Madras High Court
G.Kavitha vs Union Of India on 29 June, 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29/06/2006 CORAM: THE HONOURABLE MR. JUSTICE M.E.N.PATRUDU Writ Petition (MD) No.2949 of 2004 G.Kavitha .. Petitioner vs. 1.Union of India, rep. by its Secretary, Ministry of Law and Justice, 401, A Wing, Sastri Bhavan, New Delhi. 2.The State of Tamil Nadu, rep. by its Chief Secretary, Fort.St George, Chennai - 9. .. Respondents Writ Petition under Article 226 of the Constitution praying to issue a Writ of Declaration declaring that Section 64 of the Criminal Procedure Code 1973 insofar as the restriction that service of summons shall be made only on adult male member of the family of the person summoned, is unConstitutional and void. !petitioner ... Mr. S.Nagamuthu ^For respondents ... Mr.Pon.Muthuramalingam Asst.Solicitor General of India for R1 Mr.K.Balasubramanian, Addl.Govt.Pleader for R2 :ORDER
1.00 Does Section 64 of the Code of Criminal Procedure (in short Cr.P.C.) is discriminatory against women or does it embody special provision in their favour.
2.00 This is the short question that arises for consideration in this Writ.
3.00 Learned counsel for the parties have referred to the facts as averred in the Writ Petition.
4.00 This may be briefly noticed.
4.01 Miss.G.Kavitha, a practising advocate and a member of Thanjavur Bar Association in Tamilnadu is the petitioner. According to her she is involved in social activities especially in the upliftment of the women and poor sections of the society.
4.02 Her prayer is for declaration and direction that Section 64 of the Cr.P.C is unConstitutional.
4.03 It is stated that u/s.64 of Cr.P.C., service of summons in criminal cases shall be only on the adult male member of the family of the person summoned in case of the absence of the person summoned, whereas in a civil suit, Order V Rule 15 provide for service of summons on adult male or female member of the family in case the defendant is absent.
4.04 It is thus contended that there is discrimination between male and female in respect of service of summons in a criminal case as such it is violating Articles 14,15 and 16 of the Constitution. Hence, Section 64 of Cr.P.C. be declared as unconstitutional.
4.05 The respondents contested without filing any counter.
5.00 Learned counsel for both parties have been heard.
5.01 Mr.S.Nagamuthu, learned Counsel representing the petitioner addressed the Court at first as per the general practice and procedure being followed. The learned counsel highlighted various points.
5.02 The main grievance ventilated on behalf of the petitioner is that there is no reason as to why the summons in a criminal case should not be served on adult female member of the family when the same is provided under Order V, Rule 15 of the Code of Civil Procedure and why should there be discrimination between the two Codes of Procedure and there should be equality before law and equal of justice.
5.03 The forcible contention of the learned counsel, Mr. S.Nagamuthu is that if a family consists of only husband and wife and if a criminal case is initiated against husband and if the husband is out of station and if the service of summons is not provided on his wife in his absence to inform him immediately to obey the law and to take further action, the citizen is put to hardship and mental agony.
5.04 The learned Asst.Solicitor General, appearing for the first respondent stated that the wisdom of the Parliament cannot be questioned by one person unless it is violative of any provisions of the Constitution.
5.05 On merits, it is stated that there is no restriction under Section 64 of the Code of Criminal Procedure to serve summons on a female member of a family and the section says that service of summons may be on adult male member of the family and the explanation of the Section 64 of the Code clarifies that servant is not a member of the family within the meaning of the family, therefore, the servant alone is excluded and the female member is not excluded and there is no specific bar on female adult member of the family to receive summons.
5.06 The Court has been taken through the academic discussions on this aspect.
6.00 Point:
6.01 Section 64 of the Code of Criminal Procedure is as follows:
"64. Service when persons summoned cannot be found - Where the persons summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the servicing officer, sign a receipt therefor on the back of the other duplicate. (Underlining is mine) Explanation - A servant is not a member of the family within the meaning of this section."
6.02 Rule 15 of Order V of the Code of Civil Procedure reads as follows:
"15. Where service may be on an adult member of defendant's family - wherein any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.(Underlining is mine) Explanation - A servant is not a member of the family within the meaning of this rule.
6.03 Plain reading of above clarifies that in a civil suit the adult male or female member can receive the summons but in criminal cases, it is restricted to male member. The legislature has not included female to receive summons in a criminal case. The reasons are unknown.
6.04 Now, it is to be discussed whether the provision under Section 64 of the Cr.P.C. embody protection in favour of women or it places a bar.
6.05 The Court has to think that the legislature is aware of the needs of the people and their living conditions and their status. Thus, to meet the needs, the Parliament is enacting laws with specific provisions that women shall not be compelled to expose for unnecessary litigation. According to traditional practice a woman is expected to know the four walls of her house. Her knowledge of chemistry was supposed to be confined to cooking in the kitchen. But, gratifying to note that the modern world have changed these age old practices. Now women are occupying high posts with tremendous responsibilities in every field of life. Some of our respected women are celebrities in this civilized society living with civic sense. They have even advanced themselves to a stage where they can hold their own field against anything in difficult situations. At the same time, their commitment to the family and to the social environment are not ignored and it is the men to realise that women cannot be entrusted with all sorts of duties, which men may be asked to perform, then only the society will survive.
6.06 Special provisions in the Constitution and other laws are made so as to ensure that the women are not harassed. It is on account of this practical knowledge, the Constitution makers have made a provision in Article 15(3) and the legislature was permitted to make special provisions to women and children. The purpose of Article 15(3) is to protect both the women and children against hazardous jobs and in several other spheres where the Parliament considered it necessary. But, as far as performing normal, regular and usual duties, jobs, there shall be no discrimination.
6.07 If so, there should not be any bar against women to receive summons on behalf of the person summoned either in a civil suit or in a criminal case. The intention of the Parliament is to protect women from unnecessary harassment and from the hazardous jobs. Receiving summons is neither a harassment nor ill treatment. Therefore, the obvious purpose to protect the women under Article 15(3) is different. In fact, Article 15(3) of the Constitution canvasses that there should be an equal opportunity to the women.
6.08 The place of women has been recognised in the Indian society since hoary past. The Constitution of India has made special provisions and it is intended to protect the honour and promote the interests of women. Besides all those, we should consider another important factor that the provisions of law should always recognize a social reality. It is a known fact that women shall always be taken care of their families.
6.09 It appears Section 64 of the Code places an unreasonable restriction on the right of women to receive summons to be handedover to the member of family summoned. By receiving such summons the woman is neither directed to appear before the Court as she is not a party for litigation. The intention of law in this regard is that adult member has to convey the receipt of summons to the person who has been summoned. This can be done either by a male or female member.
6.10 Learned Asst.Solicitor General contended that the provisions in Criminal Law is only to maintain privacy of the women and there are paradanashin ladies and there are other women, who may not be able to come out of their houses to receive summons as they have to give acknowledgements. If that is so, the Parliament can definitely in its wisdom can exclude such respectable ladies from receiving summons but it is unfair to bar all women for the sake of very view. Hence, the above contention is not accepted.
6.11 Learned Asst.Solicitor General also submits that in a criminal case, normally police will be serving the summons whereas in a civil suit process server of the Court will serve, therefore, the legislature has given its thought and directed that in criminal cases only male member has to receive the summons.
Section 62 of the Code of Criminal Procedure says that normally summons in criminal cases shall be served by the police officer but the State Government may make a rule in that behalf and it can be served by an officer of the Court or any other public servant. Further, even if a police constable is entrusted with the duty, there is nothing wrong.
Hence, I do not find any force in the above argument. The police officer is also a human being. He is equally respectable person like any other.
6.12 Article 14 of the Constitution of India mandates equality before the law. This doctrine of equality is a dynamic and evolving concept, which has many facets. It is embodied not only in Art.14 but also in Arts.15-18 of Part III as well as in Arts. 38, 39, 39A, 41 and 46 of Part IV. The object of all these provisions is to attain - "justice, social, economic and political which is indicated in the Preamble and which is the sum total of the aspirations incorporated in Part IV. Articles 14-18 must, therefore, be understood in the light of the several articles of Part IV."
6.13 The principle canvassed under the Article is that there should be no discrimination between one person and another as has been held in Chiranjit Lal Chowdhuri v. Union of India (1950 SCR 869 : AIR 1951 SC 41 and in Ramana Dayaram Shetty v. I.A.A.I (AIR 1979 SC 1628).
In all these cases, it has been clearly held that the principle under the Constitution is the same that there should be no discrimination between one person and another. As regards the subject matter of the legislation, their position is the same. In other words, its action must not be arbitrary but must be based on some valid principle, which itself must not be irrational or discriminatory.
6.14 According to the Concise Oxford English Dictionary the word "discriminate" is "make an unjust distinction in the treatment of different categories of people, especially on the grounds of race, sex, or age."
According to the Law Lexicon, "Discriminate" means "make an adverse distinction with regard to", distinguish unfavourable from others".
6.15 Equal protection means right to equal treatment in similar circumstances both in the privileges conferred and in the liabilities imposed. Men and women are equal in every respect and they can never be treated as unequal in any manner. However, the principle does not take away from the State the power classifying persons for legitimate purposes. The legislature is competent to exercise its discretion and make classification. However, if any such classification is likely to produce or producing some inequality in some degree, then it should be rectified immediately.
6.16 In the instant case, the question of equality before law is involved. It has been rightly focussed by the petitioner that under the Civil Procedure Code, men and women are treated equal under Rule 15 of Order V for receiving summons if the person so summoned is absent while Section 64 of the Code of Criminal Procedure places bar on women to receive such summons and restricts to only for adult male member. Therefore, it is not an equality before the law. Therefore, law is challenged as offending rights guaranteed under Article 14 of the Constitution.
6.17 In the first instance, the Court has to examine the purpose and policy of the Act and then to discuss whether the classification made by the law reasonably related to the object, which the legislature seeks to obtain. The purpose or object of the Act is to be ascertained from examination of its total preamble and provisions of law, which was non-discriminatory on its inception may be rendered discriminatory by a reason of external circumstances, which take away the reasonable basis of classification.
6.18 Antulay, A.R. v. Nayak, R.S.(1) It has been clarified by the Apex Court that the guarantee of equal protection or equality before law applies against substantive as well as procedural laws. The Hon'ble Supreme Court has clarified that in the case of procedural laws that litigants who are similarly situated are able to avail themselves of the same procedural rights without discrimination but if the differences are of minor and unsubstantial character, which have not prejudiced the interests of the person or persons effect, there would not be denial of equal protection.
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1. AIR 1988 SC 1531 6.19 In the instant case, in fact there is no prejudice caused to the female of the society for not including them in receiving summons in a criminal case under Section 64 of the Code of Criminal Procedure. Though there is some classification between civil and criminal law, it is very minor and unsubstantial in character. In order to find out whether there has been a substantial departure from the normal procedure, the test to be applied is not the degree of inequality but the reality of it. If procedure differs between a particular class of persons by a discrimination on vital factors, it is to be curbed.
6.20 There shall be no discrimination if the two procedures relate to different powers in respect of two different matters or the scope of two enactments is different or if any one of them is dealing with special situation. But, in such a situation, it is always advisable that there should be only one procedure prescribed for everybody and the said procedure to be applied excluding some female from accepting the summons.
6.21 Under Section 132 of the CPC, there is exemption of certain women from personal appearance. Under Section 133, there is exemption of certain persons from personal appearance in the Court. Therefore, such exemption can be given under Section 64 of the Code of Criminal Procedure and if a female, according to the caste custom or of family background ought not to be compelled to receive the summons and shall be exempted from receiving the summons of another person of the family. By doing so, there shall be equality among all. The protection as given under Section 132 of the Code of Civil Procedure can be considered for Rule 15 of Order V, so also under Section 64 of the Code of Criminal Procedure.
6.22 Decision making process should be transparent, fair and open. All types of discrimination must be removed by the legislature by repealing if necessary the procedural laws of the land.
In State of Mysore v. Achiah Chetty, D,(1) The Hon'ble Supreme Court has spoken out that whenever any discrimination is there, it must be removed by the legislature immediately.
In Express Hotels Pvt.Ltd. v. State of Gujarat(2) It has been clearly held that where the statute makes no classification for applying its provisions but leaves it to the discretion of the Government to select and classify, the
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1. AIR 1969 SC 477
2. AIR 1989 SC 1949 Court will not strike down the law out of hand but will examine and ascertain if the statute has laid down any principle or policy for guiding the exercise of discretion by Government in the matter of selection and classification, and if no such principle or policy is found, the statute will be struck down as providing for the delegation of arbitrary or uncontrolled power to the Government so as to enable it to discriminate between persons and things similarly situate and together with it any executive action taken under such law.
6.23 In the instant case, the argument is the provision u/s.64 Cr.P.C. is against female. No doubt the provision omits the word "female". But, if Section 64 of the Code of Criminal Procedure says that female should not be allowed to receive summons in the absence of summoned person then the provision is directed against female but in this case the provision says only an adult male member and it means it has omitted the word "female" but there is no specific bar hence the same can be considered by the legislature to include the word "female".
6.24 The argument of the learned Asst.Solicitor General, though there is no bar or embargo on women not to receive summons as the Section 64 of the Cr.P.C. is silent with regard to receiving of summons by women and so being an adult female member can also receive the summons, needs further examination because when the statute clearly says that in such circumstances, only an adult male member alone can receive the summons, how far the receipt of summons by female member of the female or refusal of the female member of the family can be treated as legal will have to be examined.
6.25 Therefore, to avoid difficulties, the legislature has to apply its mind and consider representations from various sections of the Society, more particularly, the respectable women and their respective organisations of the country, to decide whether section 64 of the Cr.P.C. is discriminatory against women or embody in their favour. If a mother and son alone are residing in the house and if son is out of station for any reason, if the summons in a criminal case is sought to be served on son and denying the opportunity of receiving the summons by the mother may create problem. When there is no such restriction for the mother to receive summons in civil case, I do not understand reason for denial of the same right in a criminal case. There should be uniformity, equality in treating both.
6.26 Even if arbitrariness is found ex-facie, the same can be gone through on wholesome reading of the statute, rules, and regulations, orders, notifications issued thereunder. If the classification is not reasonable, the said action of the legislative or executive would be arbitrary and violative of Article 14 as the object of Article 14 is wide spread and is to ensure fairness and equality of treatment. Extending right to one class of people and denying to the other class must be held to be arbitrary and as bad. However, the governing decision of the legislative power cannot be held violative of Article 14 unless shown manifestly, arbitrarily, wholly unreasonable.
6.27 An enactment of the legislature cannot be struck down merely by saying that it is arbitrary testing for a particular decision of the legislature incorporating a provision was arbitrary or resistible, the existing circumstances at the time of taking decision are to be examined. Therefore I am leaving this decision to the wisdom of the legislature at the national level instead of striking down at the instance of the petitioner at my level.
The petitioner is canvassing this case in an individual capacity. The Court cannot ignore the views and the interests of the entire women of the country. It is unfair to react to the feelings of one individual. It is necessary to examine this issue at a greater depath.
6.28 Therefore, first respondent, who is instrumental for making legislation at the national level has to consider this aspect.
6.29 Principles of natural justice, which means that all the parties concerned in the issue must be heard before tkaing a final decision i.e. audi alteram partem. Principles of natural justice is also the requirement of Article 14 of the Constitution, for natural justice is the antithesis of arbitrariness. Without hearing all the affected section of the society, finalising any issue will amount to be denial of the principles of natural justice. Therefore, larger hearing is necessary in the instant case. At the instance of the petitioner alone, Section 64 of the Code of Criminal Procedure cannot be struck down from the statute on the ground that it is discriminatory. The Writ of Declaration or direction cannot be given. However, the first respondent has to consider all the above aspects and arrive to the best decisions to maintain equality before law and equal justice between male and female members of the society and also to see that there shall be no discrimination between both and both are classified and treated with the same part.
6.30 The copy of this order is directed to be forwarded to the Chairman, Law Commission of India and the Member Secretary, National Legal Service Authority to do the needful in the matter.
With the above observations, the Writ Petition is dismissed. No costs. Consequently, WPMP (MD)No.3044 of 2004 is closed.
asvm To
1.Secretary, Union of India, Ministry of Law and Justice, 401, A Wing, Sastri Bhavan, New Delhi.
2.Chief Secretary, The State of Tamil Nadu, Fort.St George, Chennai - 9.