The Supreme Court favours a law to check growing commercialisation of the legal profession and to “prescribe floor and ceiling in fees” to ensure the poor were not nudged out of the justice delivery system. The legal profession should make its services available to the needy on the lines of state-run hospitals, a bench of justice AK Goel and justice UU Lalit said. “It was observed that like public hospitals for medical services, the public sector should have a role in providing legal services for those who cannot afford fee,” the bench said, citing the 131st law commission report. What a lawyer charges a client remains largely unregulated in India. The advocates’ fee rules are only for guidance and there is no bar to money claimed beyond what is fixed under the rules. The Supreme Court rules 2013 permit a lawyer to charge a maximum of Rs 8,000 per hearing, barely a fraction of what is actually billed.
The country’s top lawyers charge anywhere between Rs 10 lakh and Rs 20 lakh for an appearance in the apex court. However, the legal community is a divided house on the issue. While some believe there should be no regulation of fees, others think otherwise. Senior advocate and former Supreme Court Bar Association president, Dhushyant Dave says, “The suggestion by the court is completely unconstitutional and illegal. Were the judges who were previously advocates not charging astronomical fees ? It is sad that they now feel that fees should be capped. We are not a communist nation, where everything can be regulated. Lawyers have a fundamental right to practice. It’s not a right order. Not everyone agrees with him. Without a cap, we lose the idea of being a profession and become commodities that go to the highest bidder. The court said commercialisation to the extent of exploiting the litigant and misbehaviour to the extent of browbeating the court needed to be checked. Lawyers generally charge clients according to their paying capacity. So, the fee varies from client to client, with corporate clients paying the most usually.
When parties of marriage fall within degrees of prohibited relationship. 2. If at the time of marriage if any one is un-sound mind effected or retarded of mental growth then such marriage shall be voidable. 3. If essential condition of age as to marriage has been violated then it shall be punishable under section 18 of the Act, but such marriage shall neither be void nor voidable. Several times a question arrises that if any party to marriage has been lost then whether second party can enter into second marriage? Section 13(1)(vii) of Hindu Marriage Act 1955 has to be analyzed in this respect. Thus at present circumstances the nature of marriage is neither completely ‘sacred’ nor completely ‘agreement’. It is a mixture of both. It consist of both. Q. No. 5 Distinguish between void and voidable marriage? What is meant by Void and Voidable Marriage? Section 5 of the Hindu Marriage Act 1955 mention about the essential conditions of a valid marriage.
It contain certain such conditions which if violated shall result into a void marriage. 1. Where at the time of marriage any party has a living husband or wife. 2. Where parties to the marriage fall within sapinda relationship. A case: Rampyari v/s Dharamdas 1984: It was said by Allahabad High Court that an application for declaring a marriage void is not required to be presented by the victim only. Another case : Leela v/s Lakshmi 1968: It was held that void marriage does not require even the decree of a court. Section 12 of the Act mention about voidable marriage. 1. Where marital cohabitation has not occurred due to impotency of the respondent. 3. Where the consent of guardian is necessary for the marriage and such consent has been obtained by force or by fraud as to nature of rituals or any actual facts or circumstances as to the respondents. 4. Where the respondent is pregnant at the time of marriage from a person other than the applicant. The applicant is presented within one year from the date of knowledge of fraud as force used.
The parties have not lived as husband and wife after the knowledge of force used or fraud. The applicant was unaware of the pregnancy of the wife at the time of marriage. The applicant has not voluntarily cohabitated after the knowledge of pregnancy of wife. Wife had been pregnant from a person other then the applicant. She was pregnant before the marriage. Impotency means the incompetency of any party to cohabit due to any physical or mental situation. A case Digvijay v/s Partap Kumai -1970 and Bibi v/s Nath 1970: It was held that nullity of marriage requires the existence of impotency at the time of first cohabitation. UNSOUNDNESS :- A case of Ratneshwari v/s Bhagwati- 1950: It was said that unsoundness insanity or lunacy for the purpose of marriage means: The incompetency of any party to marriage to understand the rituals of marriage. FRAUD OR FORCE :- Concealment of caste religion or misrepresenting a mother as a vingin or false praising or concealing prior marriage etc., are good example of fraud.
Section l6 provides for the legitimacy of child born in void and voidable marriages. According to it, it can be said that such children are considered legitimate. It is void ab initio. It is valid marriage until it has not Been declared null by a decree. No marital rights and obligation arrised between the parties of void marriage. All marital rights and obligation exists till the marriage is valid. Void marriage does not require the decree of court to declare it null. Voidable marriage can be declared null only by the decree of court. Parties to void marriage can remarry again. Parties to voidable marriage cannot remarry till the prior the marriage has not been declared null by a decree. Wife is not entitled to get maintenance under section 125 of CCP in a void marriage. A case of Yamuna Bai Anantrao v. Anantrao Shivram, 1988. Wife can claim maintenance in voidable marriage.
Question No.6 : Discuss the grounds for obtaining a decree of divorce. Answer:- INTRODUCTION :-Judicial Separation and dissolution of marriage are two important matrimonial remedies. It means suspension of marriage relation and dissolution means suspension of termination. Any party of the marriage can present an application for judicial separation and dissolution of marriage. It is pertinent to mention here that although the grounds of Judicial separation and dissolution of marriage may be the same but they are different. Dissolution of Marriage terminates the marriage, no marital relationship exist between husband and wife. Their duties & matrimonial rights also ceased. They can remarry also. Whereas in Judicial Separation neither marriage terminates nor matrimonial relationship ceases only the relations get suspended. Section 10 of the Act provides for judicial separation whereas section 13 of act provides for dissolution of marriage (divorce). Earlier grounds for above purposes were different but after the amendment of Hindu Law Act 1976 made the grounds of both as same.
Grounds:- Section 13 of Hindu Marriage Act 1955 mentions the ground for Judicial separation and divorce. 3. Ground of mutual consent ( sec. When other party after the solemnisation of the marriage had sexual intercourse voluntarily with person other than husband or wife. When other party after the solemnisation of the marriage, had behaved with cruelty with husband or wife. When the other party prior to two or more years from the date of presentation of application had deserted the applicant. When the other party does not remain Hindu due to conversion. When the other party is of unsound mind or is frequently or regularly and up-to such limit, affected by mental retardness that the applicant cannot reasonable be believed to live with the respondent. When the other party is suffering from incurable leprosy. When the other party is suffering from veneral discease. When the other party has declared Renunciation of world. When the other party is living or not, has not been heared by those for a period of 7 years or more, who would have heared naturally if that party would have been living.
When the cohabitation has not resumed between the parties to marriage after the expiry of one year or more from the date of decree of judicial separation. When the conjugal rights has not been resituated within one year or more from the date of decree of restitution of conjugal right. Under section 13(2) of Act which provides those grounds on which wife only can present an application for divorce. 2. When after the solemnisation of marriage the husband had been guilty of rape solomy or bestiality. 3. When wife had married at a time when her age was below 15 years and she after attaining the age of 15 years before attaining the age of 18 years, had repudiated the marriage. Hindu Marriage (Amendment) Act 1976 added another section 13A to Hindu Marriage Act 1955 to provide mutual consent as a ground for divorce. When husband & wife had been living separately for a period of more than one year. They are incapable of living together.
They have accepted divorce by mutual consent. Question No.7:- Explain the terms ‘Desertion’ & ‘Cruelty’ as ground of divorce? Ans :- INTRODUCTION :- Section 13 of Hindu Marriage Act 1955 mentions the various grounds of divorce. Out of these grounds Desertion and Cruelty are also the grounds for divorce. The provisions have been made in section 13(1)(ii) for cruelty and section 13(1)(iii) provides desertion. Means a party to a marriage permanently leaves the other party without any reason and without his consent. This also include ignoring of one party by the other. Thus desertion is not abandonment of place, but is of situation. When situation of desertion continues for more than two years, then it shall be the ground of divorce. A case of Savtri Pandey and Premchand pandey -2002: The Supreme Court held that, “ the desertion means ignorance from matrimonial duties, instead of leaving any place. Desertion without any reasonable cause.
Desertion without the consent of applicant. Desertion continues for two years. Actual desertion mainly requires two essential things: Respondent abondous matrimonial home and there is intention of desertion. This is also called physical separation and Animus desertion. Case: Vishwanathdas v/s Maya bala Das 1994: the court held that there should be intention of desertion. One of the important thing that desertion requires guilt by one of the parties i.e. desertion shall not be by consent. Case Gurubachan Kaur v/s Pritam Singh-1998. In a case of Vipin Chandra V/s Prabhawati – 1957: is a good example in this context. Wife was ready to live with husband but the husband was not willing to live together. The husband also send a telegram to the father of wife that read : “ Do not send Prabha” court did not held desertion by Prabha because she was willing to return to her husband. Thus in all, desertion requires abandonment of matrimonial home and a permanent intention of such abandonment. Desertion is required to be without reasonable cause. Another case of Roshan Lal v/s Basant Kumari -1967-68 Punjab: The wife does not agree to live with the husband along-with his parents.
She wanted that the husband should live separately leaving the parents for which husband was not ready. Wife went to her parents. It was held desertion. As we have seen above, desertion does not mean abandonment of place, rather is abandonment of situation. It is constructive desertion. In other words, it can be said that desertion means not abandoning the place, rather is ignoring the cohabitation. If any party to marriage devoids the other party from cohabitation even with living in one house, it shall be desertion. 3. Express willingness to return back to home. Cruelty:- it is an important ground for judicial separation and divorce. If any party to marriage behaves with cruelty to the other party, then the other party can present an application for divorce against the first party on this ground. Definition of Cruelty:- Cruelty has not been universally defined till now. It depends upon the circumstances of the case and the country and time.
Russel v/s Russel, 1897 Cruelty has been described as such characterial behaviour or conduct which may put life and body under physical or mental form of danger or may arise apprehension of such danger. If the definition is understood in matrimonial context, it shall show that any party to marriage may behave with other party in such manner that it shall be difficult for other party to live with him, this shall be cruelty. Vinod Biswal v/s Tikli Urf Padmini Biswal, 2002 it has been held that husband along with his parents use to regularly beat the wife. Father-in-law physically misconducted with her. Husband neve went to bring back wife nor made any attempt towards it. Court held this behaviour of husband to be cruelty because such circumstances arose that it became difficult for wife to live with the husband. Similar case is Yadhister Singh v/s Smt. Sarita, 2002 – wife used to live at ancestral home of husband.
Husband was working somewhere else. Husband never wanted to keep wife along with him. He used to come at his ancestral home once a week. He did not used to say his wife that he did not liked her, but he did say that she should live only with the other members of family at the ancestral property. Court held it to cruelty. There are several cases of cruelty. Actually the definition of cruelty depends upon the circumstances of the case. Kusum v/s Kamata, 1965, it was said that the definition of cruelty is so wide that it includes both physical and mental type of cruelty. Praveen Mehta v/s Indrajeet Mehta, 2002, the Supreme Court said that Mental Cruelty is a state of mind and feelings. In this case, wife refused intercourse form the first day after marriage. She also refused to undergo medical examination. She used to misbehave always with her husband. She also left her matrimonial home. Court held it to be cruelty by wife towards husband. Rakesh Sharma v/s Surbhi Sharma, 2002 – Wife left the matrimonial home without the permission of the husband. She used to charge husband with adultery and making constant demand of dowry.