Case Flow Management Rules: Is Justice delivered to the Backlog?

On 05/05/2016, the Gujarat High Court Case Flow Management Rules, 2016 came into force. The objective as gathered from its title, is to evolve a case flow management system. This rules apparently based on the Draft Rules provided by the Law Commission of India in its Consultation paper. In the judgment of the Supreme Court in Salem Bar Association vs. Union of India, the Supreme Court has requested this committee to prepare a case management formula. It is in the light of the said judgment this consultation paper on case management was published. There are many High Courts who have already made the rules for case management.

The rules are in sync with the reality and the expectations of litigants. The only problem which may be arisen is its implementation. Some of the provisions cannot practically be implemented e.g. Rule 13(3), this provision mandates that after the Written Submissions filed by the parties, the matter shall be listed before the Registrar (Judicial), for ascertaining the time likely to be taken for oral hearing. The parties are called upon to indicate the time for the oral hearing. And as per the availability of the said requisite extent of time, the matter shall be listed before the Judge. I have my own doubts regarding its practicality.

The Rules classify three Categories depending on the ‘Urgency’ i.e. Fast Track, Normal Track & Slow Track. Interestingly, the word ‘Urgency’ is nowhere defined in the Rules. It gives complete discretion to the Judge to categorize the matter into any category. This may bring heartburning to various litigants. Though Rule 6 empowers the Judge to shift the case from one track to another, Intra-Court appeals may be filed just to shift the track of the matter!

Rule 8 says that the petitioners/appellants/applicants shall cause to file, separate list, the list of the heirs/Legal Representatives of all petitioners/appellants/applicants. It also mandates to file a declaration to the effect that the address mentioned in the cause – title is correct. I am unable to gather the objective/rationale of this provision.

Rule 9 deals with mode of Advance Service. It says that the respondent must be served the copy of the petition/appeal along with all documents/paperbook prior to 72/48 hours before presenting the petition, in the cases where interim orders are sought against Government or PSUs. So, even if one require to get urgent orders in cases like termination, Tender matter, Demolition; one have to wait till 48/72 hours before presenting the petition!   It also increase the cost of litigation as the entire set of the petition shall be served to all the respondents. So, in cases where there are 25 respondents, you have to have 25 copies with you and it might happen that the matter can be dismissed in limine. There may be some formal parties. Under the new rules they are also required to be served. Ultimately, litigants would suffer.

Only time will tell the real implications of this Rules. Till then let us all self – manage the backlogs!

Customary Divorce & Hindu Marriage Act, 1955

Is Customary Divorce through Divorce deed recognised and acceptable as a mode of dissolution of marriage under Hindu Marriage Act, 1955?


STATUTORY PROVISIONS & Judicial Pronouncements: Before adverting to the aforesaid queries, it would be profitable to cite the fundamental provisions of the relevant legislations upon which this query has been given:

          If the marriage is solemnised as per Hindu rituals, provisions of   Hindu Marriage Act, 1955, more particularly Sections 13, 13B & 29, are applicable to opine on the subject.

If both the parties are agreed to dissolve the marriage the only Provision applicable is Section 13B of the Act. But, the Hon’ble Gujarat High Court through various judicial pronouncements held that customary divorce is saved by Section 29 (2) of the Act, and, hence, permissible and having force of law.

In the matter of Sonal Keyurbhai Patel v. Superintendent Regional Passport Office & Anr. 2010 (3) GCD 1771 (Guj.) the Hon’ble Gujarat High Court held that, “…customary divorce can be said to be permissible unless it is objected by either party to the divorce deed or any person who is directly affected by the divorce deed.”

In the case of Twinkle Rameshkumar Dhameliya v. Superintendent, Regional Passport Office, Ahmedabad, 2006 (4) GLR 3443 the Hon’ble Gujarat High Court observed that, “Section 29(2) of the Hindu Marriage Act, 1955 provides that “Nothing contained in the Hindu Marriage Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnised before or after the commencement of Hindu Marriage Act.” Therefore, if the customary divorce is permissible for dissolution of Hindu marriage the same as such is saved even as per the provisions of Hindu Marriage Act.” Further it is observed that, “If the passport officer insists for authenticated divorce deed through the court in all cases of divorce, then in that case, the effect of Section 29(2) if Hindu Marriage Act for saving the customary divorce shall stand nullified.” This makes it very clear that:

·         Customary Divorce is recognised as one of the modes of dissolution of Hindu marriage under the Hindu Marriage Act, 1955.

·         Only in cases where either parties of the deed or any person directly affected by the deed raises any objection regarding the custom prevailing in the community, the prevalence of the customary rights to divorce shall be established by the person propounding such custom.

In the case of Dipika Amrutlal Patel V. Vishwam Pamanand Patel reported in 2011 GLH (1) 457, the Hon’ble Gujarat High Court held that, the Family Court can grant decree in a declaratory suit for the declaration that the customary deed executed between the parties, is valid and legal. Moreover, the Family court can also declare by virtue of the said customary divorce deed that the parties to the deed, is ceased to be husband and wife from the date of the execution of the customary divorce deed.

         

Upon assessment of the above the following emerges:

·         The customary divorce deed executed between the parties can be legally recognised and accepted mode of dissolution of marriage under the Hindu Marriage Act, 1955.

·         As the same is legally recognised no further action is required to be taken for reasserting the dissolution of marriage.

·         As the marriage is not in subsistence the petition under section 13B of the Hindu Marriage Act, 1955, cannot be filed.

·         Parties may file a declaratory suit for issuance of the declaration from the court that the divorce deed executed between the parties, is legal, valid and proper.

For Starts-up.

Rana Ayyub and the Streisand Effect!

Gujarat Files: Anatomy of A Cover Up, Rana Ayyub self-published this book as according to her, a well known publisher refused  to publish the book. The subject matter of the book i.e. 2002 Riots and Fake Encounters of Gujarat, itself is enough to scare the publishers. She also claimed that she had in fact stinged none other than, Mr. Narendra Modi, and, She can provide the sting to the investigating authorities if requested.

She also claimed that between 2012 - 2014, she had approached many publishers but to hear a firm rejection.

She and other FoE crusaders are upset with the 'Bhakt's critical ratings' of her book. The abusive language used by the Bhakts on Amazon and Flipkart's review section raises some valid concern. They say if you don't like the book publish a book which provides counter narrative. As the book contains under cover operation it is very hard for a layman to judge its authenticity. Nonetheless, abuses seldom help anybody. Dialog would.

 Lately, when any writer faces a problem to publish his book which has some controversial subject matter involving Politicians or Business czars, Streisand effect comes in to play. The Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet.

Rana Ayyub also got the Streisand Effect handy. Due to this negative publicity, the book tops the chart and is a top seller on both the sites. Many blogs and leading E - journals have published excerpts of the book. It also generates curiosity in public.

Moral of the story: Don't pulp the books, churn your mind and counter a book with a book!