Preamble of Indian Constitution- nature and significance

Preamble has been taken from the Latin word Praembulus which means introduction and every  act comes up with the Preamble. It is an introductory statement for any act or legislations which  tells about the purpose, philosophy, ideas & aspirations, principles and objective. The Preamble  is borrowed from US Constitution. When Supreme Court struck down article 377 of IPC, it also  held one of the provision of the preamble i.e. dignity of individual. Therefore, preamble is the  integral part of the constitution and it reflects upon the society. 

The Preamble states: 

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a  SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its  citizens: 

JUSTICE, social, economic and political; 

LIBERTY of thought, expression, belief, faith, and worship; 

EQUALITY of status and opportunity; 

and to promote among them all 

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; 

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949, do HEREBY  ADOPT, ENACT AND GIVE OURSELVES THIS CONSTITUTION. 

• ‘We the people’ are the Source of the Indian Constitution 

• Sovereign, Democratic, secular, Socialist, Republic are the Nature of the Preamble • Justice, Equality, Liberty are the objectives of the constitution.  

• The Preamble promotes fraternity for maintaining the unity and integrity of the nation Preamble was modified for only once in the 42nd amendment of the constitution and only three  words were added i.e socialist, secular, integrity.

The Contents of the Preamble 

Sovereign: The word “Sovereign” means India is an independent nation and it can manage the  internal manages by itself. No external power can interfere in the internal matters of the India.  

Socialist: The word “Socialist” was added to the Preamble by the 42nd Constitutional  Amendment in 1976. Generally, we relate socialist word from communist theory which means,  government has control over means of production either wholly or partially. The Socialist word  is inspired from the philosophies of the Mahatma Gandhi and Jawaharlal Nehru and its objective  is to establish ‘welfare state’ 

Secular: The term “Secular” means that all religions that equal respect, protection, and support  from the state. It was also added to the Preamble by the 42nd Constitutional Amendment in 1976. India has positive secularism. 

Democratic: “Democratic” indicates the Constitution established a form of government which is  by the people, for the people, and of the people. Democracy is of two types, Direct and Indirect  Representative. In India, we have Indirect Representative which is also called Representative  form of Democracy. 

Republic: In a Republic state, the head of the state is elected either directly or indirectly by the  people. 

Justice: The expression “Justice” embraces three forms: social, economic, and political through  provisions of Fundamental and Directive principles. 

Liberty: The word “Liberty” means the liberty of expression, thought, faith, belief, and worship.  It also provides freedom from slavery, discrimination, despotism. 

Equality: The word “Equality” provides equal status and opportunities to all the citizens and  people of the country. 

Fraternity: “Fraternity” means a feeling of brotherhood. The Preamble urges the people to  assure the dignity of the individual and unity, the integrity of the nation. 

The significance of the preamble is as follows: 

• The preamble embodies the basic philosophy and fundamental values on which the  constitution is based.

• It contains the grand and noble vision of the constitution assembly. 

• It reflects the dreams and aspirations of the founding father of the constitution. • It reveals the source of the authority of the constitution i.e. the people of India in the opening  words of it. 

• It tells the nature of Indian state as sovereign, socialist, secular, republic and democratic  polity. 

• It specifies the objective of the constitution as justice, liberty, equality and fraternity to its  people. 

• It is also important in understanding the ambiguous provision of the constitution. • It helps the common man understand what our constitution is about, given the simple  language, unlike the constitution itself which is tough to understand. 

• It helps the Supreme Court in making judgments regarding whether a particular  provision/legislation is in line with the spirit of the constitution. 

Conclusion 

Preamble has the major importance in the Indian Constitution and the legislation. Pandit Thakur  Das Bhargava, a member of constitution assembly, was very right when he summed up the  importance of the Preamble in following words – “The preamble is most precious part of the  constitution. It is the proper yardstick with which can measure the worth of the constitution.”

-Isha Singh 

IMS Law College, Noida

PLACE OF SUING UNDER CPC, 1908

Section 15-20 of civil procedure code, 1908 deals with Place of Suing. It basically says that  every suit must be instituted in the lowest court so that it could save the time of the courts. The  jurisdiction is fixed by the government. Place of suing is important because it has authority of  courts to decide cases according to their territorial jurisdiction  

There are three kinds of jurisdiction to determine the place of suing: 

• Pecuniary Jurisdiction 

• Territorial Jurisdiction 

• Subject Matter 

The above- mentioned jurisdictions are the prime factors to determine the place of suing. If the  important factors of jurisdiction (Pecuniary, Territorial, Subject matter) does not fulfill the  requirement of the jurisdiction then it will be considered as a lack of jurisdiction and when the  court has no jurisdiction, whatever the decisions will be taken it will become void. 

1. Pecuniary Jurisdiction 

Pecuniary literally means ‘related to money’. All courts have their pecuniary limits. Courts can  take only those cases which do not exceed their allotted pecuniary value. It means, the courts  cannot entertain the suit beyond its particular limit. For instance if the pecuniary jurisdiction of  the court is, till ₹1,00,00,000 - then it can't entertain a suit involving more money than that. Therefore, there is no pecuniary limit on High court and District court. 

2. Territorial Jurisdiction 

Every suit regard to recovery/partition/sale, mortgage or redemption/determination of any right  or claim/compensation for wrong to immovable property or for recovery of movable property  shall be instituted in the court within the local limits. For instance, Anil lives in Delhi and Sunil 

lives in Kolkata and Anil goes to Kolkata and publishes defamatory statement towards Sunil so  the plaintiff (Sunil) has a right to file a case in both Delhi and Kolkata. This is the basic principle  of law that the suit are generally filed in court of law within whose jurisdiction the whole or a  part of cause of action arose. Causes of action are the facts regard to claim, relief that gives the  plaintiff the right to bring a legal action. 

3. Subject Matter Jurisdiction 

It is the authority of a court to hear cases on a particular type of or cases related to any specific  subject matter. For example, juvenile courts are for below 18 years of age. Subject matter of any  case is very important as it conveys as to what matter and which matter comes into the  jurisdiction within the local limits of the jurisdiction. 

Cases 

• Karan Singh Vs Chaman Paswan  

When the court commits an error in entertaining the suit with regard to pecuniary or territorial  jurisdiction then the decision given by such court will not be void but will be considered as the  illegal exercise of jurisdiction. 

• Shri Panch Nagar Parak vs Purushottam Das 

If there are no express provisions in any statute the court needs to look into purpose, scheme and  relevant provisions of the Act in order to determine implied exclusion of the jurisdiction of a  civil court. 

Conclusion 

The concept of the place of suing is very important as it helps to determine the jurisdiction of  each court. It helps to the plaintiff where to file a suit. It saves the time of the court in  determining the jurisdiction of the court.

-Isha Singh 

IMS Law College, Noida

JURISDICTION UNDER CPC, 1908

 Jurisdiction means authority of the courts to deal with matters which come before it for  adjudication. Courts doesn’t have unlimited jurisdiction somewhere it has limited jurisdiction but  for instance there is no limit of jurisdiction then it would have unlimited jurisdiction. Courts can  only get limited jurisdiction through charter, statute or commission. The civil Court shall have  jurisdiction to try all the suits except the suit which impliedly or expressly barred. Court has  power to make legal decisions and judgment. 

If a court doesn’t have jurisdiction then whatever the legal decisions would be taken by the court  it will become void. Basically the Jurisdiction of court is determined by the legislature. The court  must take cases related to private rights and it shall not deal with criminal matters. 

According to section 9 of CPC: 

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a  civil nature excepting suits of which their cognizance is either expressly or impliedly barred. 

[Explanation I].- A suit in which the right to property or to an office is contested is a suit of a  civil nature, notwithstanding that such right may depend entirely on the decision of questions as  to religious rites or ceremonies. 

[Explanation ll].- For the purposes of this section, it is immaterial whether or not any fees are  attached to the office referred to in Explanation I or whether or not such office is attached to a  particular place.]. 

In the case of P.M.A Metropolitan vs Moran Mar Marthoma [1] 

• The phrases used in section 9 has a positive and negative meaning 

• The earlier part has a wider sense as it covers all the matter of civil nature; on the other hand,  the latter part has a wider sense as it excludes the matter which is impliedly or expressly barred. • The two explanations mentioned in Section 9 expresses the legislative intentions. • It cast an obligation on the court to exercise the jurisdiction for the enforcement of private  rights 

• No court is at discretion to refuse the matter which falls under this section

• It is mandatory to take the cognizance of matter because the word “shall” is used which means  that it is a mandatory section. 

 Categories of Jurisdiction 

• Civil and Criminal Jurisdiction 

• Original and Appellate Jurisdiction 

• Jurisdiction over Subject Matter 

• Local or Territorial Jurisdiction 

• Pecuniary Jurisdiction 

1. Civil and Criminal Jurisdiction 

In civil jurisdiction, the courts are empowered to adjudicate cases related to private rights or  which is civil in nature. It includes defamation (including libel and slander), breach of contract,  negligence resulting in injury or death, and property damage. 

In criminal jurisdiction, the courts are empowered to adjudicate cases which deals with the  behavior that is or can be an offense against the society, state or public. Examples are, murder,  assault, theft, etc. 

2. Original and Appellate Jurisdiction 

Courts with original jurisdiction can conduct trial of cases. Such courts are court of first instance.  It entertains and decides original suits. 

Courts with appellate jurisdiction can entertain appeals from the orders and judgments from  lower courts. 

3. Jurisdiction over subject matter 

The court has a power to entertain a certain kinds of cases related to particular subject matter.  Subject matter may be civil disputes, consumer disputes, family disputes, etc. 

4. Local or Territorial Jurisdiction

Civil Court of different grades can entertain suits for different geographical area. A court can  entertain disputes occurred in their local or territorial jurisdiction. Local Jurisdiction is fixed by  the state. A District court has jurisdiction over the district, a High Court has jurisdiction over the  state. Similarly other courts have their local jurisdiction. 

5. Pecuniary Jurisdiction 

Civil courts of different grades have jurisdiction to try suits and appeal of different pecuniary  value. Every suit or appeal has pecuniary value and according to which suit is to be filed before  appropriate court. A suit is valued on the basis of value of damages, compensation, property  involved, or as per the court fees. Every court has a limited pecuniary value it cannot entertain  suit exceeding its pecuniary jurisdiction. 

Conclusion 

Jurisdiction of courts is must as people who want to file a suit in different matters can go to the  courts according to the subject matter of the suit. It saves time of the court so that it can prevent  from the unnecessary delays.

-Isha Singh 

IMS Law College, Noida

Stridhan-women’s property

 Introduction 

Stridhan is mostly defined by just two words, "women's property". This is somewhat correct but  is very vague, not every property of the women can be called as Stridhan. The main purpose of  Stridhan is to provide sustenance and support to the women to whom the Stridhan is given. Since  ancient times, women are being suppressed for the stridhan on a large extent moreover the  property owned by the woman ultimately belonged to her husband after the marriage.  

In the year 1937, a law enacted for women called Women’s Right to Property and this was the  first step taken for women’s right although it didn’t benefit much to women. The Parliament  enacted another law called Hindu Succession Act, 1956 and according to section 14 of the Hindu  Succession Act, 1956 gives absolute rights to women. The Act was the biggest change in the  history as women had more rights and from that they could ask for remedy of it. 

Stridhan 

The word ‘Stridhan’ constitutes of two words namely, ‘stri’ meaning woman and ‘dhana’  meaning property. Stridhan is the property that is given to women at the time of her marriage. In  earlier times, when people were not aware of this term the cases of domestic violence was on  peak so the parliament has made strict laws regarding stridhan as it is the only a women’s  property. Women have an absolute right over their stridhan.  

For a married woman Stridhan falls under two heads: 

• The Saudyika(gifts of love and affection): Gifts received by a woman from relations on  both the sides (parents and in-laws) 

• The Non-saudiyaka: All other types of stridhan such as gifts from strangers, property  acquired by self-exertion or the mechanical arts. 

Difference between Dowry and Stridhan 

Dowry and stridhan are contrasting to one another. Majority of people don’t know the exact  meaning of Dowry and Stridhan and according to them they both are identical. Under the  domestic law, dowry means any property or valuable property which is given by the bride’s side  to the bridegroom’s family during or after the marriage. The main element in Dowry and  Stridhan is ‘demand, undue influence and coercion’. Usually dowry is given due to demand by  the groom’s side and stridhan need not be demanded. Something which is voluntarily given to a  female is stridhan.

Cases 

• In Bhai sher Jang Singh v. Smt. Virinder Kaur, Punjab and Haryana High Court had  ruled that the groom’s side is bound to return back all the items including, property,  ornaments, money and other belongings offered by the bride’s side at the time of marriage, if  claimed. In the case of denial, the groom’s family is tending to get strict punishment. 

• In Ashoke Chadha v. IOT, The High court in new Delhi held that ‘Stridhan’ in the form of  jeweler given over a span over 25 years cannot be said to be an unexplained investment u/s  69A of Income Tax Act,1961 

• In Pratibha Rani V. Suraj Kumar It was held that the woman is the absolute owner of her  Stridhan and she can use it the way she wants to. It also held that in ordinary circumstances,  the husband will have no right or interest in the Stridhan nonetheless in times of extreme  distress he can use that but has to restore it back when he is able to do so. This is the one of  the landmark judgment on stridhan. 

Conclusion 

Stridhan is one of the major rights of the women it is the most powerful thing in this modern era.  Before 1956 two terms were used as women’s estate and stridhan they have limited rights at that  time. The husband has the limited right over it and can use it during an emergency. Thus,  Marriage expenses and dowry are not stridhan.

-Isha Singh 

IMS Law College, Noida

MAINTENANCE UNDER HINDU LAW

 “Maintenance” is an amount payable by the husband to his wife who is unable to maintain  herself either during the subsistence of marriage or upon separation or divorce. It is given to the  spouse to fulfill the basic needs. In this modern era of times Maintenance is also given by the  wife to his husband, if husband is unable to sustain his life. The maintenance shall be given to  the legally wedded wife. If husband is unable to maintain his wife it not a valid ground for  divorce. The main purpose of the maintenance is to maintain the standard of living as she was  before marriage.  

The three main legislations of maintenance are as follows: 

• Hindu Marriage Act, 1955 

• Hindu Adoption and Maintenance Act, 1956 

• Criminal Procedure Code, 1973 

Maintenance includes 

▪ Food, clothing, residence, medical treatment, education 

▪ In case of unmarried daughter all the expensed incurred in her marriage shall be given 

The spousal maintenance is determined on the existence of various factors by the court as  follows: 

I. The first and foremost thing is to be checked whether a spouse seeking maintenance has  any separate source of income or he/she is totally dependent on his/her spouse. II. Standard of living of both the litigating parties before separation. 

III. The Expenses required to maintain children 

IV. Requirement to maintain the same standard of living of the spouse as it was before the  separation 

V. Any skills, capabilities of the spouse etc.

The Hindu Adoption and Maintenance act lays down the provision relating to maintenance rights  of a woman under Hindu Laws. Under this act, it includes 

• The wife 

• Daughter in Law 

• Children 

• Elderly Parents 

• Other dependents have right to claim maintenance 

Types of Maintenance 

1. Temporary Maintenance (pendente lite): Temporary maintenance or interim  maintenance is the maintenance awarded by the court during the continuation of the  litigation process. Basically it is given by the either party, who is insufficient to give  litigation fees. It is mentioned in section 24 of Hindu Marriage Act, 1955. Temporary  maintenance may also be claimed under section 125 crpc. Interim maintenance has to be  disposed of within sixty days of service of notice on the respondent. 

2. Permanent Maintenance: It is the maintenance which is awarded by the court  permanently. According to section 25 of the Hindu Marriage Act, 1955, petitioner either  wife or husband is entitled to receive maintenance either monthly or gross or periodical  sum for a term not exceeding the petitioner’s lifetime. According to section 18 of Hindu  Adoption and Maintenance Act ,1956, Hindu wife shall be entitled to get maintenance from  her husband during her lifetime. While living with her husband. 

Wife also has a right to separate residence and maintenance if any of the condition in  Section 18(2) [desertion, cruelty, leprosy, any other wife/ concubine living in the same  house, conversion of religion or any other reasonable cause] is fulfilled until she remains  chaste or does not convert to other religion. Section 19 of this Act makes a provision for a  widowed wife to be maintained by her father-in-law. 

  Section 125 of Criminal Procedure Code, 1973, provides for maintenance not only to the  wife but also to child and parents. Court may order a husband who has sufficient means but  neglects or refuses to maintain his wife who is unable to maintain herself to provide  monthly maintenance to her.

Wife is not entitled to get maintenance 

• If she is living in adultery 

• If she remarries 

• If she converts into another religion 

• If she is in Live in relationship 

Cases: 

• In Shailja & Anr. v. Khobanna[ CRIMINAL APPEAL NOs. 125-126 of 2017], the  Supreme Court made a remarkable observation by stating that merely because the wife is  capable of earning it is not a reason to reduce the maintenance awarded to her and said that  whether a wife is capable of earning and is actually earning are two different factors. 

• In Padma Sharma v. Ratan lal Sharma, It was held that Hindu earning mother is also  obliged to maintain her children. Both, a Hindu Divorcee father and a Hindu divorcee  earning mother are obliged to contribute for maintenance of their children under the Hindu  Adoption and Maintenance Act, 1956. Father is not exclusively responsible to maintain  children regardless of mother being affluent. 

Conclusion 

The concept of maintenance is old but women didn’t have rights to claim her maintenance.  Section 125 of Crpc changed the concept of it. It has rights to women who are unable to maintain  herself and their children. This change has been the revolutionary change for women in India and  whenever the court talks about maintenance the shahbano’s case is the landmark judgment under  section 125 crpc.

-Isha Singh 

IMS Law College, Noida