Murder. By Media?

If you were in India and if you had a TV set in the last few months, there is absolutely no chance of you not knowing about the Aarushi murder case.

Aarushi was found dead with her throat slit and multiple stab injuries on her body in her Noida home. The case pending trial revived the heavy debate on media-trial.Media persons’ role in reporting sub-judice matters (that is, matters which are pending trial in the Courts) has come under the scanner once again.High time.

A Public Interest Litigation petition was recently filed seeking a direction to the media to maintain restraint in reporting sub-judice cases like the Aarushi murder case. A bench headed by Mr Justice Altamas Kabir asked the Centre and the state government to find out if there was the possibility of a mechanism to put some restraint on reporting sub-judice matters.

On one hand, there is justice at stake and on the other, freedom of expression. The debate continues.

Karan Thapar v. Arjun Singh

A masterpiece of a dialogue. Dominated by Thapar of course.

Karan Thapar: Do you personally also, as Minister of Human Resource Development, believe that a reservation is the right and proper way to help the OBCs?
Arjun Singh: Certainly, that is one of the most important ways to do it.
Karan Thapar: The right way?
Arjun Singh: Also the right way.
Karan Thapar: In which case, let's ask a few basic questions; we are talking about the reservations for the OBCs in particular. Do you know what percentage of the Indian population is OBC? Mandal puts it at 52 per cent, the National Sample Survey Organization at 32 per cent, the National Family and Health Survey at 29.8 per cent, which is the correct figure?
Arjun Singh: I think that should be decided by people who are more knowledgeable. But the point is that the OBCs form a fairly sizeable percentage of our population.
Karan Thapar: No doubt, but the reason why it is important to know 'what percentage' they form is that if you are going to have reservations for them, then you must know what percentage of the population they are, otherwise you don't know whether they are already adequately catered in higher educational institutions or not.
Arjun Singh: That is obvious - they are not.
Karan Thapar: Why is it obvious?
Arjun Singh: Obvious because it is something which we all see.
Karan Thapar: Except for the fact that the NSSO, which is a government appointed body, has actually in its research in 1999 - which is the most latest research shown - that 23.5 per cent of all university seats are already with the OBCs. And that is just 8..5 per cent less than what the NSSO believes is the OBC share of the population. So, for a difference of 8 per cent, would reservations be the right way of making up the difference?
Arjun Singh: I wouldn't like to go behind all this because, as I said, Parliament has taken a view and it has taken a decision, I am a servant of Parliament and I will only implement.
Karan Thapar: Absolutely, Parliament has taken a view, I grant it. But what people question is the simple fact - Is there a need for reservations? If you don't know what percentage of the country is OBC, and if furthermore, the NSSO is correct in pointing out that already 23.5 per cent of the college seats are with the OBC, then you don't have a case in terms of need.
Arjun Singh: College seats, I don't know.
Karan Thapar: According to the NSSO - which is a government appointed body - 23.5 per cent of the college seats are already with the OBCs.
Arjun Singh: What do you mean by college seats?
Karan Thapar: University seats, seats of higher education.
Arjun Singh: Well, I don't know I have not come across that far.
Karan Thapar: So, when critics say to you that you don't have a case for reservation in terms of need, what do you say to them?
Arjun Singh: I have said what I had to say and the point is that it is not an issue for us to now debate.
Karan Thapar: You mean the chapter is now closed?
Arjun Singh: The decision has been taken.
Karan Thapar: Regardless of whether there is a need or not, the decision is taken and it is a closed chapter.
Arjun Singh: So far as I can see, it is a closed chapter and that is why I have to implement what all Parliaments have said.
Karan Thapar: Minister, it is not just in terms of 'need' that your critics question the decision to have reservation for OBCs in higher education. More importantly, they question whether reservations themselves are efficacious and can work.
For example, a study done by the IITs themselves shows that 50 per cent of the IIT seats for the SCs and STs remain vacant and for the remaining 50 per cent, 25 per cent are the candidates, who even after six years fail to get their degrees. So, clearly, in their case, reservations are not working.
Arjun Singh: I would only say that on this issue, it would not be correct to go by all these figures that have been paraded.
Karan Thapar: You mean the IIT figures themselves could be dubious?
Arjun Singh: Not dubious, but I think that is not the last word.
Karan Thapar: All right, maybe the IIT may not be the last word, let me then quote to you the report of the Parliamentary Committee on the welfare for the Scheduled Castes and Scheduled Tribes - that is a Parliamentary body.
It says that looking at the Delhi University, between 1995 and 2000; just half the seats for under-graduates at the Scheduled Castes level and just one-third of the seats for under-graduates at the Scheduled Tribes level were filled. All the others went empty, unfilled. So, again, even in Delhi University, reservations are not working.
Arjun Singh: If they are not working, it does not mean that for that reason we don't need them. There must be some other reason why they are not working and that can be certainly probed and examined. But to say that for this reason, 'no reservations need to be done' is not correct.
Karan Thapar: Fifty years after the reservations were made, statistics show, according to The Hindustan Times, that overall in India, only 16 per cent of the places in higher education is occupied by SCs and STs. The quota is 22.5 per cent, which means that only two-thirds of the quota is occupied. One third is going waste, it is being denied to other people.
Arjun Singh: As I said, the kinds of figures that have been brought out, in my perception, do not reflect the realities. Realities are something much more and of course, there is an element of prejudice also.
Karan Thapar: But these are figures that come from a Parliamentary Committee. It can't be prejudiced; they are your own colleagues.
Arjun Singh: Parliamentary Committee has given the figures, but as to why this has not happened, that is a different matter.
Karan Thapar: I put it to you that you don't have a case for reservations in terms of need; you don't have a case for reservations in terms of their efficacy, why then, are you insisting on extending them to the OBCs?
Arjun Singh: I don't want to use that word, but I think that your argument is basically fallacious.
Karan Thapar: But it is based on all the facts available in the public domain.
Arjun Singh: Those are facts that need to be gone into with more care. What lies behind those facts, why this has not happened, that is also a fact.
Karan Thapar: Let's approach the issue of reservations differently in that case. Reservations mean that a lesser-qualified candidate gets preference over a more qualified candidate, solely because in this case, he or she happens to be an OBC. In other words, the upper castes are being penalized for being upper caste.
Arjun Singh: Nobody is being penalized and that is a factor that we are trying to address. I think that the prime Minister will be talking to all the political parties and will be putting forward a formula, which will see that nobody is being penalized.
Karan Thapar: I want very much to talk about that formula, but before we come to talk about how you are going to address concerns, let me point one other corollary - Reservations also gives preference and favor to caste over merit. Is that acceptable in a modern society?
Arjun Singh: I don't think the perceptions of modern society fit India entirely.
Karan Thapar: You mean India is not a modern society and therefore can't claim to be treated as one?
Arjun Singh: It is emerging as a modern society, but the parameters of a modern society do not apply to large sections of the people in this country.

Baby on Board!

When your neighbor's kid learns to drive a car at the age of fourteen and whizzes around the layout shaking Gulmohars and Grandmas alike, the first reaction from his parents is that of unbearable pride.

When recently, an unqualified minor, a mere 10th standard student, son of gloating doctor parents performed a cesarean on a patient, it was first reported in the media as an attempt to the Guinness book of world records. When the Medical Council rightly took the parents of the kid to task, the argument of the defense attorney was that the Medical association was "jealous" and was hindering their son's progress. Parents of underage children are widely at fault not only in the above instance but also where children supposed to be running on playgrounds run amok with cars, driving drunk.

With increasing number of road accidents involving vehicles driven by under-age boys (of course without a license), especially ones like what happened on the Gurgaon expressway where three teenagers too drunk to care ran over an under-age boy, I stand by what the Union Minister Renuka Chowdhary had to say " The Road Transport Ministry should amend the law and bring parents into ambit to deal with such cases. The license of the father, for instance, must be revoked to keep a check on such incidents."

After all, there is a reason why they are not allowed to vote and drink and drive on roads.

Defrauded !

It was interesting indeed that you made the statement ‘Man exists at the mercy of the woman’. I had a pretty much interesting moot problem this week, wherein I had to file an application for annulment of marriage on grounds of fraud by the lady – the contended fraud being, that she had not informed him about an abortion she from a pre marital relationship.

Sunder, a Hindu married Preeti in 2007 at Jaipur. As established by her high school certificate, Preeti was one year younger to Sunder. Immediately after marriage, when Sunder on the advice of a friend took Preeti’s horoscope to a Pundit, he said according to her horoscope, the girl was 5 years older to Sunder. The same day, Preeti fainted in the market and was taken to a Doctor where it was discovered, Preeti was aborted before the marriage. Preeti admitted her guilt to a love affair with a college mate Rehan. The fact of abortion was neither disclosed nor apparent to deduction before marriage. Sunder filed an application for annulment of marriage as he states he was cheated and his consent to marriage was obtained by Fraud.

The term ‘fraud’ is not defined in the Hindu Marriage Act. It is axiomatic that particularly forced consent or consent obtained by non disclosure of material fact amounts to fraud and Hindu marriage being a sacrament, can be nullified under such circumstances. Fraud here procures the appearance of consent without the reality of consent i.e. where there is no real consent at all.

Fraud, has been defined by the Marriage Laws (Amendment) Act, 1976 in relation to the nature and ceremonies or as to any material fact or circumstances concerning the Defendant. The test of validity is the real consent to the marriage as described by Rayden. “Fraud” within the meaning of Section 12(1)(c) of the Act means either deception as to the identity or other material facts of the other party to the marriage, or deception as to the nature of ceremonies being performed. The correct test to be applied is whether the fraud relates to a material fact.

Whether a misrepresentation or false statement or concealment is as to any such material fact, this is to a large extent dependent on the facts and circumstances of each case. But it must be something vital touching or affecting the Petitioner and such as it definitely induced or influenced consent.

In the present case, the Defendant endeavored to hide not only her previous illicit relationship with her college mate Rehan but she also withheld the abortion that she had.

It was held in the case of Rama Kanta v. Mohinder Laxmidas Bhandula that the withholding of information about a caesarean operation in addition to previous relationships, amounted to fraud. Similarly, in this case, by withholding the details about her abortion, the defendant has defrauded the petitioner.

The marriage can be annulled on grounds of concealment of material fact

Marriage is a sacrament according to the Hindus, if obtained by fraud; it affects the validity of the marriage.

Concealment of material fact succeeds as a ground for annulment of marriage as provided under Section 12 (1) (c) of the Hindu Marriage Act. Plaintiff’s consent was obtained by deception, misrepresentation and concealment of material facts as to pre-marital status of the defendant, plaintiff entitled to relief for annulment of marriage under Section 12(1)(c) of the Act.

Section 12(1)(c) reads :
Section 12 -(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
As per Section 12(1)(c) a marriage shall be voidable and may be annulled on the ground that the consent of the Petitioner was obtained by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the Respondent.

Whatever may have been the position prior to the amendment of Clause (c) of Section 12(1) of the Act, there can be no manner of doubt that after the amendment the marriage can be annulled under the amended section if the consent of the Petitioner was obtained by fraud, as to the nature of the ceremony or as to the nature of material fact or circumstances concerning the Respondent.

As has been established, the Defendant withheld a material fact, which if specified could have resulted in the non occurrence of the marriage. The consent of the Petitioner to marriage was therefore in light of absence of such knowledge. As the tests of material fact and real consent have not been respectively fulfilled, the marriage can be annulled as provided for by the Section.

Evidence of pre-marital pregnancy and abortion :

Any Hindu marriage is voidable and may be annulled by a decree of nullity on any ground mentioned in Section 12 of the Hindu Marriage Act,1955. If allegation of husband for pre-marital pregnancy of wife proved, marriage can be declared void.

In the present case,the doctor pronounced that Preeti was aborted before marriage and the defendant admitted to her guilt and confessed to a love affair with her college mate Rehan.

There is no rule of law requiring that in a petition under Section 12 of the Act, the evidence of the spouse must receive independent corroboration before it can be accepted as sufficient to justify the passing of a decree for nullity of marriage. Section 134 of the Evidence Act which provides that no particular number of witnesses shall in any case be required for proof of any fact embodies therein the principle that sufficiency of evidence is not a matter of number or quantity but of quality. Thereby, the sole word of the Defendant herself suffices as evidence of illicit relationship.

The doctor does not necessarily have to be a specialist in gynaecology for his/her evidence to be relied upon to prove that the respondent was pregnant any time before the marriage.Thereby the Doctor’s opinion is valid and final in present context.

The defendant has therefore defrauded the Petitioner into marrying her by hiding the fact of her previous abortion and thereby manipulating his consent for marriage.

If the material facts and circumstances are found to be false, the marriage becomes shaky. Mutual confidence is gone. Then what is the purpose of married life unless the love still remains. The falsity when significant can be called deception or misrepresentation.

There is no matter of doubt that under Section 12(1)(c) of the Act if the consent of the applicant was obtained by fraud as to the statute of ceremony or as to the nature of the material fact or circumstance concerning the Defendant , the marriage can be annulled. The consent of the Petitioner was obtained by fraud and misrepresentation as to material facts concerning the Defendant and that he is entitled to a decree of annulment under Section 12(1)(c) of the Act.

The general tendency of courts in cases dealing with fraud seems to be to sustain a marriage as far as possible. While no doubt this is a laudable object, it is also to be remembered that by their reluctance to set aside a marriage brought about by fraud, the courts may be indirectly encouraging fraud.

Therefore, the Plaintiff is entitled to a decree of annulment on grounds of fraud by the under Section 12(1) (c) of Hindu Marriage Act, 1955.

And in my defense...

Ah well said, Hakuna. It is quite a woman’s world out there. But being the devil’s advocate that I am, let me take the case of my primary client- Women!

As we have often strangled each other on, the Law by itself is always one sided. And not necessarily on the side that is right. That is, in fact, why we have courts and really old people with funny wigs chairing them. Now, that said, let me get on to this case in hand.

Yes, I do agree the DV law does not give much of a leeway for men. But take a more common-sensical approach to this issue. I will base my arguments on two use cases- the first stating why the law should not be scrapped based on victimizing men and two as to why such a law covering men’s rights does not make much sense in the context.

Quite obviously the law cannot be scrapped citing such superficial reasons as victimizing men.I could simply state that even murder trials have seen innocent victims going down as scapegoats and implications, so it is not much wonder here either. However my point lays foot on even more unshakable grounds.

Take a hike into any average middle class sub-urban household. Broomstick wielding, vessel throwing, tantrum palying women are only all too common. A richer household would torture the emancipated bread winner for yearly holidays, monthly ritualistic shopping and weekly movie haunts. Why, I have experienced an even worse fate with the many that have graced my short bursts at commitment. Being forced into watching some random emotional drama movie that we don’t like, touring down alleys of shops for things we could never buy and worse, I could never wear, meeting hoards of ‘society’ I don’t give a flying unparliamentary word for… Trust me, men are used to domestic violence!

Now its not that simple with women. Being the soft, delicate darlings that they are, pulling them in to watch a Simbu movie could quite prove disastrous. A decent enough girl could stop with pulling her hair apart and breaking up. The types that I hang out with would pull my hair apart and still not break up!

On a more serious note, think about that woman who gets beat up by a drunk husband every night. Think about that young girl who assumed a sweet life ahead and now gets tarnished physically, mentally and emotionally through every day. Think about that woman brave enough to break loose of her husband’s blows, run to the nearest police station and seek the state to save her from a life of distress. Think about the cop giving her a wry smile, doing a jingle and dance step, and telling her there is no law to do anything about.

Now lets take the case of men being victimized. The state does not give much importance to women raping men either. Not that its biologically infeasible, but rather because it is far too uncommon to become an extra chapter for law students to study. The ancient laws of Solomon (the Jewish king, not the guy who comes in Sirappu Pattimandrams) which was the most vast and expansive code of its times did not have a punishment for particide simply because the concept of killing one’s own parents was the rarest of rare happenings, if ever. Later the Mughals continued with it because it became a ritual in their ascension to the throne!

Look up to the skies and swear at the good lord for it, but biology, evolution and civilization have always conspired against men. Women get sexy body changes to amuse themselves at puberty. Men get broken voices. Women get all romantic and sexed up at the sight of sunset and kittens. Men need beer and those romantic , sexed up women for that. Women can cry even in dehydrated conditions in the Sahara. Men need to walk the camels in chivalry to find the water. To top it off, Women get monthly three day holidays and perennial headaches. Men just get urges.

Given this standing, men NEED to be chivalrous. If three guys stalked a girl in the dead of the night and tried to physically abuse her, I would imagine her a nervous wreck and extend my sympathies. If it was me on that lane that night and three girls on my tail, the best I can hope for is a couple of congratulations!

Now what does all this have to do with the topic we have? A lot. Men cannot be victimized simply because no self respecting man would ever accept it. Imagine a guy throws a case in court that his wife beat his ass red and says stuff to hurt him emotionally. Lets even extrapolate to assume he wins. What next? The closest he could ever get to society would be at the gay pub. And to change preferences over a couple of broken pans and bones? I don’t think so!

Coming a bit down south, I really do hope this law takes it big enough to be the cool thing to do. That way wannabe tamils would stop holding up Lalitha Jwellery surcharge necklaces and claim Thaali sentiment dialogs.

And to close my opening statement, let me assume I’m a victim guy being jailed for DV. And I refuse to provide. Now what? You can’t try me for something I’m already doing/ done the time for (Double Jeopardy). Moreover, if the DV is such a nasty tool to women in the country so is the dowry act. And haven’t you already visibly seen the avalance in dowry exchanges? One of my engineering friends from Andhra just got a hotel, a new Merc CLK and a honeymoon in Hawaii. Recession is sure having its effects now!

As a footnote: Guys, if you ever think you’r going to be in for DV just try rape. The time you do is pretty much the same and atleast with rape you don’t need to pay rent!

To Hakuna: “So, the man exists at the mercy of the woman”

And how do you think it is right now???