Anti-slavery law

Slavery is the ancient form of labour in which the slave is bonded to the house of the master and has no free will of his own. Under the slavery system, the slave is treated like a chattel and can be transferred from one master to another for a price or as a gift. A slave and his children are the property of his master.

Slavery has existed through ages. It includes chattel slavery, bonded labour and forced labour. Slavery demeans the human worth and equates human life with that of animals or as lifeless objects. It is considered to be one of the biggest violations of human freedom and dignity.

The Universal Declaration on Human Rights has declared freedom from slavery as one of the fundamental human rights. Article 4 of the Declaration forbits slavery in all its forms. The International Covenant on Civil and Political Rights also declares freedom from slavery as a fundamental freedom. It prohibits slavery and enforced servitude. Article 8 of the Convention provides that no one shall be held in servitude and it prohibits slavery and slave trade in all forms.

In India, the Constitution prohibits bonded labour and beggar. Article 23 of the Constitution prohibits traffic in human beings and forced labour. It prohibits 'beggar' which is forced involuntary labour without payment. Further, the Directive Principles of State Policy lay down the principles of equal pay for equal work. These are also fundamental towards abolishing the practice of bonded or forced labour.

The Bonded Labour System (Abolition) Act, 1976 also lays down provisions relating to the abolition of slavery. Section 2 defines bonded labour system as system of fully or completely forced labour in lieu of any debt or by virtue of birth. Section 4 of the Act provides that with the commencement of this Act, all bonded labourers are discharged from any obligation to render bonded labour and stand free. Section 5 further abolishes all customs validifying bonded labour. Section 6 of the Act further extinguishes all obligations to repay debt. The Act further lays down provisions as to vigilance committees and empowers the District Magistrate to ensure the compliance with the provisions of the Act and take action against violations. Enforcement and advancement of bonded labour is punishable under the Act and tried by Executive Magistrate.

However, after all these legal provisions also, the menace of slavery still exist the world over. It needs to be addressed at public platforms. Social consciousness alone can curb it.

Doctrine of public trust

The public trust doctrine provides that certain resources are preserved for the public use and the government is required to preserve and maintain the same for public’s reasonable use. This doctrine is used mainly in the conservation of natural resources specially the non renewable ones like fossil fuel.

The public trust doctrine is an important aspect of the concept of sustainable development. It aims at creating and preserving a reserve of resources while handling developmental activities.

In the case of M C Mehta vs Kamal Nath[1], the Apex Court stated that the doctrine of public trust is applicable in India. In the given case, the lease granted on 27 bigha and 12 biswas of land to the Span Motels private limited was set aside and the Himachal Pradesh government was ordered to restore the land to its original natural condition.

In the case of Shri Balaji park residents welfare vs vice chairman, Vishakhapatnam[2], the Andhra Pradesh High Court observed that: “The obligatory functions leave no manner of doubt that park being a property having vested in the Municipality, has the duty to maintain the develop the same. It, of course, has a discretionary duty, inter alia, to construct and maintain a Community Hall but the same cannot be done at the cost of ecology and greenery. The State, as noticed hereinbefore, has a duty to look after the environment, safety and improvement.”

In T.N. Godavarman Thirumulpad vs Union of India & Ors[3], the Supreme Court observed “that Natural resources are the assets of entire nation. It is the obligation of all concerned including Union Government and State Governments to conserve and not waste these resources. Article 48A of the Constitution of India requires the State shall endeavour to protect and improve the environment and to safeguard the forest and wild life of the country. Under Article 51A, it is the duty of every citizen to protect and improve the natural environment including forest, lakes, rivers and wild-life and to have compassion for living creatures.”

The doctrine finds its importance in matters relating to allotment of petrol pumps, lease of land, use of non renewable energy sources and other natural resources likes minerals.

The concept behind this doctrine is that it is the duty of the government to conserve natural resources for the use of future generations.

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[1] (1997)1 SCC 388

[2]AIR  2001 AP

[3] 2005 SC

Divorce under Muslim law

Kinds of Divorce:

A Muslim marriage can be dissolved in the following manners:

(1)    By husband

(A)   Talaq

(i)                  Talaq-us-sunnat

(a)    Ahsan- husband pronounces talaq in one pronouncement, during wife’s period of tuhr and abstains from intercourse during the period of iddat. Cohabitation revokes talaq. It becomes irrevocable on the expiry of iddat period.

(b)   Hasan- three successive pronouncements during wife’s period of tuhr or at gap of 30 days each and no sexual intercourse during these three periods of tuhr. It becomes irrevocable on third pronouncement.

(ii)                Talaq-ul-biddat- irregular mode of talaq. Shias and malikis do not recognize it. In this, the husband pronounces talaq in one sentence only. It is also known as ‘triple talaq’.

(B)   Ila- husband of sound mind swears by God that he will abstain from sex and abstains for four months or more. Ila is cancelled by having intercourse during four months or a verbal restriction thereof. Ila is not practiced in India.

(C)   Zihar- a sane and adult husband compares his wife to his mother or other females within prohibited degree. Wife has right to refuse sexual intercourse till he frees a slave, fasts for two months or feeds sixty poor people or she can apply to the court requiring him to perform penace or for regular divorce.

(2)    By wife- talaq-e-tafwiz- wife pronounces divorce to herself under husband’s delegated power. Wife does not divorce her husband but divorces herself on behalf of the husband.

(3)    By mutual consent

(A)   Khula- there is an offer by the wife accepted with the consideration (evaz) for release and the offer is accepted by the husband.

(B)   Mubarat – the offer may be from either side, it becomes irrevocable once it is accepted.

(4)    Lian (false charge of adultery)- where a husband charges his wife of adultery and the charge is false, the wife can sue for and obtain divorce.

(5)    Faskh- a muslim woman can approach qazi for the dissolution of her marriage.

(6)    By judicial decree under Dissolution of Muslim Marriage Act, 1939- under section 2 of the Act, a muslim woman can obtain a decree for the dissolution of her marriage on the following grounds:-

(i)                  Absence of husband

(ii)                Failure to maintain

(iii)               Imprisonment of husband

(iv)              Failure to perform marital obligations

(v)                Impotency of husband

(vi)              Insanity, leprosy or venereal disease

(vii)             Repudiation of marriage by wife

(viii)           Cruelty of husband

(ix)              Grounds of divorce recognized by muslim law- includes ila, zihar, khula, mubarat and tafweez.

Difference between shia and sunni school of law

(1)    Under Sunni law talaq may be orally or in writing but shia school does not recognize talaq in writing unless husband is physically incapable of pronouncing it.

(2)    Sunni law does not require witnesses but shia law requires two male witnesses at the time of pronouncement.

(3)    Under shia law, intention is essential, talaq pronounced in intoxicated state or jest not valid while it is valid under sunni law.

(4)    Sunni law recognizes talaq-ul-sunnat as well as talaq-ul-biddat while shia law recognizes only talaq-ul-sunnat.

Recidivism

Recidivism may be defined as the tendency to repeatedly indulging in criminal activities. A recidivist repeats the offence again and again even after he has been arrested and punished. The persons involved in such activities may include individuals that are emotionally unstable, those who have received inadequate correctional measure, unskilled, less educated persons or hardened criminals. Individuals who feel mistrusted are more likely to repeat offences. They generally form a group and commit the offence in group. The crimes that are most commonly repeated include theft, robbery, burglary, larceny, forgery, etc.

Open air camps and correctional work inside prisons are thought to be effective measure for the reformation of the criminal. Adequate after care on release to rehabilitate the individual for upright living is also essential. Further, the cases should be treated in fast track courts so that the reformative procedures are taken upon as early as possible instead of making the individual more prone towards committing offences.

Restitution of conjugal rights under Hindu law

Marriage according to Hindu law is a sacrament. By saying that marriage is a sacrament it means that the primary function of marriage is the performance of religious and spiritual duties by married couple and that the union is a permanent one.

In order to maintain the permanancy of marriage, law provides for the provision of restitution of conjugal rights in the event of one party withdrawing from the society of the other without any reasonable cause. The law seeks to maintain a stability of marital relations and favors all attempts in order to prevent the breakdown of marriage.

Section 9 of the Hindu Marriage Act provides for the restitution of conjugal rights.

Section 9 states that: When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights land the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

The essential provisions of this section are:

(1) One party has withdrawn from the society of the other,

(2) Such withdrawl is without any reasonable reason,

(3) The aggrieved party applies for the restitution of conjugal rights.

The object of decree of restitution of conjugal rights is to bring about cohabitation between the estranged parties so that they an live together in the matrimonial house with amity. It does not aim at forcing a person to sexual relationship. Further, the decree is granted if the reason for withdrawl is not reasonable. If the court finds that the petitioner is guilty then the decree of restitution of conjugal rights is not granted. Further, if after the passing of the decree, the parties do not cohabit continuously for one year, then it beomes a ground for dissolution of marriage under Section 13.

Reasonable grounds for withdrawal:

(A)   If there exists a ground on which the respondent can claim any matrimonial relief.

(B)   If the petitioner is guilty of any matrimonial misconduct.

(C)   If the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him.

Husband’s neglect of his wife[1] or the constant demand for dowry[2] is reasonable grounds for the wife to stay at her parent’s place.

Burden of proof:

The initial burden to prove that the respondent has withdrawn from the society of the petitioner is on the petitioner. Once that burden is discharged, it is for the respondent to prove that there exists a reasonable excuse for the withdrawal.[3]

Constitutional validity of Section 9

It has been contended in many cases that Section 9 of the Hindu Marriage Act, 1955, is violative of right to privacy under Article 21. In many cases the wife has stated that the Section is misused by husbands to force the wife into living with them against her wish. In the case of T Sareetha v T Venkata Subbaih[4], the court observed that Section 9 is violative of right to privacy and human dignity given under Article 21 of the Constitution and hence, ultra vires the Constitution. However, this was overruled by the Supreme Court in Saroj Rani v Sudarshan.[5]
Law seeks to provide stability of marriage, it does not force a person into unwanted relations. The decree is passed only when there is an unreaonable withdrawl of society. However, it maybe misused by husbands or wives into coercing their unwilling partners into cohabitation. Therefore, it is the duty of the courts to enquire judiciously and order accordingly.

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[1] Ram Chandra v Aadarsh AIR 1987 Del 99

[2] Ashok v Shabnam AIR 1989 Del 121

[3] Atmaram v Narbada AIR 1980 Raj 35

[4] AIR 1983 AP 356

[5] AIR 1984 SC 1562