geography
2. Economic and national resources
3. Strategic position
4. National interest
5. Military preparedness
6. Stable political system
7. World scenario
8. Political leadership 9. History and culture
10.Contemporary events
India after independence made Foreign Policy on the basis of same following elements mentioned the
above. Pt. Jawaharlal Nehru is called as the architect of India is Foreign Policy.
1. Panchsheel
2. Opposition of colonialism, imperialism and racialism
3. Support for UN
4. Non- Alignment
5. Good relation with neighbor
6. Support for disarmament
7. Support for new international economic order
The Foreign policies which were followed by USA and USA after second world war need to be
particularly referred have become as part of that policy USA and USSR made several military Alliances
to counter each other is influence and power. It was the era of cold war. Formation of then alliances
accelerated the pace of cold war. Main such alliance and group were NATO, SEATO, CENTO, and
ALAM.
NATO- National Atlantic Treaty Organization After Second World War USA and some western
countries entered into a military agreement which was treaty to counter the influence of USSR and its
communist ideology. This treaty came into force on 4th April 1949. It was provided in this treaty that
attack on any member of this treaty will be considered attack on all and hence the attacking nation will
have to face the consequences with this treaty USSR was territorial and it also started to think of
creation of similar type of alliances.
SEATO- South East Asian Treaty organizations For the same purpose i.e. to counter the influences of
USSR and communism USA entered into military alliance with South East Asian nations in Pacific
Ocean.
BAGDAD PACT (CENTO) Central Treaty Organization On creation of several military alliances by
USA, communist bloc lad by USSR also entered into military alliance in 1955 with the name of CENTO
(Central Treaty Organization) this is popularly known as the BAGAD PACT. Its purpose was to check
the popularity of capitalism and influences of USA.
NON ALGNED MOVEMENT
After Second World War the world was divided into two power blocks one capitalist block led USA and
second communist, block led by USSR. Post Second World War period witnessed the emergence of
large number of newly independent nations states as a result of the process of decolonization and
national movements for independent in Asia, Africa and Latin America. There newly independent
countries were in the process of national development and deconstruction for which they needed
economic and technological aid. The capitalist block and communist bloc started to attract their newly
independent nations into their campus by giving them liberal, economic, technological and political
support. They asked to then countries to join then military alliance like NATO, CENTO, SEATO and
war saw Pact. USA offered Marshall plans them for joining their military camp. Pt. Jawahar Lal Nehru
of India, Marshall Tito of Yugoslavia, Suharto, Indonesia and Col nausea of Egypt and sensed the threat
to newly indulged countries from the power block. They arranged a meeting at Bandung in 1955 and
discussed about the need of NAM (Non Aligned Movement).
Meaning of NAM: - The liberal meaning of NAM meaning not to join military group or block. Non
aligned does not mean neutrality or isolated from the world affairs but to take part in world affairs but to
take part in world affairs actively and take the stand impartially and fearlessly without joining any camp.
NAM allows the nation states have any kind of relation with USA or USSR on the basis of mutual
respect and reasonable understanding. NAM suggests the member countries to promote their mutual co-
operation in all the areas become they all have similar conditions and similar legalize. In a short period
NAM become very popular. Its number grew very fast. Its first summit was held in 1961 at Belgrade in
which 25 members took part. Today it has 120 members its 16th summit was held in 1912. Its number
from 25 to 120 proves its utility and acceptance in the world community.
Role, weaknesses and Relevance of non- Aligned Movement From 1961 ties 2013 the NAM has
travelled a long journey with ups and down, achievements and crime. NAM has played a very
significant role not only in protectively the unity, dignity, integrity and sovereignty of the newly
independent countries but promoted their mutual cooperation.
We can summarize the role as under:
1. In protecting the unity, dignity and sovereignty of developing countries 2. In promoting the co-
operation any newly independent countries in differ field 3. In checking the negative design and
intentions of body the power block 4. In strengthens the UN system 5. In democratization of UN system
6. NAM emerged as a powerful block in General Assembly 7. It staking the claim in Security Council 8.
Helped in passing the uniting for peace Resolution 1950 in General Assembly 9. In taking but in
deliberations at various world for vices 10.In creating world opinion
Weaknesses of NAM
In the big beginning NAM moved in its desired and attitude of the member countries started to change.
The meaning of their national interest started to change and stared to violate the principles and dictates
of NAM. Grouping on number of basis started being the members of NAM. Mutual tension conflicts and
wars started. The discussions of NAM summit no longer remained sacrosanct for them. They started to
have mutual Treaties even the defense treaties with the countries of communist block and capitalist
block. Iran- Iraq war for long period, Indo- Pak war in 1965 and 1971 Iraq is occupation of Kuwait.
Indo- Lankan conflicts are such many examples which weakened the NAM. Even the intrgrity6 of India
was questioned when it had a Treaty with USSR in 1971 and it did not criticize USSR on Afghanistan
issue all were the factors were not only weakened the NAM but also raised the questions on its
extenuation and relevance. Some of the leader’s raised the demand of binding NAM.
Relevance of NAM
Now it has become an issue of discussion debate and even controversy weather in today is world the
NAM has relevance or not. People argue that since the world structure and world scenario has changed
from the time when NAM came into existence, it irrelevant and unnecessary to runs a unless and
dysfunctional organization or movement. The world is globalization and has multipolar world. USA and
USSR the Russia is not that much powerful. The position of USA has also undergone change. Many new
economic and nuclear power states have emerged on the world same. In spite of some situation, use can
safely say that the principles of NAM still are relevant. Every state needs unity, integrity, sovereignty
and dignity which are possible only if they are allowed to take independent, disportail and unconditional
decisions on the basis of merit of the issues, for which NAM stood.

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NAAC ACCREDITED

Reference Material for Five Years

Bachelor of Law (Hons.)

Five Years Bachelor of Law (Hons.)

S.NO. SUBJECTS CODE PG.NO.

1 FAMILY LAW-I 201 03-72

2 CONSTITUTIONAL LAW 203 73-86

4 ECONOMICS-I 207 146-228

5 POLITICAL SCIENCE-II 209 229-224

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Unit-I: Hindu Marriage and Dissolution

a. Institution of Marriage under Hindu Law

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ii. Forms, Validity and Voidability of Marriage

As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the

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Conditions for the validity of marriage (Section 3 and 5)

(a) Is incapable of giving a valid consent to in consequences of unsoundness of mind; or

(c) Has been subject to recurrent attacks of insanity or epilepsy.

Clause (i) – Condition of monogamy

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Bigamy – Section 5(i)

Clause (ii) – Condition regarding mental health or capacity

Clause (iii) – Condition of marriageable age

Clause (iv) – Avoidance of degrees of prohibited relationship

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(1) The brother, or

According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is

Clause (v) – Avoidance of sapinda relationship

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Rules for determining sapinda relations:

Solemnisation of marriage (Section 7)

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Registration of Marriage (Section 8)

Registration when necessary

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Void and Voidable marriages (Sections 11 and 12)

Thus a marriage will be void ab initio:

Effect of Void marriages

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Impotency [Section 12(1)(a)]

(1) That the marriage has not been consummated; and

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(3) Mental or psychological impotency includes emotional, psychological or moral repugnance

Consent obtained by force or fraud [Section 12(1)(c)]

Provided no petition for annulling a marriage:

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Pre-marriage Pregnancy [Section 12(1)(d)]

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Thus the requirements of this ground are:

(1) The respondent was pregnant at the time of marriage.

Restitution of Conjugal Rights - (Right to stay together)

Judicial Separation: Legal Separation without divorce

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Unit-II: Muslim Marriage and Dissolution of Marriage