Hindu Marriage Act, 1955: Section 19. Dissolution of marriage-Court to which petition should be presented-Parties marrying in India under Hindu Law-Husband's petition for dissolution of marriage in Foreign Court-Fraud-Incorrect representation of jurisdictional facts-Husband neither domiciled nor had intention to make the foreign state his home but only technically satisfying the requirement of residence of 90 days for the purpose of obtaining divorce- Divorce decree by foreign court on a ground not available under the 1955 Act-Enforceability of. Civil Procedure Code, 1908: Section 13. Matrimonial dispute-Foreign judgment-When not conclusive. Clause (a)-``Court of competent jurisdiction''-Which is. Clause (b)-Judgment on merits-What is. Clause (c)-Judgment founded on a ground not recognised by Law of India-Effect of. Clause (d)-Judgment obtained in proceedings opposed in principles of natural justice-Effect of-Principles of natural justice-Scope of. Clause (e)-`Fraud'-Scope of-Judgment obtained by fraud- Effect of. Clause (f)-Judgment founded on a breach of law in force in India-Effect of. Section 14-Presumption as to foreign judgments- Expression ``Certified copy of a foreign judgment''-Should be read consistent with requirement of Section 86 of Indian Evidence Act. Indian Evidence Act, 1872. Section 41-``Competent court''-Which is. 822 Section 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and 86. Foreign judgment-Photostat copy-Admissibility of. Private International Law-Matrimonial dispute- Recognition of foreign judgment-Rules for recognition of foreign matrimonial judgment laid down-Hague convention of 1968 on the recognition of divorce and legal separations- Article 10-Judgment Convention of the European Community. Words and phrases ``Residence-Meaning of''.

The first appellant and the first respondent were married at Tirupati on 27.2.1975 according to Hindu Law. They separated in July 1978. The appellant-husband filed a petition for dissolution of the marriage in the Sub-Court of Tirupati stating that he was a resident of South Claiborn Avenue, New Orleans, Louisiana, and that he was a citizen of India and that he and his wife last resided together at New Orleans, Louisiana. Subsequently he filed another petition for dissolution of marriage in the Circuit Court St. Louis Country, Missouri, USA alleging that he has been a resident of the State of Missouri for 90 days or more immediately preceding th filing of the petition by refusing to continue to live with the appellant in the US and particularly in the State of Missouri. But from the averments made by him in the petition before the Sub-Judge, Tirupati it was obvious that he and his wife had last resided together at New Orleans, Louisiana and never within the jurisdiction of th Circuit Court of St. Louis Country in the State of Missouri. The respondent-wife filed her reply raising her objections to the maintainability of the petition. She also clearly stated that her reply was without prejudice to her contention that she was not submitting to the jurisdiction of the foreign court. The Circuit Court Missouri assumed jurisdiction on the ground that the 1st Appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action in the Court. In the absence of the respondent-wife the Circuit Court, Missouri passed a decree for dissolution of marriage on the only ground that the marriage has irretrievably down. Subsequent to the passing of the decree by the Circuit Court, Missouri, the appellant filed an application for dismissal of his earlier petition before the Sub-Court of Tirupati and the same was dismissed. 823 On 2nd November 1981 the last appellant married appellant No. 2. Thereafter, the 1st-respondent filed a criminal complaint against the appellants for the offence of bigamy. The appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by the Circuit Court, Missouri. The Magistrate discharged the appellants by holding that the complainant-wife had failed to make out a prima facie case against the appellants. The respondent preferred a Criminal Revision Petition before the High Court which set aside the order of the Magistrate by holding (i) that a photostat copy of the judgment of Missouri Court was not admissible in evidence; (ii) since the Learned Magistrate acted on the photostat copy of the judgment, he was in error in discharging the accused. Accordingly the High Court directed the Magistrate to dispose of the petition filed by the appellants for their discharge afresh in accordance with law. Aggrieved by the decision of the High Court the appellants filed appeal in this Court. Dismissing the appeal, this Court, HELD: 1. The decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Hindu Marriage Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. Further, irretrievable breakdown of marriage is not one of the grounds recognised by the Act of dissolution of marriage. Hence, the decree of the divorce passed by the foreign court was on a ground unavailable under the Act which is applicable to the marriage. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is therefore, unenforceable. [828H, 829A, 828E, 834H, 835A] 2. Residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. [829E] Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971, referred to. 3. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract ACt, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some 824 rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. Today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. A large number of foreign decrees in matrimonial matters is becoming the order of the day. A time has, therefore, come to ensure certainty in the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the frame-work of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. Though the proposed rules of guidance in this area may prove inadequate or miss some aspects which may not be present to us at this juncture, yet a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments. [829H, 830A, 831C, F-H] 4. The relevant provisions of Section 13 of the CPC are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our social life. [832A] 4.1 On an analysis and interpretation of Section 13 of CPC the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows; (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. [834B-D] 825 5. The High Court erred in setting aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. In the instant case photostat copies of the judicial record of the Court of St. Louis is certified for th Circuit Clerk by the Deputy clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Indian Evidence Act also in the manner required by the provisions of the said section. Hence the photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. Therefore the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court. [835B, E, F-G] 6. The Magistrate is directed to proceed with th matter pending before him according to law as expeditiously as possible, preferably within four months. [835G] , 1991( 2 )SCR 821, 1991( 3 )SCC 451, 1991( 2 )SCALE1 , 1991( 3 )JT 33 PETITIONER: Y. NARASIMHA RAO AND ORS. Vs. RESPONDENT: Y. VENKATA LAKSHMI AND ANR. DATE OF JUDGMENT09/07/1991 BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. MISRA, RANGNATH (CJ) CITATION: 1991 SCR (2) 821 1991 SCC (3) 451 JT 1991 (3) 33 1991 SCALE (2)1 ACT: Hindu Marriage Act, 1955: Section 19. Dissolution of marriage-Court to which petition should be presented-Parties marrying in India under Hindu Law-Husband's petition for dissolution of marriage in Foreign Court-Fraud-Incorrect representation of jurisdictional facts-Husband neither domiciled nor had intention to make the foreign state his home but only technically satisfying the requirement of residence of 90 days for the purpose of obtaining divorce- Divorce decree by foreign court on a ground not available under the 1955 Act-Enforceability of. Civil Procedure Code, 1908: Section 13. Matrimonial dispute-Foreign judgment-When not conclusive. Clause (a)-``Court of competent jurisdiction''-Which is. Clause (b)-Judgment on merits-What is. Clause (c)-Judgment founded on a ground not recognised by Law of India-Effect of. Clause (d)-Judgment obtained in proceedings opposed in principles of natural justice-Effect of-Principles of natural justice-Scope of. Clause (e)-`Fraud'-Scope of-Judgment obtained by fraud- Effect of. Clause (f)-Judgment founded on a breach of law in force in India-Effect of. Section 14-Presumption as to foreign judgments- Expression ``Certified copy of a foreign judgment''-Should be read consistent with requirement of Section 86 of Indian Evidence Act. Indian Evidence Act, 1872. Section 41-``Competent court''-Which is. 822 Section 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and 86. Foreign judgment-Photostat copy-Admissibility of. Private International Law-Matrimonial dispute- Recognition of foreign judgment-Rules for recognition of foreign matrimonial judgment laid down-Hague convention of 1968 on the recognition of divorce and legal separations- Article 10-Judgment Convention of the European Community. Words and phrases ``Residence-Meaning of''. HEADNOTE: The first appellant and the first respondent were married at Tirupati on 27.2.1975 according to Hindu Law. They separated in July 1978. The appellant-husband filed a petition for dissolution of the marriage in the Sub-Court of Tirupati stating that he was a resident of South Claiborn Avenue, New Orleans, Louisiana, and that he was a citizen of India and that he and his wife last resided together at New Orleans, Louisiana. Subsequently he filed another petition for dissolution of marriage in the Circuit Court St. Louis Country, Missouri, USA alleging that he has been a resident of the State of Missouri for 90 days or more immediately preceding th filing of the petition by refusing to continue to live with the appellant in the US and particularly in the State of Missouri. But from the averments made by him in the petition before the Sub-Judge, Tirupati it was obvious that he and his wife had last resided together at New Orleans, Louisiana and never within the jurisdiction of th Circuit Court of St. Louis Country in the State of Missouri. The respondent-wife filed her reply raising her objections to the maintainability of the petition. She also clearly stated that her reply was without prejudice to her contention that she was not submitting to the jurisdiction of the foreign court. The Circuit Court Missouri assumed jurisdiction on the ground that the 1st Appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action in the Court. In the absence of the respondent-wife the Circuit Court, Missouri passed a decree for dissolution of marriage on the only ground that the marriage has irretrievably down. Subsequent to the passing of the decree by the Circuit Court, Missouri, the appellant filed an application for dismissal of his earlier petition before the Sub-Court of Tirupati and the same was dismissed. 823 On 2nd November 1981 the last appellant married appellant No. 2. Thereafter, the 1st-respondent filed a criminal complaint against the appellants for the offence of bigamy. The appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by the Circuit Court, Missouri. The Magistrate discharged the appellants by holding that the complainant-wife had failed to make out a prima facie case against the appellants. The respondent preferred a Criminal Revision Petition before the High Court which set aside the order of the Magistrate by holding (i) that a photostat copy of the judgment of Missouri Court was not admissible in evidence; (ii) since the Learned Magistrate acted on the photostat copy of the judgment, he was in error in discharging the accused. Accordingly the High Court directed the Magistrate to dispose of the petition filed by the appellants for their discharge afresh in accordance with law. Aggrieved by the decision of the High Court the appellants filed appeal in this Court. Dismissing the appeal, this Court, HELD: 1. The decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Hindu Marriage Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. Further, irretrievable breakdown of marriage is not one of the grounds recognised by the Act of dissolution of marriage. Hence, the decree of the divorce passed by the foreign court was on a ground unavailable under the Act which is applicable to the marriage. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is therefore, unenforceable. [828H, 829A, 828E, 834H, 835A] 2. Residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. [829E] Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971, referred to. 3. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract ACt, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some 824 rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. Today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. A large number of foreign decrees in matrimonial matters is becoming the order of the day. A time has, therefore, come to ensure certainty in the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the frame-work of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. Though the proposed rules of guidance in this area may prove inadequate or miss some aspects which may not be present to us at this juncture, yet a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments. [829H, 830A, 831C, F-H] 4. The relevant provisions of Section 13 of the CPC are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our social life. [832A] 4.1 On an analysis and interpretation of Section 13 of CPC the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows; (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. [834B-D] 825 5. The High Court erred in setting aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. In the instant case photostat copies of the judicial record of the Court of St. Louis is certified for th Circuit Clerk by the Deputy clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Indian Evidence Act also in the manner required by the provisions of the said section. Hence the photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. Therefore the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court. [835B, E, F-G] 6. The Magistrate is directed to proceed with th matter pending before him according to law as expeditiously as possible, preferably within four months. [835G] JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 385 of 1991. From the Judgment and Order dated 18.4.1988 of the Andhra Pradesh High Court in Crl. Revision Petition No. 41 of 1987. M.C. Bhandare and Ms. C.K. Sucharita for the Appellants. C.N. Sreekumar and G. Prabhakar (for the State) for the Respondents. The Judgment of the Court was delivered by SAWANT, J. Leave is granted. Appeal is taken oj board for final hearing by consent of parties. The 1st appellant and the 1st respondent were married ar Tirupati on February 27, 1975. They separated in July 1978. The 1st appellant filed a petition for dissolution of marriage in the Circuit of St. Louis Country Missouri, USA. The 1st respondent sent her reply from here under protest. The Circuit Court passed a decree for dissolution of marriage on February 19, 1980 in the absence of the 1st respondent. 826 2. The 1st appellant had earlier filed a petition for dissolution of marriage in the Sub-Court of Tirupati being O.P. No. 87/86. In that petition, the 1st appellant filed an application for dismissing the same as not pressed in view of the decree passed by the Missouri Court. On August 14, 1991 the learned sub-Judge of Tirupati dismissed the petition. 3. On November 2, 1981, the 1st appellant married the 2nd appellant in Yadgirigutta, 1st respondent filed a criminal complaint against the appellants for the offence of bigamy. It is not necessary to refer to the details of the proceedings in the said complaint. Suffice it to say that in that complaint, the appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by Missouri Court. By this judgment of October 21, 1986, the learned Magistrate discharged the appellants holding that the complainant, i.e., the 1st respondent had failed to make out a prima facie case against the appellants. Against the said decision, the 1st respondent preferred a Criminal Revision Petition to the High Court and the High Court by the impugned decision of April 18, 1987 set aside the order of the magistrate holding that a photostat copy of the judgment of the Missouri Court was not admissible in evidence to prove the dissolution of marriage. The Court further held that since the learned Magistrate acted on the photostat copy, he was in error in discharging the accused and directed the Magistrate to dispose of the petition filed by the accused, i.e., appellants herein for their discharge, afresh in accordance with law. It is aggrieved by this decision that the present appeal is filed. 4. It is necessary to note certain facts relating to the decree of dissolution of marriage passed by the Circuit Court of St. Louis Country Missouri, USA. In the first instance, the Court assumed jurisdiction over the matter on the ground that the 1st appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action and that petition in that Court. Secondly, the decree has been passed on the only ground that there remains no reasonable likelihood that the marriage between the parties can be preserved, and that the marriage is, therefore, irretrievably broken''. Thirdly, the 1st respondent had not submitted to the jurisdiction of the Court. From the record, it appears that to the petition she had filed two replies of the same date. Both are identical in nature except that one of the replies begins with an additional averment as follows: ``without prejudice to the contention that this respondent is not submitting to the jurisdiction of this hon'ble court, this respondent sub- 827 mits as follows''. She had also stated in the replies, among other things, that (i) the petition was not maintainable, (ii) she was not aware if the first appellant had been living in the State of Missouri for more than 90 days and that he was entitled to file the petition before the Court, (iii) the parties were Hindus and governed by Hindu Law, (iv) she was an Indian citizen and was not governed by laws in force in the State of Missouri and , therefore, the Court had no jurisdiction to entertain the petition, (v) the dissolution of the marriage between the parties was governed by the Hindu Marriage Act and that it could not be dissolved in any other way except as provided under the said Act, (vi) the Court had no jurisdiction to enforce the foreign laws and none of the grounds pleaded in the petition was sufficient to grant any divorce under the Hindu Marriage Act. Fourthly, it is not disputed that the 1st respondent was neither present nor represented in the Court passed the decree in her absence. In fact, the Court has in terms observed that it had no jurisdiction ``in personam'' over the respondent or minor child which was born out of the wed- lock and both of them had domiciled in India. Fifthly, in the petition which was filed by the 1st appellant in that Court on October 6, 1980, besides alleging that he had been a resident of the State of Missouri for 90 days or more immediately preceding the filing of the petition and he was then residing at 23rd Timber View Road, Kukwapood, in the Country of St. Louis, Missouri, he had also alleged that the 1st respondent had deserted him for one year or more next preceding the filing of the petition by refusal to continue to live with the appellant in the United States and particularly in the State of Missouri. On the other hand, the averments made by him in his petition filed in the court of the Subordinate Judge, Tirupati in 1978 shows that he was a resident of Apartment No. 414, 6440, South Claiborn Avenue, New Orleans, Louisiana, United States and that he was a citizen of India. He had given for the service of all notices and processes in the petition, the address of his counsel Shri PR Ramachandra Rao, Advocate, 16-11-1/3, Malakpet, Hyderabad-500 036. Even according to his averments in the said petition, the 1st respondent had resided with him at Kuppanapudi for about 4 to 5 months after th marriage. Thereafter she had gone to her parental house at Relangi, Tanuka Taluk, West Godawari District. He was, thereafter, sponsored by his friend Prasad for a placement in the medical service in the United States and had first obtained employment in Chicago and thereafter in Oak Forest and Greenville Springs and ultimately in the Charity Hospital in Louisiana at New Orleans where he continued to be emp- 828 loyed. Again according to the averments in the said petition, when the 1st respondent joined him in the United States, both of them had stayed together as husband and wife at New Orleans. The 1st respondent left his residence in New Orleans and went first to Jackson, Texas and, thereafter, to Chicago to stay at the residence of his friend, Prasad. Thereafter she left Chicago for India. Thus it is obvious from these averments in the petition that both the 1st respondent and the 1st petitioner had last resided together at New Orleans, Louisiana and never within the jurisdiction of the Circuit Court of St. Louis Country in the State of Missouri. The averments to that effect in the petition filed before the St. Louis Court are obviously incorrect. 5. Under the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the ``Act'') only the District Court within the local limits of whose original civil jurisdiction (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at the time, residing outside the territories to which the Act extends, or has not been heard of as being alive for a period of seven years of more by those persons who would naturally have heard of him if he were alive, has jurisdiction to entertain the petition. The Circuit Court of St. Louis Country, Missouri had, therefore, no jurisdiction to entertain the petition according to the Act under which admittedly the parties were married. Secondly, irretrievable breakdown of marriage is not one of the grounds recognised by the Act for dissolution of marriage. Hence, the decree of divorce passed by the foreign court was on a ground unavailable under the Act. 6. Under Section 13 of the Code of Civil Procedure 1908 (hereinafter referred to as the ``Code''), a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if (a) it has not been pronounced by a Court of competent jurisdiction; (b) it has not been given on the merits of the case; (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice, (e) it is obtained by fraud, (f) it sustains a claim founded on a breach of any law in force in India. 7. As pointed out above, the present decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Act as neither the marriage was celebrated nor the parties last 829 resided together nor the respondent resided within the jurisdiction of that Court. The decree is also passed on a ground which is not available under the Act which is applicable to the marriage. What is further, the decree has been obtained by the 1st appellant by stating that he was the resident of the Missouri State when the record shows that he was only a bird of passage there and was ordinarily a resident of the State of Louisiana. He had, if at all, only technically satisfied the requirement of residence of ninety days with the only purpose of obtaining the divorce. He was neither domiciled in that State nor had he an intention to make it his home. He had also no substantial connection with the forum. The 1st appellant has further brought no rules on record under which the St. Louis Court could assume jurisdiction over the matter. On the contrary, as pointed out earlier, he has in his petition made a false averment that the 1st respondent had refused to continue to stay with him in the State of Missouri where she had never been. In the absence of the rules of jurisdiction of that court, we are not aware whether the residence of the 1st respondent within the State of Missouri was necessary to confer jurisdiction on that court, and if not, of the reasons for making the said averment. 8. Relying on a decision of this Court in Smt. Satya v. Teja Singh, [1975] 2 SCR 1971 it is possible for us to dispose of this case on a narrow ground, viz., that the appellant played a fraud on the foreign court residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. We remain from adopting that course in the present case because there is nothing on record to assure us that the Court of St. Louis does not assume jurisdiction only on the basis of a mere temporary residence of the appellant for 90 days even is such residence is for the purpose of obtaining divorce. We would, therefore, presume that the foreign court by its own rules of jurisdiction had rightly entertained the dispute and granted a valid decree of divorce according to its law. The larger question that we would like to address ourselves to is whether even in such cases, the Courts in this country should recognise the foreign divorce decrees. 9. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of 830 children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. The distinction between matters which concern personal and family affairs and those which concern commercial relationships, civil wrongs etc. is well recognised in other countries and legal systems. The law in the former area tends to be primarily determined and influenced by social, moral and religious considerations, and public policy plays a special and important role in shaping it. Hence, in almost all the countries the jurisdicational procedural and substantive rules which are applied to disputes arising in this area are significantly different from those applied to claims in other areas. That is as it ought to be. For, no country can afford to sacrifice its internal unity, stability and tranquility for the sake of uniformity of rules and comity of nations which considerations are important and appropriate to facilitate international trade, commerce, industry, communication, transport, exchange of services, technology, manpower etc. This glaring fact of national life has been recognised both by the Hague Convention of 1968 on the Recognition of Divorce and Legal Seperations as well as by the Judgments Convention of the European Community of the same year. Article 10 of the Hague Convention expressly provides that the contracting States may refuse to recognise a divorce or legal separation if such recognition is manifestly incompatible with their public policy. The Judgments Convention of the European Community expressly excludes from its scope (a) status or legal capacity of natural persons, (b) rights in property arising out of a matrimonial relationship, (c) wills and succession, (d) social security and (e) bankruptcy. A separate convention was contemplated for the last of the subjects. 10. We are in the present case concerned only with the matrimonial law and what we state here will apply strictly to matters arising out of and ancillary to matrimonial disputes. The Courts in this country have so far tried to follow in these matters the English rules of Private International Law whether common law rules or statutory rules. The dependence on English Law even in matters which are purely personal, has however time and again been regretted. But nothing much has been done to remedy the situation. The labours of the Law Commission poured in its 65th Report on this very subject have not fructified since April 1976, when the Report was submitted. Even the British were circumspect and hesitant to apply their rules of law in such matters during their governance of this country and had left the family law to be governed by the customary rules of the diffe- 831 rent communities. It is only where was a void that they had stepped in by enactments such as the Special Marriage Act, Indian Divorce Act, Indian Succession Act etc. In spite, however, of more than 43 years of independence we find that the legislature has not thought it fit to enact rules of Private International Law in this area and in the absence of such initiative from the legislature the courts in this country their inspiration, as stated earlier, from the English rules. Even in doing so they have not been uniform in practice with the result that we have some conflicting decisions in the area. 11. We cannot also lose sight of the fact that today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. Many a man and woman of this land with different personal laws have migrated and are migrating to different countries either to make their permanent abode there or for temporary residence. Likewise there is also immigration of the nationals of other countries. The advancement in communication and transportation has also made it easier for individuals to hop from one country to another. It is also not unusual to come across cases where citizens of this country have been contracting marriages either in this country or abroad with nationals of the other countries or among themselves, or having married here, either both or one of them migrate to other countries. There are also cases where parties having married here have been either domiciled or residing separately in different foreign countries. This migration, temporary or permanent, has also been giving rise to various kinds of matrimonial disputes destroying in its turn the family and its peace. A large number of foreign decrees in matrimonial matters is becoming the order of the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the framework of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. It is with this intention that we are undertaking this venture. We aware that unaided and left solely to our resources the rules of guidance which we propose to lay down in this area may prove inadequate or miss some aspects which may not be present to us at this juncture. But a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments. 832 12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect th sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression ``competent court'' in Section 41 of the Indian Evidence Act has also to be construed likewise. Clause (b) of Section 13 states that if a foreign has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable 833 to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country. Clause (d) of Section 13 which makes a foreign judgment unenforceable on th ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to b extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are file by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community . If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only it it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) may be held to have been satisfied. The provision of clause (e) of Section 13 which requires that the 834 courts in this country will not recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh, (supra) it must be understood that the fraud need not be only in relation to the merits of the mater but may also be in relation to jurisdictional facts. 13. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife's domicile follows that of her husband and that it is the husband's domicilliary law which determines the jurisdiction and judges the merits of the case. 14. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case 835 is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is, therefore, unenforceable. 15. The High Court, as stated earlier, set aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. The High Court is not correct in its reasoning. Under Section 74(1)(iii) of the Indian Evidence Act (Hereinater referred to as the "Act") documents forming the acts or records of the acts of public judicial officers of a foreign country are public documents. Under Section 76 read with Section 77 of the Act, certified copies of such documents may be produced in proof of their contents. However, under Section 86 of the Act there is presumption with regard to the genuineness and accuracy of such certified copy only if it is also certified by the representative of our Central Government in or for that country that the manner in which it has been certified is commonly in use in that country for such certification. Section 63(1) and (2) read with Section 65(e) and (f) of the Act permits certified copies and copies made from the original by mechanical process to be tendered as secondary evidence. A photostat copy is prepared by a mechanical process which in itself ensures the accuracy of the original. The present photostat copies of the judicial record of the Court of St. Louis is certified for the Circuit Clerk by the Deputy Clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Act and also in the manner required by the provisions of the said section. Hence the Photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. The expression "certified copy" of a foreign judgment in Section 14 of the Code has to be read consistent with the requirement of Section 86 of the Act. 16. While, therefore, holding that the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court, we uphold the order of the High Court also on a more substantial and larger ground as stated in paragraph 14 above. Accordingly, we dismiss the appeal and direct the learned Magistrate to proceed with the matter pending before him according to law as expenditiously as possible, preferably within four months from now as the prosecution is already a decade old. T.N.A. Appeal dismissed. 836

acquittal =Long ago, in England, Lord Justice GODDARD in WOOLMEINGTON Vs. DIRECTOR OF PUBLIC PROSECUTIONS (1935 AC 462), held that onus is upon the prosecution to prove the offence alleged to have been committed by the accused beyond all reasonable doubts. This has become the core of the Anglo-Saxonic Criminal Jurisprudence. 49. Since then there is no shifting of this primary duty cast upon the prosecution. The Indian Legal System is also wedded to this basic principle of English Criminal law. Even, now this is the position of Criminal law in India except to the extent statutorily excluded. For instance, offences against women (Section 113-A, 113-B, Indian Evidence Act, 1872). 50. The necessary corollary is suspicion, however, strong may not take the place of legal proof. A finding of a Criminal Court is acceptable only when it is supported by legal and valid evidence. Dehors that, it deserves rejection lock, stock and barrel.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/01/2012 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR And THE HONOURABLE MR. JUSTICE P. DEVADASS Criminal Appeal (MD) No.394 of 2010 Sanjeevan alias Reghu .. Appellant v. The State of Tamil Nadu Rep. By its Inspector of Police Puthukadai Police Station Puthukadai Kanyakumari District. .. Respondent Appeal filed under Section 374 of the Criminal Procedure Code against the judgment of the learned Sessions Judge, Kanyakumari District at Nagercoil in S.C. No.156 of 2007 dated 24.06.2010. !For Appellant ... Mr. N. Dilip Kumar ^For Respondent ... Mr. K.S. Durai Pandian, APP :JUDGMENT P. DEVADASS.J. 1. The appellant Sanjeevan @ Reghu is the accused in S.C. No.156 of 2007, in the Court of Sessions Judge, Kanyakumari Sessions Division at Nagercoil. In this appeal, he challenges, his conviction under Sections 377 and 302 IPC and the sentences imposed upon him. 2. He stood charged under Sections 377, 302 and 201 IPC for having committed sodomy on the boy Legies, for having murdered him and for having concealed his dead body in order to screen himself from legal punishment. 3. After trial, the learned Sessions Judge convicted and sentenced him as under: Sl.No. Conviction Sentence 1. S.377 IPC 10 years Rigorous Imprisonment and fine Rs.15,000/-, in default, undergo simple imprisonment for one year. 2. S. 302 IPC Life Sentence and fine Rs.15,000/-, in default, one year simple imprisonment. The learned Sessions Judge directed that the said sentences shall run concurrently and out of the total fine amount ordered payment of Rs.25,000/- as compensation to PW.1 Lawrence, the father of the deceased boy. 4. The prosecution case proceeded as under:- (1) PW.1 Lawrence and Gresi are spouses. Their sons are Lenies, Lebies and Legies. They are residing in Vannan Vilai, Puthukkadai in Kanyakumari District. Their third son, Legies, is about 13 years old. He was studying VII Standard in St.Mary's Middle School in Puthukkadai. (2) The appellant is also residing nearby. He is a mason. He was married to Geetha Malar. They are having two daughters. There was no love last between the spouses. She left him with the children. He is residing lonely in his newly constructed house. (3) Legies is already known to the appellant. The appellant wanted to satisfy his sexual appetite through him. He was waiting for an opportunity. (4) PW.5 Raviraj, is residing in Panainerunchi Villai, Puthukkadai. On 2.9.2006, around noon, when he was crossing appellant's house, he heard Legies' crying, 'brother open the door'. Appellant opened the door. The boy came out. Appellant told him to come soon, he would give him money for buying ice-cream. Thereafter, PW.5 left for his house. Around 3 pm., in his house, the boy had shower. Then left his house. (5) PW.2 Maria Packiam is also residing in Vannan Vilai, Puthukkadai. She used to collect chit amounts near the Roman Catholic Church in Puthukkadai. On 2.9.2006, after collecting the chit amounts, around 3.10 pm, she came near the appellant's house. She heard shriek from his house. Within few minutes, appellant came out of his house. Closed the doors. PW.2 asked him what had happened. He replied her nothing and left. (6) Around 6 p.m., at the R.C. Church, PW.1's wife and sons Lenies and Lebies told him that Legies is missing. PW.1 enquired the Dance Teacher Adaikala Mary. She told him Legies did not come to dance class. Till night, the boy did not return home. (7) On 3.9.2006, at about 9 a.m., at the south western corner of Amirthain's land, the dead body of Legies was found. It was half naked. No dress below the hip. The dead body was found with shirt (MO.1) and the electronic watch (MO.2). PW.1 seen the dead body of his son. (8) At about 10 a.m., at the Puthhukkadai Police Station, PW.1 gave Ex.P1 complaint to PW.17 Ramesh Babju, Sub Inspector of Police. He registered a case of suspicious death under Section 174 Cr.P.C (Ex.P.19 FIR). PW.17 sent the FIR through PW.13 Head Constable, Joseph Raj to Judicial Magistrate No.II, Kuzhithurai. Since the Magistrate was on leave, around 12.40 am., he handed over the FIR to the Incharge-Judicial Magistrate, Thucklay. (9) On receipt of a copy of FIR, Subramony, Inspector, Puthukkadai Police Station took up his investigation. [Subramony is no more. Since PW.17 assisted him in investigating this case and knows his signature, PW.17 also has been examined to speak to Subramony's investigation of this case]. (10) At about, 10.30 a.m., at Amirtainan's land, in the presence of PW.3 Henrydhass and one Justin Paulraj, Inspector Subramony prepared Ex.P.2 Observation Mahazar-1. Recovered six bloodstained dried jack-fruit tree leaves (MO.3) under Ex.P.3 Mahazar. Drew rough sketch-1 (Ex.P.20). Examined the witnesses. Recorded their statement. In the presence of Panchayathars, held inquest over the dead body (Ex.P.21 Inquest Report). Sent the dead body through PW.14 Head Constable, Sobana Kumar with Ex.P.10 requisition to the Government Medical College Hospital at Asaripallam, Nagercoil for autopsy. (11) At about 3.30 p.m., PW.10, Dr. Velmurugan, conducted autopsy. He noted the following :- Appearances found at the post-mortem: Moderately nourished boy of a male with finger and toe nails blue in colour. Postmortem ant bite marks seen over the front of neck and chest. Eggs of flies found laid around the mouth, neck and groins. Dried blood stain seen over both nostrils, mouth, cheek and eyes. Anus found relaxed. Ante-mortem injuries: 1. Abrasion with contusion 4 x 2 cm over the left eyelid. The lid edematous. 2. 5 x 4 cm abrasion seen over right side of forehead. 3. Abrasion with contusion 6 x 5 cm over right cheek. 4. Abrasion 5 x . cm over the neck. 5. Abrasion 10 x 5 cm over right cheek. 6. Abrasion 6 x 4 cm over left side of cheek. 7. Abrasion with contusion 6 x 2 cm over right shoulder. 8. Abrasion 5 x 4 cm middle of chest. 9. Scratch abrasion of varying sizes over an of 20 x 12 cm over the front of left thigh. 10. Abrasion 4 x 2 cm over the front of middle of neck. 11. Abrasion 2 x 2 cm front of left knee. Chest and Abdomen: Bruising seen over upper half of sternum. About 100 ml of blood with clots seen in the thoracic cavity. Heard contused, both lungs contused. Contusion seen on inner aspect of ribs on the right side. About 200 ml of blood with clots seen in the abdominal cavity. Contusion of right lobe of liver note. Retro peritoneal clots seen over both sides of abdomen. Part of Duodenum and colour contused. Scalp Skull & Dura: Scalpal bruising with contusion over frontal, right parietal and temporal regions. The right temporal is muscle found bruised. Diffused sub Drual Haemorrhage, Sub Arachnoid Haemorrhage seen over both cerebral hemispheres. On thin dissection of neck bruising seen over inner aspect of neck. Hyoid bone: Intact. Stomach: About 250 gms of partially digested identifiable food particles (rice, banana and tender coconut with pungent odour. Mucosa congested). (12). PW.10 opined that the boy would appear to have died of multiple injuries and sequlae (Ex.P.12 final opinion). (13). On 16.9.2006, PW.7 Chandra, VAO, Painkulam was holding additional charge of Arudesam village. On 16.9.2006, in his office, at about 9.30 a.m., appellant gave him Ex.P.5 confession that on the evening of 2.9.2006, in his house, he had sodomised Legies, killed him and during night thrown away his dead body in the nearby land. PW.7 recorded it. Appellant signed it. PW.8 George and Vijayakumar, Village Assistants, attested it. (14). At about 10.30 a.m, at the Puthukkadai Police Station. PW.7 handed over the sodomite and Ex.P.5 extra-judicial confession to Inspector Subramony. He arrested him. Altered the section of law to Section 302 and 201 IPC. Sent the alteration memo to the court. (15). Appellant gave Ex.P.6 confessional statement to the Investigating Officer that if he is taken to certain places, he would show him the occurrence place, places where the dead body, boy's dress and his lungi, blanket and two empty tender coconuts were kept. (16). From Ponnappan's land, appellant produced an ash colour pant (MO.4). The Inspector seized it under Ex.P.7 Mahazar in the presence of PW.8 and Vijayakumar. (17). The appellant took the Investigating Officer to his house. In the presence of PW.4 Yesudhas and one Subash, the Inspector prepared Ex.P.4 Observation Mahazar-II. Drew Ex.P.22 Rough Sketch -II. He produced hair pieces (MO.6), woollen blanket (MO.7) and lungi (MO.8). In the presence of said witnesses, the Inspector seized them under Ex.P.9 Mahazar. (18). Through Court, the Inspector sent his requisition to conduct potency test to the accused (Ex.P.14 Court's letter). With the consent of appellant, PW.11 Dr.Rajesh conducted the test. He opined that the appellant was capable of performing sexual intercourse (Ex.P.13 Certificate). (19). The Inspector produced the appellant to the Judicial Magistrate for judicial custody. Sent the case-properties to the Lab through Court, for analysis. The Serologist found blood in MO.1 shirt (Ex.P.17). (20). Concluding his investigation, the Inspector filed Final Report for offences under sections 377, 302 and 201 IPC. 5. Prosecution examined PWs 1 to 17, marked Ex.P1 to 23 and exhibited MOs 1 to 8. 6. Placing reliance on the various circumstances projected by the prosecution through PWs.2 and 5. Ex.P.5 extra-judicial confession and Section 27 Evidence Act recoveries, on 24.6.2010, the learned Sessions Judge, came to the conclusion that the appellant committed buggery on the catamite Legies, killed him and thus convicted him under section 377 IPC and under section 302 IPC and sentenced him as already stated. 7. The said findings and sentences were assailed by Mr.N.Dilip Kumar, learned counsel for the appellant as under :- 1) The findings of the trial court are sans any legal evidence. 2) None of the circumstance has been proved. 3) PWs.2 and 5 did not tell anybody that they have seen the deceased near the appellant's house. They are liars. 4) There must be medical evidence that the appellant had committed pederasty. But, there is no medical evidence. The medical evidence let in is also contrary to the allegations made against the appellant. 5) The extra-judicial confession is false and not voluntary. That has been forcefully obtained with the assistance of obliging witnesses PWs.7 and 8 to fasten criminal liability to appellant. 6) Section 27 Evidence Act recovery is consequent upon the said concocted extra-judicial confession. 8. Per contra, Mr. K.S. Durai Pandian, learned Additional Public Prosecutor submitted that appellant had exhibited his virile behaviour by having anal intercourse with a young boy and to conceal his such human depravity, silenced him once for all. The boy suffered cruel death at his hands. He confessed to his crime to PW.7, VAO. It is voluntary and reliable and also has been corroborated by PW.8. There is medical evidence and also recovery of incriminating articles from the appellant's house. All goes to show that the appellant is the person who is responsible for the boy's untimely death. 9. P.W.1 is residing with his family in Vannan Vilai Veedu in Puthukkadai in Kanyakumari District. His third son, Legies, about 13 years old was studying VII Standard in St.Mary's Middle School in Puthukkadai. From the evening of 2.9.2006, the boy was missing. On the next day, at about 9 a.m., his half-naked dead body was found in one Amirthaian's land in Vannan Vilai. 10. The appellant is accused of, after committing sodomy on the boy, killed him and on the night stealthily disposed of his body in one Amirthaian's land in Vannan Vilai. 11. There is no ocular witness to these serious allegations. To establish the charges against the appellant, prosecution relied on several circumstances. According to prosecution, they are incriminating in nature and goes to inculpate the appellant with the offences alleged as against him. 12. In Krishnan v. State represented by Inspector of Police (2008 (4) Supreme 25), on the aspect of circumstantial evidence, Hon'ble Supreme Court observed as under :- "This Court in a series of decisions has consistently held that, 'when a case rests upon the circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence'. (See Gambhir v. State of Maharashtra AIR 1982 SC 1157)". 13. Recently, in Kulvinder Singh and another v. State of Haryana, (2011) 5 SCC 258, Hon'ble Supreme Court observed as under: " It is a settled legal proposition that conviction of a person in an offence is generally based solely on evidence that is either oral or documentary, but in exceptional circumstances conviction may also be based solely on circumstantial evidence. The prosecution has to establish its case beyond reasonable doubt and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The same should be of a conclusive nature and exclude all possible hypothesis except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (Vide Sharad Birdhichand Sarda v. State of Maharashtra and Paramjeet Singh v. State of Uttarakhand.)". 14. Thus, each circumstance must be proved beyond all reasonable doubts. [See Sanatan Naskar and Another vs. State of West Bengal (2011) 1 MLJ 687 (Crl.) (SC).] The proved circumstances must form a complete chain unerringly proceeding towards the only conclusion that the accused is the author of the crime excluding any hypothesis of innocence in his favour. There should not be any missing link. 15. To inculpate the appellant, prosecution relies on the following circumstances :- i. On the occurrence day, PW-5 has seen the boy shouting from the appellant's house. ii. On the occurrence day, PW-2 heard strange shriek from the appellant's house. iii. Medical evidence. iv. Extra-judicial confession of the appellant. v. Section 27 Evidence Act recovery of MOs 4,5, 7 and 8. 16. PW.5 Raviraj, is residing in Panainerunchi Vilai in Puthukkadai. His evidence is that, on 2.9.2006, around 2 pm., while he was crossing appellant's house, near the southern side window, in the house, the boy Legies was crying, "brother open the door, brother open the door". Appellant opened the door. The boy came out. He told him to return soon and he would give him money for buying ice-cream. After noticing this, PW.5 left the place. On the next day, at about 9 a.m., the half naked dead body of the boy was found in Amirthaian's land. 17. PW.5, is a close relative of the deceased boy. PW.5 's house is at about 100 ft. away from Puthukkadai Police Station. Puthukkadai bus stand is also nearby. Because of such a death of the boy, the whole village plunged into deep sorrow. PW.5 was available in the village. He did not tell this tell-tale circumstance to anyone till 6.9.2006, when the police enquired him. His statement recorded under section 161 CrPC, was also sent to Court only on 9.1.2007 along with the Final Report. In the circumstances, we cannot place reliance on his such evidence. 18. The next incriminating circumstance has been projected through the evidence of PW.2 Maria Packiam. She is residing in Vannan Vilai Veedu in Puthukkadai. It is very near to the boy's residence. She used to collect chit amounts at the Roman Catholic Church in Puthukkadai. It is her evidence that on 2.9.2006, at about 2.30 p.m., while she came near the appellant's house, she heard unusual shriek from his house. Within few minutes, the appellant came out, closed the door and started proceeding. When she asked him, what had happened, he replied her nothing and left. On the next day morning, she heard that the boy, Legies was found dead. 19. PW.2 did not say it is the shriek of a boy. On the next day morning, though the whole village knows about the cruel death of the boy, PW.2 did not tell that tell-tale circumstance to anyone till 19.09.2006, when police enquired her. Her statement also reached the Court along with Final Report only on 9.1.2007. Thus, she does not inspire confidence in her. It is quite unsafe to act upon her evidence. This circumstance spoken to through her also has not been established. 20. For a charge under Section 377 IPC, medical evidence is required. It involves medical examination of the appellant and the boy. The boy is dead. His dead body was examined to see whether he was sexually abused. 21. Modi, in his Text Book, 'Medical jurisprudence and Toxicoloy', 24th edition, Wadhwa Publication, at page 682, with regard to medical evidence in cases of unnatural sexual offences under Section 377 IPC comments as under:- "Examination of the Passive Agent" (in this case the boy) (i) Abrasions on the skin near the anus with pain in walking and on defecations, as well as during examination. These injuries are extensive and well defined in cases where there is a great disproportion in size between the anal orifice of the victim and the virile member of the accused. Hence, lesions will be most marked in children, while they may be almost absent in adults when there is no resistance to the anal coitus. These injuries, if slight heal very rapidly in two or three days. (ii) Owing to strong contraction of the sphincter the penis rarely penetrates beyond an inch, and consequently, the laceration produced on the mucous membrane within the anus with more or less effusion of blood is usually triangular in nature, having its base at the anus and the sides extending vertically inwards into the rectum. (iii) Blood may be found in or at the anus, on the perineum or thighs and also on the clothes. (iv) Semen may be found in or at the anus, on the perineum, or on the garments of the boy too young to have seminal emissions. Examination of the Active Agent: (the appellant) Non conclusive signs are evident, unless the man is examined soon after the commission of the crime. In that case, there may be an abrasion on the prepuce, glans penis, or fraenum, and stains of faecal matter or lubricant may be found on the penis or on the loincloth or trousers. Where no semen was found on the clothes, either of the accused or of the boy, and no, injuries were found on their persons, a case of unnatural offence was not made out [Ganpat v. Emperor, AIR 1918 Lah 322]." 22. Thus, forcible anal intercourse by an adult man with a boy will have the presence of bloodstains around anus area. At the material time when the virile behaviour of the appellant arose and indulged in homosexual activity in all probability the appellant was prone to ejaculate and there will be presence of semen in his private part area. In such circumstances, possibility of presence of semen in his clothes generally be expected unless the clothes were washed or active steps were taken to cause the disappearance of evidence of sexual violenc. But, in this case, appellant did not wash his clothes. 23. In Ex.P.5 Extra-judicial confession, it is mentioned that the appellant had attempted to sodomise the boy and the boy avoided him. The sexual desire in the appellant arose. When the boy shouted at him, the appellant gagged him, pinned him down on the ground, removed his pant, inserted his penis into his anus. 24. On 3.9.2006, PW.10 Dr.Velmurugan conducted autopsy on the dead body of the boy. In Ex.P.11, Post-mortem certificate, PW.10 mentioned that "the anus found relaxed". PW.11 Dr. Rajesh examined the appellant and mentioned that the appellant's penis length is 9 c.m., circumference is 9 c.m. He is 35 years old. (Ex.P.13 Certificate). The boy was only 13 years old. PW.10 did not see any bloodstains around the boy's anal area, no injury or rupture in the thigh area, buttocks adjacent to the anal area. 25. PW-10's evidence also suggests that if forcible carnal intercourse was attempted, there would be rupture of the anal entry point but when he examined the boy, he did not find any injury in the anal area. When one dies there will be discharge of gas through all the openings in the body such as nostrils and anal. In such circumstances, the exit entry of the anal canal used to get relaxed. It is due to the discharge of gas from inside the dead body through the anal orifice. In his cross-examination, PW.10 confirms that the anal having been found relaxed may be due to various reasons. PW.10 did not say positively that it is because of anal intercourse attempted or completed on the boy. 26. In Ex.P.5 Extra Judicial confession, it is mentioned that when the boy started shouting, the appellant pressed the boy's neck, pushed his head on the wall, pushed him down, kicked on his neck and abdomen repeatedly. So, by these over acts, there should have been fracture in skull, internal and external rupture, internal injury in the abdomen. 27. PW.10 found no injury on the head, area just inside the abdomen in the dead body. Thus, there is no medical evidence as to the alleged commission of unnatural offence on the boy and killing him thereafter as stated in Ex.P.5 Extra-Judicial confession. 28. The next incriminating circumstance relied on by the prosecution is extra-judicial confession of the appellant. It is stated that on 16.9.2006, at about 9.30 a.m., before PW.7 Chandra, VAO, Painkulam, appellant surrendered and requested him to save him and gave confession admitting his guilt and that was attested to by PW.8 George and Vijayakumar, Village Assistants. 29. Nowhere in his Indian Evidence Act, 1872, Sir James Fitz James Stephen employed the phraseology "extra-judicial confession". However, the phrase, "confession", is employed in Sections 25 to 29 of the Act. Section 17 of the Act defines, "Admission". Confession is also a form of admission. It may be either culpatory or non-culpatory. No amount of confession made to police is admissible except to the extent provided in Section 27 of the Evidence Act, namely, so much of information distinctly relates to the discovery of a fact. Admission of guilty, in other words, confession by the accused is best form of evidence. The concept of extra-judicial confession emanated from Section 24 of the Act. As to its reliability, there are certain parameters or conditions precedent. 30. In State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, it was observed as under :- "An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility." 31. In S. Arul Raja v. State of Tamil Nadu, (2010) 8 SCC 233, popularly known as Aladi Aruna murder case, on the aspect of extra-judicial confession, our Hon'ble Apex Court observed as under :- " The concept of an extra-judicial confession is primarily a judicial creation, and must be used with restraint. Such a confession must be used only in limited circumstances, and should also be corroborated by way of abundant caution. This Court in Ram Singh v. Sonia has held that an extra- judicial confession while in police custody cannot be allowed. Moreover, when there is a case hanging on an extra-judicial confession, corroborated only by circumstantial evidence, then the courts must treat the same with utmost caution. This principle has been affirmed by this Court in Ediga Anamma v. State of A.P and State of Maharashtra v. Kondiba Tukaram Shirke". 32. In Sk. Yusuf v. State of W.B.,(2011) 11 SCC 754, at page 762, on the aspect of extra-judicial confession, the Honourable Supreme Court has observed as under :- "The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and requires appreciation with great caution. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that the accused is the perpetrator of the crime. The "extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility". (See State of Rajasthan v. Raja Ram and Kulvinder Singh v. State of Haryana.)." 33. Keeping the above guidance in our mind, now we shall approach the Extra-judicial confession pressed into service in this case. 34. In Ex.P.5, appellant gave his full life history, details of his children, his mother, his wife, his dispute with her, their living away from him, his job abroad, his construction of a new house in Vannan Vilai Veedu, how he developed acquaintance with the boy Legies, the boy's family details, his carnal activity towards the boy, the buggery committed on the boy, his murdering of him, stealthily disposing of his dead body and his appeal to VAO to save him. In his evidence, PW.7 Chandra VAO reiterated the above minute details. 35. The appellant belongs to Vannan Vilai in Puthukkadai. It comes under the jurisdiction of VAO, Arudesam Village. PW.7 is the VAO of Painkulam Village. Vannan Vilai does not belong to his jurisdiction. On 16.9.2006, he is stated to have held additional charge of Arudesam village. At the village level, the post of VAO is very important, as he has to discharge and attend to multifarious functions. So, VAO of one area cannot simply come and occupy the chair of another VAO. No written proof from a superior officer, such as Tahsildar, placing PW.7 in additional charge of VAO, Arudesam village has been produced. 36. Till 16.09.2006, PW-7 is an utter stranger to the appellant. Appellant had no prior acquaintance with him. Nothing has been produced or explained as to the appellant reposing confidence in such a stranger/ PW.7 to reveal everything to him. Ex.P-5 contains photographic details of the whole life history and all the matters pertaining to the prosecution case. According to prosecution, then the appellant was in distress. It is unlikely that a person placed in such a sorrowful situation will choose an utter stranger to recount from A to Z concerning commission of sodomy and murder. In the circumstances, it looks very odd. 37. In Jaspal Singh v. State of Punjab, (1997) 1 SCC 510, at page 513, the Hon'ble Apex court held that the prosecution has to show as to why and how the accused had reposed confidence on a particular person to give the extra-judicial confession. 38. In Ravi @ Ravichandran and another v. State, through the Inspector of Police, Steel Plant Police Station, Salem, 2007 (1) LW (Crl.) 555, it was observed as under : " But, in this case, it is found that there is no evidence to show that the Village Administrative Officer was known to A.1. Unless a person trusts another, there is no question of unburdening his heart to such a person. Therefore, we straight away reject the untrustworthy testimony of the Village Administrative Officer, PW.9 that A.1 voluntarily confessed the crime to him.' 39. In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, the Hon'ble Apex court held as under : " The first and foremost aspect which needs to be taken note of is, that PW.9 is not a person who had intimate relations or friendship with the appellant. PW.9 says that he knew the appellant "to some extent" meaning thereby that he had only acquaintance with him. In cross- examination, he stated that he did not visit his house earlier and that he met the appellant once or twice at the bus-stand. There is no earthly reason why he should go to PW.9 and confide to him as to what he had done.' 40. In Sunny Kapoor v. State (UT of Chandigarh), (2006) 10 SCC 182, it was observed as under : "It is wholly unlikely that the accused would make extra-judicial confession to a person whom they never knew. It also appears to be wholly improbable that unknown persons would come to seek his help unless he was known to be close to the police officers. His statements, thus, do not even otherwise inspire confidence.' 41. In the case before us, there is absolutely no material to show why appellant had reposed confidence in PW.7, to give extra-judicial confession. The prosecution has also miserably failed to produce any material to show that the accused was having close acquaintance with PW.7. 42. To corroborate the evidence of PW.7., PW.8 George Village Administrative Assistant, Ezhudesam Village has been examined. PW.8 and Vijayakumar have attested Ex.P.5 Extra-judicial confession. They were not employed either in Painkulam village or in Arudesam village. He was employed in Ezhudesam village. Between Ezhudesam and Painkulam, the distance is about 4 kms. On that day, PW.8 and Vijayakumar were asked to be present in Ezhudesam village in connection with distribution of free TVs. However, PW8 and Vijayakumar were brought to Painkulam VAO's office through a person. Arudesam itself has separate VAO. It has Village Assistants also. Why PW.8 and Vijayakumar should come all the way from Ezhudesam village to Painkulam to attest Ex.P.5 Extra-judicial confession, has not been explained. The Extra-judicial confession is stage managed, manufactured to inculpate the appellant. It is not genuine. It is not voluntary. It is highly unsafe to act upon. It deserves to be excluded from our consideration. 43. The last circumstance relied on by the prosecution is Section 27 Evidence Act recovery of MOs 4 to 8. 44. On 16.09.2006, at about 10.30 a.m, at the Puthukkadai Police station, PW.7 Chandra, VAO handed over the appellant with Ex.P.5 Extra-judicial confession to Inspector Subramony. He arrested him. Recorded his confession, Ex.P.6, that if he is taken to certain places he will produce his lungi, pant, woolen blanket and used empty tender coconuts. It was attested to by PW.8 and Vijayakumar. In pursuance of that MO.4 ash colour pant has been seized under Ex.P7 from Ponnappan's land in Vannan Vilai, from appellant's house, MO.5 empty tender coconuts, MO.6 hair pieces, MO.7 woolen blanket and MO.8 lungi were recovered under Ex.P.9 Mahazar, in the presence of PW.8 and Vijayakumar. 45. MO.8 lungi is stated to have been worn by the appellant while committing anal intercourse with the boy. There was no presence of semen in the lungi. MO.7 woolen blanket is stated to have been used by the appellant to conceal the boy's dead body. There was no blood in it. (Ex.P.16 Scientific Report). 46. On 3.9.2006, on dissection of the dead body, PW.10 Dr.Velmurugan found partially digested identifiable food particles which included tender coconut (Ex.P.11 post-mortem certificate). To correlate it, on 16.9.2006, in Ex.P.5 Extra-judicial confession it is stated that around 1 p.m., appellant gave him tender coconuts. To strengthen it, empty tender coconut has been mentioned in Ex.P.6 confession and recovery of the same from the front side of appellant's house under Ex.P.8 Mahazar in the presence of PW.8 George and Vijayakumar, Village Assistant also has been mentioned. 47. Above all, recovery of MOs. 4 to 8 is immediately after Ex.P.5 extra- judicial confession. When Ex.P.5 itself is tainted, this Section 27 Evidence Act recovery must also go. This circumstance also goes away. 48. Long ago, in England, Lord Justice GODDARD in WOOLMEINGTON Vs. DIRECTOR OF PUBLIC PROSECUTIONS (1935 AC 462), held that onus is upon the prosecution to prove the offence alleged to have been committed by the accused beyond all reasonable doubts. This has become the core of the Anglo-Saxonic Criminal Jurisprudence. 49. Since then there is no shifting of this primary duty cast upon the prosecution. The Indian Legal System is also wedded to this basic principle of English Criminal law. Even, now this is the position of Criminal law in India except to the extent statutorily excluded. For instance, offences against women (Section 113-A, 113-B, Indian Evidence Act, 1872). 50. The necessary corollary is suspicion, however, strong may not take the place of legal proof. A finding of a Criminal Court is acceptable only when it is supported by legal and valid evidence. Dehors that, it deserves rejection lock, stock and barrel. 51. It is appropriate here to note the following observations of Hon'ble Supreme Court made in, Rathinam v. State of T.N., (2011) 11 SCC 140, at page 145 : "We must, however, understand that a particularly foul crime imposes a greater caution on the court which must resist the tendency to look beyond the file, ?. It has been emphasised repeatedly by this Court that a dispassionate assessment of the evidence must be made and that the Court must not be swayed by the horror of the crime or the character of the accused and that the judgment must not be clouded by the facts of the case. In Kashmira Singh v. State of M.P. it was observed as under: (AIR p.160, para 2) "2. The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law." 24. Likewise in Ashish Batham v. State of M.P., it was observed thus: (SCC p. 327, para 8) "8. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between 'may be true' and 'must be true' and this basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record." 52. No doubt, very serious charges have been made as against the appellant. We are very serious of they being proved by valid and legal evidence. Suspicion and surmises cannot be substituted for the same. None of the circumstances projected by prosecution has been proved. Everywhere the chain of circumstances woven by the prosecution is found broken. There is no connecting link. They do not form a complete chain unerringly implicating the accused with the charges framed against the appellant. 53. In view of the foregoings, the findings recorded by the learned Sessions Judge, Kanyakumari Sessions Divisions at Nagercoil cannot be sustained. Appellant is not guilty of the charges framed under section 377 and 302 IPC. He is entitled to be acquitted. 54. In the result, the Criminal Appeal is allowed. The conviction recorded and the sentences awarded to the appellant in S.C. No. 156 of 2007 on 24.06.2010 by the Sessions Judge, Kanyakumari Sessions Division at Nagercoil are set aside. The appellant shall be released immediately, if he is no longer required for any other case/ proceedings/ order. Fine amount, already paid shall be refunded to the appellant. asvm/avr To 1. The Sessions Judge, Kanyakumari District at Nagercoil. 2. The District Collector, Kanyakumari District at Nagercoil. 3. The Superintendent, Central Prison, Madurai. 4. Inspector of Police, Puthukadai Police Station, Puthukadai, Kanyakumari District.

Law relating to bonded labour explained. Direction issued to constitute Legal aid clinics and provide socio-economics reliefs.

HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 46 Case :- HABEAS CORPUS WRIT PETITION No. - 70403 of 2011 Petitioner :- Sageer & Others Respondent :- State Of U.P. & Others Petitioner Counsel :- Suresh Kumar Singh Respondent Counsel :- Govt. Advocate Hon'ble Amar Saran,J. Hon'ble Ramesh Sinha,J. "................ Poverty and destitution are almost perennial features of Indian rural life for large numbers of unfortunate ill-starred humans in this country and it would be nothing short of cruelty and heartlessness to identify and release bonded labourers merely to throw them at the mercy of the existing social and economic system which denies to them even the basic necessities of life such as food, shelter and clothing. It is obvious that poverty is a curse inflicted on large masses of people by our malfunctioning socio-economic structure and it has the disastrous effect of corroding the soul and sapping the moral fibre of a human being by robbing him of all basic human dignity and destroying in him the higher values and the finer susceptibilities which go to make up this wonderful creation of God upon earth, namely, man. It does not mean mere inability to buy the basic necessities, of life but it goes much deeper, it deprives a man of all opportunities of education and advancement and increases a thousand fold his vulnerability to misfortunes which come to him all too often and which he is not able to withstand on account of lack of social and material resources. We, who have not experienced poverty and hunger, want and destitution, talk platitudinously of freedom and liberty but these words have no meaning for a person who has not even a square meal per day, hardly a roof over his head and scarcely one piece of cloth to cover his shame. 'What use are 'identification' and 'release' to bonded labourers if after attaining their so-called freedom from bondage to a master they are consigned to a life of another bondage, namely, bondage to hunger and starvation where they have nothing to hope for - not even anything to die for - and they do not know whether they will be able to secure even a morsel of food to fill the hungry stomachs of their starving children, What would they prize more : freedom and liberty with hunger and destitution starring them, in the face or some food to satisfy their hunger and the hunger of their near and dear ones. even at the cost of freedom and liberty. The answer is obvious. It is therefore imperative that neither the Government nor the Court should be content with merely securing identification and release of bonded labourers but every effort must be made by them to see that the freed bonded labourers are properly and suitably rehabilitated after identification and release." - Opening words of Justice Bhagwati speaking for the bench in Neeraja Chowdhuri v State of M.P., AIR 1984 SC 1099. We have heard learned counsel for the petitioners and the learned A.G.A. This Habeas Corpus petition was filed on behalf of 44 labourers who were residents of different villages of districts Muzaffarnagar and Baghpat and who claim to be held in bondage by respondent no.5 Kailash Jain, at his brick-kiln, named the Kunal Brick Field, at village Uldpur (near Sakera Gaon), P.S. Inchauli, district Meerut. The petitioners claimed that they were not allowed to leave the premises and to work elsewhere, their accounts were also not completed and they were not paid their wages in time. Even if they fell ill they were not given medical aid, but were abused and forced to continue to work for the employer. On 7.12.2011, this Court had allowed two weeks time to the State to obtain instructions and to file a counter affidavit. A counter affidavit of Sri Anil Kumar, District Magistrate, Meerut has been filed. In this counter affidavit it is stated that the Naib Tehsildar and the Labour Enforcement Officer visited the brick-kiln of respondent no.5, M/s Kunal Brick Kiln Factory in village Uldpur, P.S. Inchauli, district Meerut on 15.12.2011 and made a spot inspection. It was revealed that none of the petitioners were present at the spot. However, one worker Momeen was present who claimed to be working at that brick-kiln for four years. He disclosed that the petitioners had come to the brick-kiln on 11th October and worked till 30th November 2011. After receiving their payments they had voluntarily left for their homes on 9.12.2011. It was denied that the petitioners where kept in bondage, and it was stated that they were being paid wages for providing their labour for making bricks @ Rs 280/ per thousand bricks. However on the date of visit, owing to the absence of any other labourer, other than Momeen, the work had stopped and the brick-kiln was not functioning. The statement of Rajan Jain, father of respondent no.5 who reiterated Momeen's version was also recorded. The D.M. thereupon reached the conclusion that there was no evidence of bondedness amongst the petitioners and prayed for dismissal of the writ petition with costs. As none of the petitioners were present at the time of inspection because they appear to have left for their homes, their was no one to controvert the version of the solitary worker Momeen present and the brick owners, Kailash and Rajjan Jain. Consequently we have no option but to accept the favourable report of the Labour Enforcement Officer and Naib Tehsildar which was approved by the D.M., and are therefore unable to grant any further relief to the petitioners in the present petition. However, we do feel that the D.M. appears to have too readily accepted the report of the Labour Enforcement Officer and the Naib Tehsildar and we are of the opinion that there is a need for this Court to sensitize the District Magistrates and other concerned government functionaries to certain salient aspects of the law relating to bonded labour. We think that not only the District Magistrate, but all of us, who come from privileged sections of society do need to fight an unconscious feudal bias deep within us, and to resist the tendency of identifying ourselves with the oppressor and the exploiter, but we have also to develop a sensitivity and sympathy for the poor and the oppressed, whose situation was so poignantly described by Justice Bhagwati in the inimitable words quoted from Neeraja Chowdhuri's case at the beginning of this order. Although it cannot be ruled out that some labourers may act in a mischievous manner and lodge a bonded labour complaint, if they are unwilling to work, even though they have taken a substantial advance from the employer, and there may be instances when because of labour shortage or competition in the business this advance may not have been given to tie down the labourer by way of a bonded debt by a particular contractor or to make the labourer work at below market rates in the area, but the advance was made only to ensure that the labourer worked for a particular employer without losing his freedom. But this fact also cannot be lost sight of that normally entire families migrate to distant places to work in brick fields or in quarry sites, or in other occupations as unorganized labour with no proper residence or drinking water facilities, and poor protection from the vagaries of weather, absence of medical care and denial of schooling to little children, only due to landlessness, hunger and acute poverty in their home areas. Rightly these migrations have been described to be in the nature of distress migrations. There is a vast difference between the clout of the labourer who must work each day to survive and the might of the employer, who can prevail over the unorganized labourer by denying him wages, evicting him from the homestead, abusing him or even resorting to violence against him. It is the fear of retaliation and violence and socio-economic dependence on the keepers of the bonded labour, that persons held in bondage rarely make bonded labour complaints or confirm allegations that they are being compelled to provide forced labour to their keeper when questioned by competent government functionaries. Very often the alternative to bondage before the labourer is stark hunger. The 'bonded labour system' as defined in section 2(g) of the Bonded Labour (System) Abolition Act, 1976, shows that it is usually as a result of advances given by way of bonded debt that a debtor or his dependents or heirs are compelled to provide forced or partly forced labour to the creditor for a specified or unspecified period for no wage or for nominal wages, to forfeit their right to freely sell their labour in the market, change their employer or to move about freely in India. Therefore if any advance was given (as may have been done in this case), it may have actually been a bonded debt. Under section 15 of the Bonded Labour System (Abolition) Act, 1976 when a claim is raised by the debtor that a particular advance is a bonded debt the onus lies on the creditor to disprove this claim. In this regard in Bandua Mukti Morcha v Union of India and others, AIR 1982 SC 802 (at 827) it has been appositely observed: "It would be cruel to insist that a bonded labourer in order to derive the benefits of this social welfare legislation, should have to go through a formal process of trial with the normal procedure for recording of evidence. That would be a totally futile process because it is obvious that a bonded labourer can never stand up to rigidity and formalism of the legal process due to his poverty, illiteracy and social and economic backwardness and if such a procedure were. required to be followed, the State Government might as well obliterate this Act from the statute book. It is now satistically established that most of bonded labourers are members of Schedule Castes and Scheduled, Tribes or other backward classes and ordinary course of human affairs would show, indeed judicial notice can be taken of it, that there would be no occasion for a labourer to be placed in a situation where he is required to supply forced labour for no wage or for nominal wage, unless he has received some advance or other economic consideration from the employer and under the pretext of not having returned such advance of other economic consideration, he is required to render service to the employer or is deprived of his freedom of employment or of the right to move freely wherever he wants. Therefore, whenever it is shown that a labourer is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is therefore a bonded labourer: This presumption may be rebutted by the employer and also by the State Government if it so chooses but unless and until satisfactory material is produced for rebutting this presumption, the Court must proceed on the basis that the labourer is a bonded labourer entitled to the benefit of the provisions of the Act." (Underlining ours) It also cannot be ruled out that after the present petition was entertained in the High Court on 27.11.2011 and the order calling for a response from the respondents was passed on 7.12.11, the labourers were paid off part or the whole of their due wages, and allowed to go home on 9.12.11, so that they could be prevented from participating in the enquiry directed by the District Magistrate. Only one worker Momeen (who may have himself been indebted to the employer) appeared when the inspection was carried out on 15.12.2011. In the absence of the complainants this Court has no way to ascertain at this stage whether the report of the Labour Enforcement Officer and Naib Tehsildar was completely fair and unbiased or whether some influence has been exercised by the brick-kiln owner to obtain the favourable report in the absence of the complainants. No registers or documents maintained under any provision of law were produced before the inspecting team for substantiating the claim that the petitioners had been paid off their due amounts or that they had actually been paid remuneration @ Rs. 280 per 1000 bricks for the labour component in making the bricks. The National Human Rights Commission, which has been entrusted with the duty of being involved with the issue of bonded labour and of monitoring the bonded labour situation in the country by the Supreme Court in Writ Petition (Civil) No. 3922 of 1985, PUCL v State of Tamil Nadu, has rightly lamented the insensitivity and occasional complicity of government officials in its report on bonded labour titled "Know your Rights" by observing: "Instead of acting promptly on such complaints and effecting the identification and release of bonded labourers, they are even found helping the keepers of bonded labourers to arrange the dispersal and disappearance of bonded labour after hurriedly settling their accounts." That the conditions of employment with the employer were less than ideal in the present case was apparent from the fact that the brick-kiln had to be closed down once the petitioners left, when the enquiry team visited the work site. If the Labourers on the brick-kiln were being treated in a humane manner they were unlikely to have all left the premises causing the brick-kiln to shut down. That a proactive role is cast on the District Magistrates is clear from section 11 of the Bonded Labour (Abolition) Act which provides that the District Magistrates or his nominated subordinate officers are to ensure the welfare of freed bonded labourers and their economic interests, so that they do not again lapse into debt bondage. A dual duty is cast on the District Magistrates, not only to rehabilitate bonded labourers after they have been identified and released, so that they are prevented from again lapsing into bondage, but he must give preventive relief to vulnerable classes of people, such as landless agricultural labourers or share croppers facing droughts, or bonded child labour in the sericulture processing, carpet-weaving industry or match and fire crackers industries or distress migrant labourers working in stone quarries, or brick-kilns or beedi manufacturing, or construction projects, or as gatherers of forest produce or in pisciculture etc. under contractors who advance bonded debts for exacting bonded labour. There are a large number of welfare schemes for poverty alleviation at the Central and State levels for this purpose, such as the Central Mininistry of Labour sponsored scheme of 1978 which provides Rs. 20,000 for the rehabilitation of the identified bonded labourer with a 50:50 contribution by the Centre and the State, or the Mahatma Gandhi National Rural Employment Guarantee Scheme. Other measures for preventing and rehabilitating bonded labour are stricter enforcement of the Minimum Wages, Payment of Wages and Contract labour(Regulation and Abolition) and Inter-State Migrant Workmen Acts wherever they are applicable and the obligations therein to maintain necessary records and registers, more comprehensive land reforms and distribution of surplus land, land development, provision of house sites and low cost dwelling units to the poor, improvement in the Public distribution System for distributing essential commodities to a targeted population, improvement of the public health and State sponsored health insurance schemes, provision of micro-finance for vulnerable sections, assistance in setting up poultry, piggery, and dairy units, improvement in animal husbandry, horticultural and agricultural practices, training for acquiring new skills, provision of free primary education, and more widespread availability of special schemes for widows and old aged persons, providing rights for fishing in water bodies, for collecting and processing forest produce, or for surface mining and quarrying of minerals (especially minor minerals) which could be granted to self-help groups (swayam sahayata samoohs) of such labourers, and protection of civil rights. Bonded labour offences have been made cognizable, though bailable under section 22 of the Bonded Labour Act. Under section 23 they are to be summarily tried by an Executive Magistrate who has been given the powers of a 1st or 2nd Class Judicial Magistrate, and extracting bonded labour from a person has been made punishable with imprisonment up to three years and fine up to Rs. 2000. Even giving a person a bonded debt invites the same punishment. The Constitutional provisions for checking bondage and human trafficking also need mention. Thus Article 23(1) of the Constitution prohibits any form of trafficking in human beings and forced labour, and the contravention of this prohibition has been made punishable in law. Article 39(a) provides that men and women equally have a right to an adequate means of livelihood. Article 39 (e) requires that the health and strength of workers, men and women, and the tender age of children are not abused and that the citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 42 casts a duty on the State to secure just and humane conditions of work and for maternity relief. Article 43 enjoins a duty on the State to endeavour to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas. Apart from the Constitutional provisions, a few of the international safeguards for prohibiting human trafficking and bonded labour, are mentioned below. According to the Forced Labour Convention of 1930 (No.29) [Article 2 (1)] ? the term "forced or compulsory labour" means all work or service which is exacted from any person under the threat of any penalty and for which the said person has not offered himself voluntarily. The ILO Convention states that member countries are to suppress the use of forced or compulsory labour in all its forms within the shortest possible period. (India ratified the ILO Convention on Forced Labour (No.29) in 1953). Article 4 of the Universal Declaration of Human Rights, 1948 states that "No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms." The UN Supplementary Convention on the Abolition of Slavery (1956) defines debt bondage as "the status or condition arising from a pledge by a debtor of his personal service or those of a person under his control as a security for a debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined." In the ILO Report on Stopping Forced Labour (2001) ? the term, bonded labour refers to a worker who rendered service under conditions of bondage arising from economic consideration, notably indebtedness through a loan or an advance. Where debt is the root cause of bondage, the implication is that the worker (or his dependents or heirs) are tied to a particular creditor for a specified or unspecified period until the loan is repaid. We also find that District and tahsil (sub-divisional) level Vigilance Committees have been constituted under section 13 of the Bonded Labour System (Abolition) Act, 1976 for identifying the bonded labourers in a district and for maintaining statistics and records and monitoring the interests of bonded labourers or freed bonded labourers. However although two of of the district and tahsil Vigilance Committee members are civil society social workers and three belong to the scheduled castes or tribes, but being the government or the D.M.'s nominees, they usually refrain from embarrassing the District Magistrate if he has taken the position that elements of debt bondage were absent in a particular case or that a particular area was bonded labour free. Unlike the D.M. they also lack executive powers and receive no financial support for transport or other work. Experience shows that district or sub-divisional vigilance committees have not been much better than government functionaries in tackling the problem of bonded labour. Even the local body panchayat members because of their position in the village feudal power structure usually support the keepers of bonded labour who are normally from a dominant caste. A problem also arises because either the bonded labourer who is usually totally economically dependent on his employer is unwilling to maintain his claim of being held in bondage, when examined by the concerned Magistrate or other government functionary, because of the threats extended to him by his keeper, (and the local feudal structure that is usually supportive of the keeper) that the labourer and his family's survival is not possible if he presses his complaint, and that he would be isolated after the DM or civil society supporter's departure from the scene. Also where distress migrant labourers (as may possibly have happened in the present case) leave the place voluntarily or forcibly, or after being handed out a pittance of their due wages, they are usually unavailable to press their complaint before the concerned Magistrate, hence we find that in the rarest case has any one been convicted or sent to jail for a bonded labour offence. Government officials at the village level such as the panchayat secretary, or the revenue officials like the lekhpal or patwari or beat police personnel usually want to oblige the feudal power holders in the village, and are aligned with the dominant persons there, who may be the keepers of bonded labourers themselves. Besides they have other functions to perform and are not required to keep records regarding the situation of bonded labourers in the village. They also have a very servile attitude towards the DM or SDM, who may consider admission of debt bondage in his area a sign of his failure. Such panchayat secretaries, patwaris and lekhpals can therefore not be expected to be keen on forwarding bonded labour complaints to the competent Magistrates for inquiry or trial. However para legals trained by the sub-divisional or district Legal Aid Services Authorities and panel and retainer lawyers, who are to be introduced to man the legal aid clinics which are to be set up in each village or cluster of villages, under the National Legal Services Authority (Legal Aid Clinics) Scheme, 2010 and the National Legal Services Authorities (Legal Aid Clinics) Regulations 2011 in pursuance of section 12(b) of the Legal Services Authorities Act, 1987 which calls for providing free legal services to victims of trafficking in human beings or begar as referred to in Article 23 of the Constitution, would stand on a different footing. The said lawyers and para legals being under the supervision of the local and district judiciary and the Legal Services institutions would be relatively independent of the D.M. or the village power structure and would prove far more useful for pressing and pursuing debt bondage issues in the village. Once the legal aid clinics are set up and the paralegals and panel lawyers are available at the village, instant inquiries in matters of bondage can be conducted, even before the migrant bonded labourers leave for their original homes. As the Legal Aid Clinics Scheme and Regulations also speak of acquainting eligible persons at the grass roots level belonging to the Scheduled Castes and tribes or other backward classes and other socially and economically weak persons with their rights under various government welfare schemes, and visualize co-ordinating efforts with local civil society groups, using pre-litigation alternative dispute resolution methods, conducting Lok Adalats locally when a substantial number of persons who are seeking a similar kind of legal relief are identified, encouraging law students to survey the problems in the area and to provide legal reliefs with the aid of the paralegals. Utilization of such paralegals, legal aid lawyers and students would prove far more effective for tackling the problem of debt bondage and also for advancing the welfare of the downtrodden sections of the people, which should be the concern of any sensitive and people oriented legal system. This Court is however of the opinion that the directions of the National Legal Services Authority to the State Authorities to set up Legal Aid Clinics and appoint para-legals and panel lawyers for villages in accordance with its flagship Legal Aid Clinics scheme is not proceeding at the pace required and the matters need to be expedited. We therefore direct the U.P. State Legal Services Authority to make sincere efforts to set up Legal Aid Clinics at the earliest, if possible within 4 months in all villages or clusters of villages as provided in the Legal Aid Clinics Scheme and to provide for paralegals, panel or retainer lawyers supervised by the sub-divisional or District Legal Services Authority to man the legal aid clinics in order to prevent debt bondage and to ensure access to the different government social welfare schemes, provision of minimum wages, land reforms and other poverty alleviation measures to members of the scheduled tribes and castes and other backward castes and other socially and economically deprived persons who are eligible for such reliefs under section 12 of the Legal Services Authorities Act. We think that preference for starting the legal aid clinics scheme be given to villages in areas where a greater number of bonded or child labour or minimum wage complaints have been made, or villages with greater socio-economic backwardness, with feudal structures and inadequate land reforms, degraded land, where there are a large number of unorganized and contract labour in stone quarrying, mining, gathering forest produce, or beedi, carpet, sericulture, pisciculture, fire crackers, pottery, brass, glass, bangle work, construction activities etc., poor condition of primary education, as these are the likely areas of concentration of bonded labour, and which are also the areas of greatest poverty and inequality calling for intervention on a priority basis. The Chief Secretary, Principal Secretary Law, Principal Secretary Home, Social Welfare and Women and Child Development, Member Secretary, U.P. State Legal Services Authority, and District Legal Services Authorities, DGP, UP, Labour Commissioner, U.P., Divisional Commissioners, District Magistrates and Sub-divisional magistrates, and other concerned government functionaries and the police personnel from the concerned police station are expected to give complete support in this effort, and to ensure co-ordination of different departments and to issue suitable directions for checking bonded labour and for ensuring that the socio-economic issues of such vulnerable sections are addressed on a priority and comprehensive basis. We find that in the cases of migrant bonded labourers, the bonded labourer may be from the same district or another district in the state, or he may be from another state. As after the bonded labour issue is raised usually the labourer voluntarily or forcibly goes back to his original home, and consequently no complainant is left to prosecute the complaint, (as in the present case). We think that henceforth whenever the complaining bonded labour belongs to the same district or another district in U.P., the matter may also be referred for examination to the the State Human Rights Commission and whenever the aggrieved bonded labour originates from a district outside U.P., the matter may be referred for examination to the National Human Rights Commission. The said Commissions may take cognizance on the reference if they deem appropriate and issue directions or submit their report. We also direct the D.M.s, DIGs/SSPs/SPs and District level Labour Commissioners of all districts to direct the subordinate officials and in-charges of the police stations concerned to initiate immediate action in the matters and to inform the District and Sub-divisional Legal Services Authorities which shall forthwith examine the complainants and investigate into the genuineness of the bonded labour complaints and give legal assistance to the bonded labourer complainants for following up the matter with the competent authorities irrespective of whether Legal Aid Clinics have been set up in that particular area. We direct the Chief Secretary/Principal Secretary Home/Social Welfare, U.P., DGP, U.P., and Principal Secretary, Labour/Labour Commissioner U.P. and Member Secretary, U.P., Legal Services Authority, U.P., Lucknow to issue necessary directions for fulfilling the aforesaid objectives. Let a copy of this order be sent within two weeks to the Chief Secretary, U.P., Director General of Police, U.P., Principal Secretary, Social Welfare, Women and Child Development, U.P., Principal Secretary, Home, U.P., Principal Secretary (Law) U.P, Principal Secretary� (Labour), U.P. , Labour Commissioner, U.P., Kanpur,� Member-Secretary, National Legal Services Authority, New Delhi, State Legal Services Authority, U.P., National Human Rights Commission, New Delhi, U.P. State Human Rights Commission, Lucknow, all District Legal Services Authorities (District Judges), all Divisional Commissioners, District Magistrates, and DIG/SSP/SP in-charge of law and order in all districts in U.P., for further communication to their subordinate officials and compliance. Copy of the order may also be furnished to the learned Government Advocate within� two weeks for compliance. With these observations, the petition is finally disposed of. Order Date :- 5.1.2012 sfa/