Wednesday, 22 November 2017

Historic Judgment on restitution of conjugal right against wife who was married she was child

 It is a misnomer to call this a suit for the restitution of conjugal rights. When a married couple, after cohabitation separate and live apart, either of them can bring a suit against the other for the restitution of conjugal rights according to the practice in England, and according to the later practice of the Courts in India. But the present suit is not of that character. The parties to the present suit went through the religious ceremony of marriage eleven years ago when the defendant was a child of eleven years of age. They have never cohabited. And now that the defendant is a woman of twenty-two, the plaintiff asks the Court to compel her to go to his house, that he may complete his contract with her by consummating the marriage, The defendant, being now of full age, objects to going to live with the plaintiff, objects to allowing him to consummate the marriage, objects to ratifying and completing the contract entered into on her behalf by her guardians while she was yet of tender age. It seems to me that it would be a barbarous, a cruel, a revolting thing to do to compel a young lady under those circumstances to go to a man whom she dislikes, in order that he may cohabit with her against her will; and I am of opinion that neither the law nor the practice of our Courts either justified my malting such an order, or even justifies the plaintiff in maintaining the present suit.
Bombay High Court
Dadaji Bhikaji vs Rukhmabai on 21 September, 1885
Equivalent citations: (1885) ILR 9 Bom 529

Bench: Pinhey
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Whether a person can be contradicted by his statement in dairy kept by him?

 Again, section 39 shows that a statement may be contained in a document which forms part of a book. In this case also there is no question of any communication of that statement to another person in order to make it a statement.

11. Then, there is section 145, which lays down that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing for the purpose of contradicting him. Under this section a witness may be contradicted by statements in a diary kept by him, though there is no question of any communication of those statements to another person.

12. Then comes section 157, which we have already set out above. Here also the words used are 'Statement made by'. We see no reason why the word 'statement' should not have been used in its primary meaning in this section also. There is nothing in the section which in any way requires that an element of communication to another person should be imported into the meaning of the word 'statement' used therein. It was urged that if we do not imply communication to another person in the meaning of the word 'statement' in this section, it would result in a witness corroborating himself by producing some writing made by him and kept secret and that this would be very dangerous. Now, a distinction must be made between admissibility of such a writing and the value to be attached to it. Section 157 makes previous statements even of this type admissible; but what value should be attached to a corroboration of this nature is a different matter to be decided by the court in the circumstances of each case. The witness who is sought to be corroborated is produced in the witness-box and is liable to cross-examination. The cross-examiner may show that no reliance should be placed on such an earlier statement. The danger, therefore, which the learned counsel for the appellant emphasised is really no danger at all for the witness is subject to cross-examination. The main evidence is the statement of the witness in the witness-box and a document of this nature is only used to corroborate him. If the main evidence is shaken by cross-examination, corroboration by such a document would be of no use. There is, therefore, no reason to give a different meaning to the word 'statement' in this section because of this alleged danger, which really does not exist.
IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 31 of 1958

Decided On: 04.11.1958

Bhogilal Chunilal Pandya Vs.The State of Bombay

Hon'ble Judges/Coram:
K. Subba Rao, K.N. Wanchoo and N.H. Bhagwati, JJ.
Citation:1959CriLJ389 :

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When illegal activity can be treated as business?

Any activity carried on continuously and systematically by a person by the application of his labour or skill in order to earn an income is 'business'--ratio of Supreme Court judgment in the case of Barendra Prasad Ray v. I.T.O. The activities of the Jain brothers, even if considered illegal, were therefore 'business' activities, hence the entries recorded in MR 71/91 make it a book of account kept in the course of business. "..........in Barendra Prasad Ray v. I.T.O. ...........this Court observed that the word 'business' is one of wide import and it means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income. The activities of the Jain brothers, as sought to be projected by the prosecution now on the basis of the materials collected during investigation (detailed earlier) would, therefore, be 'business' for they were being carried on continuously in an organised manner, with a set purpose (be it illegal) to augment their own resources. MR 71/91 is, therefore, a book of account kept in the course of business."

IN THE SUPREME COURT OF INDIA

Crl. A. Nos. 247-256 of 1998 (arising out of SLP (Crl.) Nos. 1716-1725 of 1997

Decided On: 02.03.1998

Central Bureau of Investigation Vs.V.C. Shukla & Ors.
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When book which contains successive entries of items can not be treated as account book?

 In Mukundram (supra) after dealing with the word 'book' (to which we have earlier referred) the Court proceeded to consider what is meant by a 'book of account' under Section 34 and stated as under:

"To account is to reckon, and I an unable to conceive any accounting which does not involve either addition or subtraction or both of these operations of arithmetic. A book which contains successive entries of items may be a good memorandum book; but until those entries are totalled or balanced, or both, as the case may be, there is no reckoning and no account. In the making of totals and striking of balances from time to time lies the chief safeguard under which books of account have been distinguished from other private records as capable of containing substantive evidence on which reliance may be placed."

(emphasis supplied)

28. We have no hesitation in adopting the reasoning adumbrated in the above observations. The underlined portion of the above passage supports the contention of Mr. Altaf Ahmed and rebuts that of Mr. Sibal that Mr 71/91 is only a memorandum, for the entries made therein are totalled and balanced. We are, therefore, of the opinion that MR 71/91 is a 'book of account' as it records monetary transactions duly reckoned.

IN THE SUPREME COURT OF INDIA

Crl. A. Nos. 247-256 of 1998 (arising out of SLP (Crl.) Nos. 1716-1725 of 1997

Decided On: 02.03.1998

Central Bureau of Investigation Vs.V.C. Shukla & Ors.

Hon'ble Judges/Coram:
M.K. Mukherjee, S.P. Kurdukar and K.T. Thomas, JJ.
Citation: AIR 1998 SC 1406
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