Guardians and Wards Act

November 30, 2014

Chapter I – Preliminary

Section 1. Title, extent and commencement.

(1)This Act may be called the Guardians and Wards Act, 1890.

(2) It extends to the whole of India ¹[except the State of Jammu and Kashmir] ²[***]; ³[***].

(3) It shall come into force on the first day of July, 1890.

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1. Subs. by Act 3 of 1951, sec. 3 and Schedule, for “except Part B States’’.

2. Repealed by the A.O., 1948, for the words “inclusive of Brit­ish Baluchistan”.

3. The word “and” omitted by Act 40 of 1949, sec. 3 and Sch. II.

Section 2. (Repealed by the Repealing Act, 1938 (1 of 1938), sec. 2 and Schedule).

(Repealed by the Repealing Act, 1938 (1 of 1938), sec. 2 and Schedule)

Section 3. Saving of jurisdiction of Courts of Wards and Chartered High Courts.

This Act shall be read subject to every enactment here­tofore or hereafter passed relating to any Court of Wards by ¹[any competent Legislature, authority or person in ²[any State to which this Act extends]]; and nothing in this Act shall be construed to effect or in any way derogate from, the jurisdiction or authority of any Court of Wards, or to take away any power possessed by ³[any High Court ⁴[***]].

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1. Subs. by the A.O., 1937 for “the Governor-General in Council or by a Governor or Lieutenant-Governor in Council”.

2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “Part A States and Part C States”.

3. Subs. by the A.O., 1937, for “any High Court established under the Statutes 24 and 25 Victoria, Chapter 104 (an Act for estab­lishing High Courts of Judicature in India)”.

4. The words “established in Part A States and Part C States’’, omitted by Act 3 of 1951, sec. 3 and Sch.

Section 4. Definitions.

In this Act, unless there is something repugnant in the subject or context-

(1) “Minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority.

2. “Guardian” means minor for whose person or property or both there is a guardian.

3. “Ward” means a minor for whose person or property or both there is a guardian.

4. “District Court” has the meaning assigned to that expression in the code of Civil Procedure, 1882 (14 of 1882)¹, and includes a High Court in the exercise of its ordinary original civil jurisdiction,

²5. “The Court” means-

(a) The District Court having jurisdiction to entertain an application under

this Act for an order appointing or declaring a person to be a guardian, or

(b) Where a guardian has been appointed or declared in pursuance of any such application-

(i) The Court which, or the Court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian, or

(ii) In any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides, or

(a) In respect of any proceeding transferred under Section 4-A, the Court of the officer to whom such proceeding has been transferred.

(1) “Collector” means the chief officer in charge of the revenue-administration of a district and includes any officer whom the State Government, by notification in the official Gazette may, by name or in virtue of his office, appoint to be a Collector in any local area or with respected to any class of persons, for all or any of the purposes of this Act.

³[***]; and

(2) “Prescribed” means prescribed by rules made by the High Court under this Act.

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1. See now the Code of Civil Procedure, 1908 (5 of 1908).

2. Subs. by Act 4 of 1926, sec. 2, for the original clause (5).

3. Clause (7) omitted by Act 3 of 1951, sec. 3 and Schedule.

Section 4A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.

¹[4A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.—(1) The High Court may, by general or special order, empower any officer exercising original civil jurisdiction subordinate to a district court, or authorise the Judge of any District Court to empower any such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer under the provisions of this section.

2. The Judge of a district court may, by order in writing, transfer at any stage any proceeding under this Act pending in his Court for disposal to any officer subordinate to him empowered under sub-section (1).

3. The Judge of a district court may at any stage transfer to his own Court or to any officer subordinate to him empowered under sub-section (1) any proceeding under this Act pending in the Court of any other such officer.

4. When any proceedings are transferred under this section in any case in which a guardian has been appointed or declared, the Judge of the District Court may, by order in writing, declare that the Court of the Judge or officer to whom they are transferred shall, for all or any of the purpose of this Act, be deemed to the Court which appointed or declare the guardian.

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1. Ins. by Act 4 of 1936, sec. 3.

Chapter II – Appointment and Declaration of Guardians

Section 5. Power of parents to appoint in case of European British subjects.

(Rep. By the Part B States (Laws) Act, 1951 (3 of 1951), sec. 3 and Schedule.

Section 6. Saving of power of appoint in other cases.

In the case of a minor ¹[***], nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property or both, which is valid by the law to which the minor is subject.

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1.  The words “who is  not  an  European  British subject”, omitted by Act 3 of 1951, sec. 3 and Sch.

Section 7. Power of the Court to make orders as to guardianship.

(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made- Appointing a guardian of his person or property or both, or declaring a person to be such a guardian the Court may make an order accordingly.

An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

Where a guardian has been appointed by will or other instrument or appointed or declare by the Court, an order under this section appointing or declaring another person to be guardian in his stand shall not be made until the powers of the guardian appointed or declare as aforesaid have ceased under the provision of this Act.

Section 8. Persons entitled to apply for order.

An order shall not be made under the last foregoing section except on the application of the person desirous of being, or claiming to be, the guardian of the minor, or any relative of friend of the minor, or the Collector of the district or other local area within which the minor ordinarily resides or in which he has property, or the Collector having authority with respect to the class to which the minor belongs.

Section 9. Court having jurisdiction to entertain application.

(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

If the application is with respect of the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in the place where he has property.

If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly on conveniently by any other District Court having jurisdiction.

Section 10. Form of application.

(1) If the application is not made by he Collector, it shall be by petition signed and verified in manner prescribed by the Code of Civil Procedure, 1882 (14 of 1882),¹ for the signing and verification of a plaint, and stating, so far as can be ascertained-

the name, sex, religion, date of birth and ordinary residence of the minor,

where the minor is a female, whether she is married and if so, the name and age of her husband,

the nature, situation and approximate value of the property,if any, of the minor,

the name and residence of the person having the custody or possession of the person or property of the minor,

what near relations the minor has and where they reside,

whether a guardian of the person or property or both, of the minor has been appointed by any person entitled to claiming to be entitled by the law to which the minor is subject to make such an appointment

whether an application has at any time been made to the Court or to any there Court with respect to the guardianship of the person or property or both, of the minor and if so, when, to what Court and with what result,

whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both.

Where the application is to appoint a guardian, the qualifications of the proposed guardian.

Where the application is to declare a person to be a guardian, the grounds on which that person claims,

The cause which have led to the making of the application, and

Such other particulars, if any, as may be prescribed or as the nature of the application renders it necessary to state.

If the application is made by the Collector, it shall be by letter addressed to the Court forwarded by post or in such other manners as may be found convenient, and shall state as far as possible the particulars mentioned in sub-section (1).

The application must be accompanied by a declaration of the willingness of the proposed guardian to act, and the declaration must be signed by him and attested by at least two witnesses.

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1. See now the Code of Civil Procedure, 1908 (5 of 1908).

Section 11. Procedure on admission of application.

(1) If the court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof and cause notice of the application and of the date fixed for the hearing.

To be served in the manner directed in the Code of Civil Procedure, 1882 (14 of 1882) ¹on

the parents of the minor if they are residing in ²(any State to which this Act extends)

the person, if any, named in the petition or letter as having the custody or possession of

the person or property of the minor the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant, and

any other person to whim, in the opinion of the Court special notice of the applicant should be given, and to be posted on some conspicuous part of the court-house and of the residence of the minor, and otherwise published in such manner as the Court, subject to any rules made by the High Court under this Act, thinks fit.

The state Government may, by general or special order, require that when any part of the property described in a petition under sec. 10, sec-section (1) is land of which a Court of Wards could assume the superintendence, the Court shall also cause a notice as aforesaid to be served on the Collector in whose district the minor ordinarily resides and on every Collector in whose district any portion of the land is situate, and the Collector may cause the notice to be published in any manner he deems fit.

No charge shall be made by the Court or the Collector for the service or publication of any notice served or published under sub-section (2).

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1. See now the Code of Civil Procedure, 1908 (5 of 1908).

2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “a Part A State or a Part C State”.

Section 12. Power to make interlocutory order for production of minor and interim protection of person and property.

(1) The Court may direct that the person if any, having the custody of the minor, shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.

If the minor is a female who ought not to be compelled to appear in public, the claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or

Any person to whom the temporary custody and protection of the property if a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property

Section 13. Hearing of evidence before making of order.

On the day fixed for the hearing of the application or as soon afterwards as may be, the Court shall hear such evidence as may be adduced in support of or in opposition to the application.

Section 14. Simultaneous proceedings in different Courts.

(1) If proceedings for the appointment or declaration of a guardian of a minor are taken in more Courts than one, each of those courts shall, on being apprised of the proceedings in the order Court or Courts, stay the proceedings before itself.

¹In any other case in which proceedings are stayed under sub-section (1), the Courts shall report the case to and to guided by such orders as they may receive from their respective State Governments.

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1.  Subs. by the A.O. 1937, for the original sub-section (3).

Section 15. Appointment or declaration of several guardians.

(1) If the law to which the minor is subject admits of his having two or more joint guardians of his person or property or both, the Court may, if it thinks fit, appoint or declare them.

¹[***]

Separate guardians may be appointed or declared of the person and of the property of a minor.

If a minor has several properties, the Court may, if it thinks fit, appoint or declare a separate guardian for any one or more of the properties.

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1.  Sub-sections (2) and (3) omitted by Act 3 of 1951, sec. 3 and Sch.

Section 16. Appointment or declaration of guardian for property beyond jurisdiction of the Court.

If the Court appoints or declares a guardian for any property situate beyond the local limits of its jurisdiction, the court having jurisdiction in the place where the property is situate shall, on production of a certified copy of the order appointing or declaring the guardian accept him as duly appointed or declared and give effect to the order.

Section 17. Matter to be considered by the Court in appointing guardian.

(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

In considering what will be for the welfare of the minor, the Courts shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

If the minor is old enough to form an intelligent preference, the Court may consider that preference.

The Court shall not appoint or declare any person to be a guardian against his will.

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1. Sub-section (4) omitted by Act 3 of 1951, sec. 3 and Sch.

Section 18. Appointment or declaration of Collector in virtue of office.

Where a Collector is appointed or declared by the Court in virtue of his office to be guardian of the person or property or both, of a minor, the order appointing or declaring him shall be deemed to authorize and require the person for the time being holding the office to act as guardian of the minor with respect to his person or property or both, as the case may be.

Section 19. Guardian not to be appointed by the Court in certain cases.

Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person of a minor who is married female and whose husband is not, in the opinion of Court, unfit to be guardian of her person,

¹[***] of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor; or

(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

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1. The words “subject to the provisions of this Act with respect to European British subjects” omitted by Act 3 of 1951, sec. 3 and Sch.

Chapter III – Duties, Rights and Liabilities of Guardians

Section 20. Fiduciary relation of guardian to ward.

(1) A guardian stands in a fiduciary relation to his ward, and, save as provided by the will or other instrument, if any, by which he was appointed, or by his act, he must not make any profit out of his office.

The fiduciary relation of a guardian to his ward extends to and affects purchases by the guardian of the property of the ward, and by the ward of the property of the guardian, immediately or soon after the ward has ceased to be a minor and generally all transactions between them while the influence of the guardian still lasts or is recent.

Section 21. Capacity of minor to act as guardians.

A minor is incompetent to act as guardian of any minor except his own wife or child or where he is the managing member of an undivided Hindu family, the wife or child of another minor member of that family.

Section 22. Remuneration of guardian.

(1) A guardian appointed or declared by the Court shall be entitled to such allowances, if any, as the Court thinks fit for his care and pains in the execution of his duties.

(2) When an officer of the Government, as such officer, is so appointed or declared to be guardian, such fees shall be paid to the Government out of the property of the ward as the State Government, by general or special order, directs.

Section 23. Control of Collector as guardian.

A Collector appointed or declared by the Court to be guardian of the person or property or both, of a minor shall, in all matters connected with the guardianship of his ward, be subject to the control of the State Government or of such authority as that Government, by notification in the official Gazette, appoints in this behalf.

Section 24. Duties of guardian of the person.

A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.

Section 25. Title and guardian to custody of ward.

(1) if a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).

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1. See now section 97 of the Code of Criminal Procedure, 1973 (2 of 1974).

Section 26. Removal of ward from jurisdiction.

(1) A guardian of the person appointed or declared by the Court, unless he is the Collector or is a guardian appointed by will or other instrument, shall not, without the leave of the Court by which he was appointed or declared, remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed.

The leave granted by the Court under sub-section (1) may be special or general and may be defined by the order granting it.

Section 27. Duties of guardian of property.

A guardian of the property of a ward is bound to deal with as carefully as a man of ordinary prudence would deal with it, if it were his own and subject to the provisions of this Chapter, he may do all acts which are reasonable and proper for the realization, protection or benefit of the property

Section 28. Power of testamentary guardian.

Where a guardian has been appointed by will or the other instrument, his power to mortgage or charge, or transfer by sale, gift, exchange or otherwise, immovable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the Court which made the declaration permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable p

Section 29. Limitation of powers of guardian of property appointed or declared by the Court.

Where a person other than a Collector, or than a guardian appointed by will or other instruments, has been appointed or declared by the Court to be guardian of the property of award, he shall not, without the previous permission of the Court,- Mortgage or charge or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.

Section 30. Violability of transfers made in contravention of section 28 or section 29.

A disposal of immovable property by a guardian in contravention of either of the two last foregoing sections is violable at the instance of any other person affected thereby.

Section 31. Practice with respect to permitting transfer under section 29.

(1) Permission to the guardian to do any of the acts mentioned in section 29 shall not be granted by the Court except in case of necessity or for an evident advantage to the ward.

The order granting the permission shall recite the necessity or advantage, as the case may be, describe the property with respect to which the act permitted is to be done, and specify such conditions, if any, as the Court may see fit to attach to the permission, and it shall be recorded, dated and signed by the Judge of the Court with his own hand, or when from any cause he is prevented from recording the order with his own hand, shall be taken down in writing from his dictation and be dated and signed by him.

The Court may in its discretion attach to the permission the following among other conditions, namely:- That a sale shall not be completed without the sanction of the Court.

That a sale shall be made to the highest bidder by public auction before Court or some person specially appointed by the Court for that purpose, at a time and place to be specified by the Court, after such proclamation of the intended sale as the Court subject to any rules made under this Act by the High Court, directs,

That a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and convenience as the Court directs.

That the whole or any part of the proceeds of the act permitted shall be paid into the Court by the guardian, to be disbursed therefrom or to be invested by the Court on prescribed securities or to be otherwise disposed of as the Court directs.

Before granting permission to a guardian to do an act mentioned in section 29, the court may cause notice of the application for the permission to be given to any relative or friend of the ward who should, in its opinion, receive notice thereof, and shall hear and record the statement of any person who appears in opposition to the application

Section 32. Variation of powers of guardian of property appointed or declared by the Court.

Where a guardian of the property of a ward has been appointed or declared by the Court and such guardian is not the Collector, the Court may, form time to time, by order, define, restrict or extend his powers with respect to the property of the ward in such manner and to such extend as it may consider to be for the advantage of the ward and consistent with the law to which the ward is subject..

Section 33. Right of guardian so appointed or declared to apply to the Court for opinion in management of property of ward.

(1) A guardian appointed or declared by the Court may apply by petition to the Court which appointed or declared him for its opinion, advice or direction on any present question respecting the management or administration of the property of his ward.

If the Court considers the question to be proper for summary disposal, it shall cause a copy of the petition to be served on, and the hearing thereof may be attended by, such of the person interested in the application as the Court thinks fit.

The guardian sitting in good faith the facts in the petition and acting upon the opinion, advice or direction given by the Court shall be deemed, so far as regards his own responsibility, to have performed his duty as guardian in the subject-matter of the application.

Section 34. Obligations on guardian of property appointed or declared by the Court.

Where a guardian of he property of a ward has been appointed or declared by the Court and such guardian is not the Collector, he shall,- If so required by the Court, give a bond, as nearly as may be in the prescribed form, to the Judge of the Court to ensure for the benefit of the Judge for the time being, with or without sureties, as may be prescribed engaging duly to account for what he may receive in respect of the property of the ward.

If so required by the Court, deliver to the Court, within six months from the date of his appointment or declaration by the Court, or within such other time as the Court directs, a statement of the immovable property belonging to the ward, of the money and other movable property which he has received on behalf of he ward up to the date of delivering the statement, and of the debts due on that date to on from the ward.

If so required by the Court, exhibit his accounts in the Court at such times and in such form as the Court form time to time directs.

If so required by the Court, pay into the Court at such time as the Court directs the balance due from him on those accounts, or so much thereof as the Court directs, and

Apply for the maintenance, education and advancement of the ward and of such person as are dependent on him, and for the celebration of ceremonies to which the ward or any of those persons may be party, such portion of the income of the property of the ward as the Court from time to time directs, and , if the Court so directs, the whole or any part of that property

Section 34A. Power to award remuneration for auditing accounts.

¹[34A. Power to award remuneration for auditing accounts.—When accounts are exhibited by a guardian of the property of a ward in pursuance of a requisition made under clause (c) of section 34 or otherwise, the Court may appoint a person to audit the accounts, and may direct that remuneration for the work be paid out of the income of the property.

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1.  Ins. by Act 17 of 1929, sec. 2.

Section 35. Suit against guardian where administration-bond- was taken.

Where a guardian appointed or declared by the Court has given a bond duly to a account for what he may receive in respect of the property of his ward, the Court may, on application made by petition and on being satisfied that the engagement of the bond has not been kept, and upon such term as to security, or providing that any money received by paid into the Court, or otherwise as the Court thinks fit, assign the bond to some proper person, who shall thereupon the entitled to sue on the bond in his own name as if the bond had been originally given to him instead of to the Judge of the Court, and shall be entitled to recover thereon, as trustee for the ward, in respect of any breach thereof.

Section 36. Suit against guardian where administration-bon- was not taken.

(1) Where a guardian appointed or declared by the Court has not given a bond as aforesaid, any person, with the leave of the Court, may, as next friend, at any time during the continuance of the minority of the ward, and upon such terms as aforesaid, institute a suit against the guardian, or, in case of his death, against his representative, for an account of what the guardian has received in respect of the property of the ward, and may recover in the suit, as trustee for the ward, such amount as may be found to be payable by the guardian or his representative, as the case may be.

The provisions of such-section (1) shall, so far as they relate to a suit against a guardian, be subject to the provisions of section 4400 of the Code of Civil Procedure as amended by this Act, 1882 (14 of 1882).

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1.  See now Order XXXII, rules 1 and 4(2), in the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).

Section 37. General liability of guardian as trustee.

Nothing in either of the two last foregoing sections shall be construed to deprive a ward or his representative of any remedy against his guardian, or the representative of the guardian, which, not being expressly provided in either of those sections, any other beneficiary or his representative would have against his trustee or the representative of the trustee.

Section 38. Right of survivorship among joint guardians.

On the death of one of two or more joint guardians, the guardianship continues to the survivor or survivor until a further appointment is made by the Court.

Section 39. Removal of guardian.

The court may, on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely :- For abuse of his trust for continued failure to perform the duties of his trust, for incapacity to perform the duties of his trust, for ill-treatment, or neglect to take proper care, of his ward, for contumacious disregard of any provision of this Act or of any order of the Court, for conviction of an offence implying, in the opinion of the Court, a defect of character which unfits him to be the guardian of his ward.

For having an interest adverse to the faithful performance of his duties.

For ceasing to reside within the local limits of the jurisdiction of the Court.

In the case of a guardian of the property, for bankruptcy or insolvency, By reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject.

Provided that a guardian appoint by will or other instrument, whether he has been declared under this Act, or not, shall not be removed- For the cause mentioned in clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that person made and maintained the appointment In ignorance of the existence of the adverse interest, or for the cause mentioned in clause (h) unless such guardian has taken up such a residence as, in the opinion of the Court, renders it impracticable for him to discharge the functions of guardian

Section 40. Discharge of guardian.

(1) If a guardian appointed or declared by the Court desires to resign his office, he may apply to the Court to be discharged.

If the court finds that there is sufficient reason for the application, it shall discharge him, and if the guardian making the application is the Collector and the State Government approves of his applying to be discharged, the Court shall in any case discharge him

Section 41. Cessation of authority of guardian.

(1) The powers of a guardian of the person cease.- By his death, removal or discharge by the Court of wards assuming superintendence of the person of the ward, by the ward ceasing to be a minor in the case of a female ward, by her marriage to a husband who is not unfit to be guardian of her person or, if the guardian was appointed or declared by the Court, by her marriage to a husband who is not, in the opinion of the Court, so unfit, or in the case of a ward whose father was unfit to be guardian of the person of the ward, by the father ceasing to be so or, if the father was deemed by the Court to be so unfit, by his ceasing to be so in the opinion of the Court.

The powers of a guardian of the property cease- by his death, removal or discharge, by the Court of Wards assuming superintendence of the property of the ward, or by the ward ceasing to be a minor.

When for any cause the powers of a guardian cease, the Court may require him of, if he is dead, his representative to delivers as it directs any property in his possession or control belonging to the ward or any accounts in his possession or control relating to any past of present of the ward.

When he has delivered the property or accounts as required by the Court, the Court may declare him to be discharged from his liabilities save as regards any fraud which may subsequently be discovered

Section 42. Appointment of successor to guardian dead, discharged or removed.

When a guardian appointed or declared by the Court is discharged, or, under the law to which the ward is subject, ceases to be entitled to act, or when any such guardian or a guardian appointed by will or other instrument is removed or dies, the Court, of its own motion or on application under Chapter II, may, if the ward is still a minor, appoint or declare another guardian of his person or property, or both, as the case may be.

Chapter IV – Supplemental Provisions

Section 43. Orders for regulating conduct or proceedings of guardians, and enforcement of those orders.

(1) The Court may, on the application of any person interested or of its own motion, make an order regulating the conduct or proceedings of any guardian appointed or declared by the Court.

(2) Where there are more guardians than one of a ward and they are unable to agree upon a question affecting his welfare, any of them may apply to the Court for its direction, and the Court may make such order respecting the matter in difference as it thinks fit.

(3) Except where it appears that the object of making an order under sub-section (1) or sub-section (2) would be defeated by the day, the Court shall, before making the order, direct notice of the application therefor or of the intention of the Court to make it, as the case may be, to be given, in a case under sub-section (1), to the guardian or, in a case under sub-section (2), to the guardian who has not made the application.

(4) In case of disobedience to an order made under sub-section (1), or sub-section (2), the order may be enforced in the same manner as an injunction granted under section 492 or section 493 of the Code of Civil Procedure, 1882 (14 of 1882)¹, in a case under sub-section (1) as if the ward were the plaintiff and the guardian were the defendant or, in a case under sub-section (2), as if the guardian who made the application were the plaintiff and the other guardian were the defendant.

(5) Except in a case under sub-section (2), nothing in this section shall apply to a Collector who is, as such, a guardian.

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1. See now Order XXXIX, rules 1 and 2 in the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).

Section 44. Penalty for removal of ward from jurisdiction.

If, for the purpose or with the effect of preventing the Court from exercising its authority with respect to a ward, a guardian appointed or declared by the Court removes the ward from the limits of the jurisdiction of the Court in contravention of the provisions of section 26, he shall be liable, by order of the Court, to fine not exceeding one thousand rupees, or to imprisonment in the civil jail for a term which may extend to six months.

Section 45. Penalty for contumacy.

(1) In the following cases, namely :- If a person having the custody of a minor fails to produce him or cause him to be produced in compliance with a direction under section 12, sub-section (1), or to do his utmost to compel the minor to return to the custody of his guardian in obedience to an order under section 25, sub-section (1),or

If a guardian appointed or declared by the Court fails to deliver to the Court, within the time allowed by or under clause (b) of section 34, a statement required under that clause, or to exhibit accounts in compliance with a requisition under clause (C) of that section, or to pay into the Court the balance due from him on those accounts in compliance with a requisition under clause (d) of that section.

If a person who has ceased to be guardian, or the representative of such a person, fails to deliver any property or accounts in compliance with a requisition under section 41, sub-section (3).

The person, guardian or representative, as the case may be, shall be liable, by order of the Court, to fine not exceeding one hundred rupees, and in case of recusancy to further fine not exceeding ten rupees for each day after the first during which the default continues, and not exceeding five hundred rupees in the aggregate, and to detention in the civil jail until the undertakes to produce the minor or cause him to be produced, or to compel his return, or to deliver the statement, or to exhibit the accounts, or to pay the balance, or to deliver the property or accounts, as the case may be.

If a person who has been released from detention on giving an undertaking under sub-section (1) fails to carry out the undertaking within the time allowed by the Court, the Court may cause him to be arrested and recommitted to the civil jail.

Section 46. Reports by Collectors and subordinate Courts.

(1) The Court may call upon the Collector, or upon any court subordinate to the court, for a report on any matter arising in any proceeding under this Act and treat the report as evidence.

For the purpose of preparing the report the Collector or the Judge of the subordinate Court, as he case may be, shall make such inquiry as he deems necessary, and may for the purposes of the inquiry exercise any power of compelling the attendance of witnesses to give evidence or produce a document which is conferred on a Court by the Code of Civil Procedure, 1882 (14 of 1882)¹

————

1.  See now the Code of Civil Procedure, 1908 (5 of 1908).

Section 47. Orders appeasable.

An appeal shall lie to the High Court from an order made by a ¹[***]Court- under Section 7, appointing or declaring or refusing to a appoint or declare a guardian, or under Section 9 sub-section (3) returning an application, or under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian, or under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto, or under Section 28 or section 29, refusing permission to a guardian to do an act referred to in the section, or under section 32, defining, restricting or extending the powers of a guardian, or under section 39, removing a guardian, or under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians or enforcing the order, or under section 44 or section 45, imposing a penalty.

—————

1.The word “district” repealed by Act 4 of 1926, sec. 4.

Section 48. Finality of others orders.

Save as provided by the last foregoing section and by section 622 of the Code of Civil Procedure, 1882 (14 of 1882)¹ an order made under this Act shall be final, and shall not be liable to be contested by suit or otherwise.

—————

1.  See now section 115 of the Code of Civil Procedure, 1908 (5 of 1908).

Section 49. Costs.

The costs of any proceeding under this Act, including the costs of maintaining a guardian or other person in the civil jail, shall, subject to any rules made by the High Court under this Act, be in the discretion of the court in which the proceeding is had.

Section 50. Power of High Court to make rules.

(1) In addition to any other power to make rules conferred expressly or implied by this Act, the High Court may from time to time make rules consistent with this Act- As to the matters respecting which, and the time at which, reports, should be called for from Collectors and subordinate Courts.

As to the allowances to be granted to, and the security to be required from, guardians, and the cases in which such allowances should be granted.

As to the procedure to be followed with respect to applications of guardians for permission to do acts referred to in section 28 and 29.

As to the circumstances in which such requisitions as are mentioned in clause (a), (b), (c) and (d) of section 34 should be made.

As to the preservation of statements and accounts delivered and exhibited by guardians.

As to the inspection of those statements and accounts by persons interested.

¹As to the audit of accounts under Section 34-A, the class of persons who should be appointed to audit accounts, and the scales of remuneration to be granted to them.

as to the custody of money, and securities for money, belonging to wards,

As to the securities on which money belonging to wards may be invested.

As to the education of wards for whom guardians, not being Collectors, have been appointed or declared by the Court, and

Generally, for the guidance of the Courts in carrying out the purposes of this Act.

Rules under clauses (a) and (I) of sub-section (1) shall not have effect until they have been approved by the ²(State Government) nor shall any rule under this section have effect until it has been published in the official Gazette.

—————

1.  Ins. by Act 17 of 1929, sec. 3.

2.  Subs. by A.L.O. 1950, for the words “Provincial Government”.

Section 51. Applicability of Act to guardians already appointed by Court.

A guardian appointed by, or holding a certificate of administration from, a Civil Court under any enactment repealed by this Act shall, save as may be prescribed, be subject to the provisions of this Act, and of the rules made under it, as if he had been appointed or declared by the Court under Chapter II.

Section 52. Amendment of Indian Majority Act.

(Rep. By the Repealing Act, 1938 (1 of 1938) section 2 and Schedule).

Section 53. Amendment of Chapter XXXI of the Code of Civil Procedure.

(Rep. By the code of Civil Procedure, 1908 ( 5 of 1908) section 156 and Sch. VI).

The schedule.

Enactment repealed.- (Rep. By the Repealing Act, 1938 (1 of 1938), section 2 and Schedule).

Representation of People Act

November 30, 2014

Section 1. Shot-title

(43 OF 1951)

[17th July, 1951]

An Act to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt ¹[***] practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.

BE it enacted by Parliament as follows:-

——————–

1. The words “and illegal” omitted by Act 27 of 1956, sec. 2.

This Act may be called the Representation of the People Act, 1951.

Section 2. Interpretation

(1) In this Act, unless the context otherwise requires,-

(a) Each of the expressions defined in section 2 or sub-section (1) of section 27 of the Representation of the People Act, 1950 (43 of 1950), but not defined in this Act, shall have the same meaning its in the Act;

(b) “Appropriate authority” means, in relation to an election to the House of the People or the Council of States ¹[***], the Central Government, and in relation to an election to the Legislative Assembly or the Legislative Council of a State, the State Government;

²[(bb) “Chief electoral officer” means the officer appointed under section 13A of the Representation of the People Act, 1950 (43 of 1950);]

(c) “Corrupt practice” means any of the practices specified in section 123 ³[***];

⁴[(cc) “District election officer” means the officer designated or nominated under section 13AA of the Representation of the People Act, 1950 (43 of 1950);]

(d) “Election” means an election to fill a seat or seats in either House of’ Parliament o in the House or either house of the Legislature of a State other than the State of Jammu and Kashmir ⁵[***];

⁶[(e) “Elector” in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950);]

⁷[(f) “Political party” means an association or a body of individual citizens of India registered with the Election Commission as a political party under section 29A;]

(g) “Prescribed” means prescribed by rules made under this Act;

⁸[(h) “Public holiday” means any day which is a public holiday for the purposes of section 25 of the Negotiable Instruments Act, 1881 (26 of 1881);]

⁹[*** ]

¹⁰[***]

¹¹[(i)] “Sign” in relation to a person who is unable to write his name means authenticate in such Banner as may be prescribed.

¹²[***]

¹³[*** ]

(2) For the purposes of this Act, ¹⁴[***] a Parliamentary constituency, an Assembly constituency, a Council constituency, a local authorities’ constituency, a graduates’ constituency and a teachers’ constituency shall each be treated as a constituency of a different class.

(3) Any requirement under this Act that a notification, order, rule, declaration, notice or list issued or made by any authority shall be published in the Official Gazette, shall, unless otherwise expressly provided in this Act, be construed as a requirement that the notification, order, rule, declaration, notice or list shall-

(a) Where it is issued or made by the Central Government, be published in the Gazette of India;

(b) Where it is issued or made by a State Government, be published in the Official Gazette of the State; and

(c) Where it is issued or made by any other authority, be published in the Gazette of India if it relates to an election to, or membership of, either House of Parliament ¹⁴[***] and in the Official Gazette of the State if it relates to an election to, or membership of, the House or either House of the Legislature of a State.

(4) Where under any of the provisions of this Act, anything is to be prescribed, different provisions may be made for different cases or classes of cases.

¹⁵ [***]

¹⁶[(5) Any reference in this Act to a law which is not in force in the State of Jammu and Kashmir shall, in relation to that State, be construed as a reference to the corresponding law, if any, in force in that State.]

¹⁵[***]

——————–

1 Certain words omitted by Act 103 of 1956, sec. 66.

2. Ins. by Act 27 of 1956, sec. 3.

3. The words and figures “or section 124” omitted by, sec. 3.

4. Ins. by Act 47 of 1966, sec. 15 (w.e.f. 14-12-1966).

5. Certain words omitted by Act 58 of 1958, sec. 14.

6. Subs. by Act 27 of 1956, sec. 3, for clause (e).

7. Clause (f) which was omitted by Act 27 of 1956, sec. 3 and ins. by Act 1 of 1989, see. 3 (w.e.f. 15-6-1989).

8. Ins. by Act 47 of 1966, sec. 15 (w.e.f. 14-12-1966).

9. Clauses (h) and (i) omitted by Act 27 of 1956, sec. 3.

10. Clause (i) re-lettered as clause (h) by Act 27 of 1956, sec. 3 and omitted by the Adaptation of Laws (No. 2) Order, 1956.

11. Clauses (k) and (i) re-lettered as clauses (i) and (k) by Act 27 of 1956, sec. 3.

12. Clause (j) ins. by Act 27 of 1956, sec. 3 and omitted by the Adaptation of Laws (No. 2) Order, 1956.

13. Clause (k) omitted by Act 47 of 1066, sec. 15 (w.e.f. 14-12-1966

14. Certain words omitted by Act 103 of 1956, sec. 66.

15. Subsections (5) and (7) omitted and subsection (6) renumbered as sub-section (5) by Act 27 of 1956, sec. 3.

16. Subs. by Act 47 of 1966, sec. 15, for sub-section (5).

Section 3. Qualification for membership of the Council of States

PART II

¹[QUALIFICATIONS AND DISQUALIFICATIONS]

Chapter I-Qualifications for Membership of Parliament

——————–

1. Subs. by Act 47 of 1966, sec. 16, for the previous heading (w.e.f. 14-12-1966).

¹[3. Qualification for membership of the Council of States

A person shall not be qualified to be chosen as a representative of any State ²[***] or Union territory in the Council of States unless he is an elector for a Parliamentary constituency in that State or territory.]

——————–

1. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for section 3.

2. The words and brackets “other than the State of Jammu and Kashmir” omitted by Act 47 of 1966, sec. 17 (w.e.f. 14-12-1966).

Section 4. Qualifications for membership of the House of the People

A person shall not be qualified to be chosen to fill a scat in the House of the People ¹[***]. unless-

(a) In the case of a seat reserved for the Scheduled Castes in any State, he is a member of any of the Scheduled Castes, whether of that State or of any other State, and is an elector for any Parliamentary constituency;

(b) In the case of a scat reserved for the Scheduled Tribes in any State (other than those in the autonomous districts of Assam), lie is a member of any of the Scheduled Tribes, whether of the State or of any other State (excluding the tribal areas of Assam), and is an elector for any Parliamentary constituency;

(c) In the case of a seat reserved for the Scheduled Tribes in the autonomous districts of Assam, he is a member of any of those Scheduled Tribes and is an elector for the Parliamentary constituency in which such seat is reserved or for any other Parliamentary constituency comprising any such autonomous district; ²[***]

³[(cc) In the case of the seat reserved for the Scheduled Tribes in the Union territory of ⁴[Lakshadweep], he is a member of any of those Scheduled Tribes and is all elector for the Parliamentary constituency of that Union territory; ⁵[***]

⁶[(ccc) In the case of the seat, allotted to the State of Sikkim, he is an elector for the Parliamentary constituency for Sikkim;]

(d) In the case of any other seat, he is all elector for any Parliamentary constituency.

——————–

1. Certain words omitted by Act 29 of 1975, sec. 12 (w.e.f. 15-8-1975).

2. The word “and” omitted by Act 47 of 1966, sec. 18 (w.e.f. 14-12-1966).

3. Ins. by Act 47 of 1966, sec. 18. (w.e.f. 14-12-1966)-

4. Subs. by the Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Adaptation of Laws Order, 1974 (w.e.f. 1-11-1973).

5. The word “and” omitted by Act 10 of 1976, sec. 2 and Sch. (w.e.f. 9-9-1975).

6. Ins. by Act 10 of 1976, sec. 2 and Sch. (w.e.f. 9-9-1975).

Section 5. Qualifications for membership of a Legislative Assembly

A person shall not be qualified to be chosen lo fill a seat in the Legislative Assembly of a State unless-

(a) In the case of a seat reserved for the Scheduled Castes or for the Scheduled Tribes of that State, he is i member of any of those castes or of those tribes, as the case may be, and is all elector for any Assembly constituency in that State;

(b) In the case of a seat reserved for all autonomous district of Assam, ¹[***] he is member of a ²[Scheduled Tribe of any autonomous districts] and is all elector for the Assembly constituency in which such scat or any other scat is reserved for that district; and

(c) In the case of any other seat, lie is all elector for any Assembly constituency in that State:

³[Provided that for the period referred to in clause (2) of article 371A, a person shall not be qualified to be chosen to fill any scat allocated to the Tuensang district in the Legislative Assembly of Nagaland unless lie is a member of the regional council referred to in that article.]

——————–

1. Certain words omitted by the North-Eastern Areas (Reorganisation) (Adaptation of Laws on Union Subjects) Order, 1974 (w.e.f. 21-1-1972).

2. Subs. by Act 47 of 1966, sec. 19, for “Scheduled Tribe of that district” (w.e.f. 14-12-1966).

3. Ins. by Act 27 of 1962, sec. 11

Section 5 A. Qualification for membership of Legislative Assembly of Sikkim

¹[Qualification for membership of Legislative Assembly of Sikkim. ²[(1)] Notwithstanding anything contained in section 5, a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State duly constituted under the Constitution) unless-

(a) In the case of a scat reserved for Sikkimese of Bhutia-Lcpcha origin, he is a person either of Bhutia or Lepcha origin and is an elector for any Assembly constituency in the State other than the constituency reserved for the Sanghas;

(b) In the case of a scat reserved for Sikkimese of Nepali origin, he is a person of Nepali origin and is an elector for any Assembly constituency in the State;

(c) In the case of a seat reserved for Scheduled Castes, he is a member of any of the castes specified in the Representation of Sikkim Subjects Act, 1974 and is an elector for any Assembly constituency in the State; and

(d) In the case of a seat reserved for Sanghas, he is an elector of the Sangha constituency.]

³[(2) Notwithstanding anything contained in section 5, a person shall not be qualified to be chosen to fill a scat in the Legislative Assembly of the State of Sikkim, to be constituted at any time after the commencement of the Representation of the People (Amendment) Act, 1980 (8 of 1980), unless-

(a) In the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, he is a person either of Bhutia or Lepcha origin and is and elector for any Assembly constituency in the State other than the constituency reserved for the Sanghas;

(b) In the case of a seat reserved for Scheduled Castes, he is a member of any of those castes in the State of Sikkim and is an elector for any Assembly constituency in the State;

(c) In the case of a seat reserved for Sanghas, he is an elector of the Sangha constituency; and

(d) In the case of any other seat, he is an elector for any Assembly constituency in the State.

Explanation.In this sub-section “Bhutia” includes Chunibipa, Dopthapa ,Dukpa, Kagatey, Sherpa, Tibetan, Tromopa and Yolimo.]

——————–

1. Ins. by Act 10 of 1976, sec. 2 and Sch. (w.e.f 9-9-1975).

2. Section SA renumbered as sub-section (1) of that section by Act 8 of 1980, sec. 3 (w.e.f. 1-9-1979).

3. Ins. by Act 8 of 1980, sec. 3 (w.e.f. 1-9-1979).

Section 6. Qualifications for membership of a legislative Council

(1) A person shall not be qualified to be chosen to fill a scat in the Legislative Council of a State to be filled by election unless he is an elector for any Assembly constituency in that State.

A person shall not be qualified to be chosen to fill a scat in the Legislative Council of a State to be filled by nomination by the Governor ¹[***] unless he is ordinarily resident in the State.

——————–

1. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.

Section 7. Definitions

¹[Chapter III.Disqualifications for Membership of Parliament and State legislatures

——————–

1. Subs. By Act 47 of l966, sec. 20, for Chapter III (w.e.f. 14-2-1966)

Section 7. Definitions.

In this Chapter,-

(a) “Appropriate Government” means in relation to any disqualification for being chosen as or for being a member of either House of Parliament, the Central Government, and in relation to any disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative Council of a State, the State Government;

(b) “Disqualified” means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.

Section 8. Disqualification on conviction for certain offences

¹[(1) A person convicted of an offence punishable under-

(a) Section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171 F (offence of undue influence or personation at an election) or sub-section (l) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or subsection (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) or the Indian Penal Code (45 of 1860), or

(b) The Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the preaching and practice of “untouchability”, and for the enforcement of any disability arising therefrom; or

(c) Section 11 (offence of importing or exporting prohibited goods) or the Customs Act, 1962 (52 of 1962); or

(d) Sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or

(e) The Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or

(f) The Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or

(g) Section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(h) Section 7 (offence of contravention of the provisions of section 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or

(i) Section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) or clause (a) of sub-section (2) of section 13 6 (offence of Fraudulently defacing or fraudulently destroying any nomination paper) of this Act; 2[or]

²[(j) Section 6 (offence of conversion of a place or worship) of the Places of Worship (Special Provisions) Act 1991], 3[or]

⁴[(k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971);] ⁷[ or]

⁷[(l) the Commission of Sati (Prevention) Act, 1987(3 of 1988.); or

(m) the Prevention of Corruption Act, 1988;( 49 of 1988) or

(n) the Prevention of Terrorism Act, 2002(15 of 2002.)]

“shall be disqualified, where the convicted person is sentenced to—

(i) only fine, for a period of six years from the date of such conviction;

(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release]

(2) A person convicted for the contravention of-

(a) Any law providing for the prevention of hoarding or profiteering- or

(b) Any law relating to the adulteration of food or drugs; or

(c) Any provisions of the Dory Prohibition Act, 1961 (28 of 1961);

⁸[* * *]

(3) A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

⁵[(4)] Notwithstanding anything 6[in sub-section (1). subsection 2 and subsection (3)] a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision Is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.

Explanation. In this section-

(a) “Lawprovidingforthepreveiitionofhoardingorprofitecrilig”meansanylaw,

Or any order, rule or notification having the force of law, providing for-

(i) The regulation of production or manufacture of any essential commodity;

(ii) The control of price at which any essential commodity may be brought or sold;

(iii) The regulation of acquisition, possession, storage, transport, distribution, Disposal, use or consumption of any essential commodity;

(iv) The prohibition of the withholding from sale of any essential commodity Ordinarily kept for sale-,

(b) “Drug” has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of 1940);

(c) “Essential commodity” has the meaning assigned to it in the Essential Commodities Act, 1955 (10 of 1955);

(d) “Food” has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of 1954).

——————–

1. Subs. by Act 1 of 1980, sec. 4, for subsections (1) and (2) (w.e.f. 15-3-1989)

2. Ins. by Act 42 of 1991, sec. 8 (w.e.f. 18-9-1991).

3. Added by Act 21 of 1996, sec. 3 (w.e.f. 1-9-1996).

4. Ins. by Act 21 of 1996, sec. 3 (w.e.f 1-8-1 996).

5. Sub-section (3) renumbered as sub-section (4) by Act 1 of 1989, sec. 4 (w.e.f. 15-3-1989).

6. Subs. by Act I of 1989, sec. 4, for “in sub-section (1) and sub-section (2)” (w.e.f. 15-3-1999)

7. Inserted By Act 9 of 2003(dt.7-1-2003).

8. Clause “d” Omitted By Act 9 of 2003 (dt. 7-1-2003).

Section 8 A. Disqualification on ground of corrupt practices

¹Disqualification on ground of corrupt practices. (1) The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted, ²[as soon as may be within a period of three months from the date such order takes effect], by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period:

Provided that the period for which any person may be disqualified under this subsection shall in no case exceed six years from the date on which the order made in relation to him under section 99 takes effect.

(2) Any person who stands disqualified under section 8A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), may, if the period of such disqualification has not expired, submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period.

(3) Before giving his decision on any question mentioned in sub-section (1) or on any petition submitted under sub-section (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion.]

——————–

1. Subs. by Act 40 of 1975, sec. 2.

2. Subs. by Act 41 of 2009 w.e.f. 22.12.2009.

Section 9. Disqualification for dismissal for corruption or disloyalty

(1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal.

(2) For the purposes of sub-section (1), a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of a State, has or has not been dismissed for corruption or for disloyalty to the State shall be conclusive proof of that fact:

Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty to the State shall be issued unless all opportunity of being heard has been given to the said person.

Section 9 A. Disqualification for Government contracts, etc

A person shall be disqualified if, and torso long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government.

Explanation. For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part.

Section 10. Disqualification for office under Government company

A person shall be disqualified if and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the capital of which the appropriate Government has not less than twenty-five percent share. .

Section 10 A. Disqualification for failure to lodge account of election expenses

If the Election Commission is satisfied that a person-

(a) Has failed to lodge an account of election expenses, within the time and in the manner required by or under this Act, and

(b) Has no good reason or justification for the failure,

The Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.

Section 11. Removal or reduction or period of disqualification

The Election Commission may, for reasons to be recorded, remove any disqualification under this Chapter ¹[(except under section 8A)] or reduce the period of any such disqualification.

——————–

1. Ins. by Act 40 of 1975, sec. 3.

Section 11 A. Disqualification arising out of conviction and corrupt practices

¹[(1)] If any person, after the commencement of this Act,-

²[***] is convicted of an offence punishable under section 171E or section 171 F of the Indian Penal Code (45 of 1860), or under section 125 or section 135 or clause (a) of subsection (2) of section 136 of this Act,

³[***]

He shall, for a period of six years from the date of the conviction or from the date on which the order takes effect, be disqualified for voting at any election.

⁴(2) Any person disqualified by a decision of the President under sub-section (1) of section 8A for any period shall he disqualified for the same period for voting at any election.

(3) The decision of the President on a petition submitted by any person under subsection (2) of section 8A in respect of any disqualification for being chosen as, and for being, a member of either House of’ Parliament or of the Legislative Assembly or Legislative Council of a State shall, so for as may be, apply in respect of the disqualification for voting at any election incurred by him under clause (b) of sub-section (1) of section IIA of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), as if such decision were a decision in respect of the said disqualification for voting also.]

——————–

1. Section IIA renumbered as subsection (1) of that section by Act 40 of 1975, sec.

2. The brackets and letter “(a)” omitted by Act 38 of 1978, sec. 3 and the Second Schedule.

3. the word “or” omitted by Act 38 of 1978, sec. 3 and the Second Schedule.

4 Clause (b) omitted by Act 40 of 1975, see. 4.

Section 11 B. Removal of disqualifications

The Election Commission may, for reasons to be recorded, remove ¹[any disqualification under subsection (1) of section IIAI.]

——————–

1. Subs. by Act 40 of 1975, sec. 5, for certain words.

Section 12. Notification for biennial election to the Council of States

¹[PART III

NOTIFICATION OF GENERAL ELECTIONS

——————–

1. Subs. by Act 27 of 1956, sec. 7, for Part III (sections 12 to 18).

Section 12. Notification for biennial election to the Council of States.

For the purpose of filling the seats of members of the Council of States retiring on the expiration of their term of office the President shall by one or more notifications published in the Gazette of India on such date or dates as may be recommended by the Election Commission, call upon the elected members of the Legislative Assembly or as the case may be, the members of the electoral college, of each State concerned to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:

Provided that no notification under this section shall be issued more than three months prior to the date on which the term of office of the retiring members is due to expire.

Section 12 A. Notification for election to rill the seat allotted to the State of Sikkim in the Council of States

¹[Notification for election to rill the seat allotted to the State of Sikkim in the Council of States. For the purpose of filling for the first time the seat allotted to the State of Sikkim by the Constitution (Thirty-sixth Amendment) Act, 1975 in the Council of States, the President shall, by notification published in the Gazette of India, on such date as may be recommended by Election Commission, call upon the elected members of the Legislative Assembly of the State of Sikkim to elect a member in accordance with the provisions of this Act and of the rules and orders made thereunder and the election so held shall for all purposes and intent be deemed to have been held under section 12.]

——————–

1. Ins. by Act 10 of 1976, sec. 2 and Sch. (w.e.f. 9.9.1975).

Section 13. Notification for reconstitution of electoral colleges of certain Union territories

Rep. by the Territorial Councils Act, 19-56 (10-3 of 1956), sec. 661

Section 14. Notification for general election to the House of the People

(1) A general election shall be held for the purpose of constituting a new House of the People on the expiration of the duration of the existing House or on its dissolution.

(2) For the said purpose the President shall, by one or more notifications published in the Gazette of India on such date or dates as may be recommended by the Election Commission call upon all Parliamentary constituencies to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:

Provided that where a general election is held otherwise than on the dissolution of the existing House of’ the People, no such notification shall he issued at any time earlier than six months prior to the date on which the duration of that House would expire under the provisions of clause (2) of article 83.

Section 14 A. Notification for electing the representative of the State or Sikkim to the existing House of the People

¹Notification for electing the representative of the State or Sikkim to the existing House of the People. For the purpose of electing a representative of the State of Sikkim to the House of the People, specified in clause (e) of article 371F of the Constitution, the Election Commission shall call upon the members of the Legislative Assembly of the State of Sikkim to elect the representative in accordance with such of the provisions of this Act, and the rules and orders make thereunder, as are applicable to the election of the members of the Council of States.]

——————–

1. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.

Section 15. Notification for general election to a State Legislative Assembly

(1) A general election shall be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution.

(2) For the said purpose, ¹[the Governor or Administrator, as the case may be], ²[* * *] shall by one or more notifications published in the Official Gazette of the State on such date or dales may be recommended by the Election Commission, call upon all Assembly constituencies in the State to elect members in accordance with the provisions of this Act and of the rules and order made thereunder:

Provided that where a general election is held otherwise than on the dissolution of the existing Legislative Assembly, no such notification shall be issued at any time earlier than six months prior to the date on which the duration of that Assembly would expire under the provisions of clause (I) of article 171 ²[***] ³[or under the provisions of section 5 of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be.]

——————–

1. Subs. by Act 20 of 1963, sec. 57 and the Second Schedule for “the Governor”.

2. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.

3. Ins. by Act 20 of 1963, sec. 57 and the Second Schedule.

Section 15 A. Notification for certain elections to Legislative Councils

¹[Notification for certain elections to Legislative Councils. For the purpose of constituting the Legislative Council of the State of Madhya Pradesh under the State Reorganisation Act, 1956 (37 of 1956) and constituting the Legislative Council of the State of Andhra Pradesh under the Legislative Councils Act, 1957 (37 of 1957), the Governor of each of the aforesaid States shall, by one or more notifications published in the Official Gazette of the State on such date or dates as may be recommended by the Election Commission, call upon the members of the Legislative Assembly of the State and all the Council constituencies to elect members in accordance with the provisions of’ this Act and of the rules and orders made thereunder.]

——————–

1. Ins. by Act 37 of 1957, sec. 13.

Section 16. Notification for biennial election to a State Legislative Council

For the purpose of filling the seats of members of the Legislative Council of a State retiring on the expiration of their term of office, the Governor ¹[***] shall, by one or more notifications published in the Official Gazette of the State on such date or dates as may be recommended by the Election Commission call upon the members of the Legislative Assembly of the State and all the Council constituencies concerned to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:

Provided that no notification under this section shall be issued more than three months prior to the date on which the term of office of the retiring members is due to expire.]

——————–

1. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.

Section 19. Definition

In this Part and in Part V, unless the context otherwise requires, “constituency” means ¹[***] a Parliamentary constituency or an Assembly constituency or a Council constituency

——————–

1. Certain words omitted by Act 103 of 1956, sec. 66.

Section 19 A. Delegation of functions of Election Commission

¹Delegation of functions of Election Commission. The functions of the Election Commission under the Constitution, the Representation of the People Act, 1950 (43 of 1950) and this Act or under the rules made thereunder may, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, be performed also by a Deputy Election Commissioner or by the Secretary to the Election Commission.]

——————-

1. Ins. by Act 47 of l966, sec. 21 (w.e.f 14-12-1966).

Section 20. General duties of chief electoral officers

¹[General duties of chief electoral officers. Subject to the superintendence, direction and control of the Election Commission, the chief electoral officer of each State shall supervise the conduct of all elections in the State under this Act.

——————–

1. Subs. by Act 27 of 1956, sec. 9, for sections 20 and 21.

Section 20 A. General duties of district election officer

¹[General duties of district election officer. (1) Subject to the superintendence, direction and control of the chief electoral officer, the district election officer shall co-ordinate and supervise all work in the district or in the area within his jurisdiction in connection with the conduct of all elections to parliament and the Legislature of the State

(2) The district election officer shall also perform such other functions as may be entrusted to him bv the Election Commission and the chief electoral officer.]

——————–

1. Ins. by Act 47 of 1966, sec. 22 (w.e.f 14-12-1966).

Section 20 B. Observers

¹[Observers. (1) The Election Commission may nominate an Observer who shall be an officer of Government to watch the conduct of election or elections in a constituency or a group of constituencies and to perform such other functions as may be entrusted to him by the Election Commission.

(2) The Observer nominated under sub-section (1) shall have the power to direct the retuning officer for the constituency or for any of the constituencies for which he has been nominated, to stop the counting of votes at any time before the declaration of the result or not to declare the result if in the opinion of the Observer booth capturing has taken place at a large number of polling stations or at places fixed for the poll or counting of votes or any ballot papers used at a polling station or at a place fixed for the poll are unlawfully taken out of the custody of the returning officer or are accidentally or intentionally destroyed or lost or are damaged or tampered with to such an extent that the result of the poll at that polling station or place cannot be ascertained.

(3) Where an Observer has directed the returning officer under this section to stop counting of votes or not to declare the result, the Observer shall forthwith report the matter to the Election Commission and thereupon the Election Commission shall, after taking all material circumstances into account, issue appropriate directions under section 58A or section 64A or section 66.

Explanation. For the purposes of sub-section (2) and sub-section (3) “Observer” the shall include a Regional Commissioner or any such officer of the Election Commission as has been assigned under this section the duty of watching the conduct of election or elections in a constituency or group of constituencies by the Commission.]

——————–

1. Ins. by Act 21 of’ 1996, sec. 4 (w.e.f 1-8-1996)

Section 21. Returning officers

For every constituency, for every election to fill a sea or seats in the Council of States and for every election by the members of the Legislative Assembly of a State to fill a seat or seats in the Legislative Council of the State, the Election Commission shall, in consultation with the Government of the State, designate or nominate a returning officer who shall be ¹[an officer of Government or of a local authority]:

Provided that nothing in this section shall prevent the Election Commission from designating or nominating the same person to be the returning officer for more than one constituency.

——————–

1. Subs. by Act 47 of 1966, sec. 23, for “an officer of Government”.

Section 22. Assistant returning officers

(1) The Election Commission may appoint one or more persons to assist any returning officer in the performance of his functions:

Provided that every such person shall be ¹[an officer of Government or of a local authority]

(2) Every assistant returning officer shall, subject to the control of the returning officer, be competent to perform all or any of the functions of the returning officer-.

Provided that no assistant returning officer shall perform any of the functions of the returning officer which relate ³[***] to the scrutiny of nominations ²[***] unless the returning officer is unavoidably prevented from performing the said function

——————–

1. Subs. by Act 47 of 1966, sec. 24, for “an officer of Government”.

2. Certain words omitted by Act 27 of 1956, sec. 10.

3. The words “or to the counting of votes” omitted by Act 27 of 1956, sec. 10.

Section 23. Returning officer to include assistant returning officers performing the functions of the returning officer

References in this Act to the returning officer shall, unless the context otherwise requires, be deemed to include an assistant returning officer performing any function which he is authorized to perform under sub-section (2) of section 22.

Section 24. General duty of the returning officer

It shall be general duty of the returning officer at any election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by this Act and rules or orders made there under

Section 25. Provision of polling stations for constituencies

¹[Provision of polling stations for constituencies. The district election officer shall, with the previous approval of the Election Commission, provide a sufficient number of polling stations for every constituency the whole or greater part of which lies within his jurisdiction, and shall publish, such manner as the Election Commission may direct, a list showing the polling stations so provided and the polling areas or groups of voters for which they have respectively been provided.]

——————–

1. Subs. by Act 47 of 1966, sec. 25, for section 25 (w.e.f. 14-12-1966).

Section 26. Appointment of presiding officers for polling stations

(1) The ¹[district election officer] shall appoint a presiding officer for each polling station and such polling officer or officers as he thinks necessary, but he shall not appoint any person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election:

Provided that if a polling officer is absent from the poll’ station, the presiding officer may appoint any person who is present at the polling station other than a person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election, to be the polling officer during the absence of the former officer, and inform the ¹[district election officer] accordingly:

³[Provided further that nothing in this sub-section shall prevent that ⁴[district election officer] from appointing the same person to be the presiding officer for more than one polling station in the same premises.]

(2) A polling officer shall, if so directed by the presiding officer, perform all or any of the function of a presiding officer under this Act or any rules or orders made thereunder.

(3) If the presiding officer, owing to illness or other unavoidable cause, is obliged to absent himself from the polling station, his functions shall be performed by such polling officer as has been previously authorised by the ⁴[district election officer] to perform such functions during any such absence.

(4) References in this Act to the presiding officer shall, unless the contest otherwise requires, be deemed to include any person performing ally function which he is authorised to perform under subsection (2) or sub-section (3), as the case may be.

⁵[(5) Any reference to a district election officer in section 25 and in this section shall, in relation to a constituency in a Union territory, be construed as a reference to the returning officer for that constituency]

——————–

1. Subs. by Act 47 of 1966, sec. 26, for “returning officer” (w.e.f 14-12-1966).

3. Ins. by Act 27 of 1956, sec. 12.

4. Subs. By Act 47 of 1966, sec 26, for “returning officer” (w.e.f. 14-12-1966)

5. Ins. by Act 47 of 1966, sec. 26 (w.e.f. 14-12-1966).

Section 27. General duty of the presiding officer

It shall be the general duty of the presiding officer at a polling station to keep order thereat and to see that the poll is fairly taken.

Section 28. Duties of a polling officer

It shall be the duty of the polling officers at a polling station to assist the presiding officer for such station in the performance of his frictions.

Section 28 A. Returning officer, presiding officer, etc., deemed to be on deputation to Election Commission

¹[Returning officer, presiding officer, etc., deemed to be on deputation to Election Commission. The returning officer, assistant returning officer, presiding officer, polling officer and an other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.]

——————–

1. Ins. by Act I of 1989, sec. 5 (w.e.f. 15-3-1989).

Section 29. Special provisions in the case of certain elections

(1) The returning officer for an election ¹[***] to fill a seat or seats in the Council of States or for an election by the members of the Legislative Assembly of a State to fill a seat or scats in the Legislative Council of the State shall with the previous approval of the Election Commission, fix the place at which the poll will be taken for such election and shall notify the place so fixed in such manner as the Election Commission may direct.

(2) The returning officer shall preside over such election at the place so fixed and shall appoint such polling officer or officers to assist him as he thinks necessary but he shall not appoint any person who has been employed by or on behalf of, or has been otherwise working for. a candidate in or about the election.

——————–

1. Certain words omitted by Act 27 of 1956, sec. 13.

Section 29 A. Registration with the Election Commission of associations and bodies as political parties

¹[PART IVA

REGISTRATION OF POLITICAL PARTIES

——————–

1. Ins. by Act I of 1989, sec. 6 (w.e.f. 15-6-1989).

Section 29A. Registration with the Election Commission of associations and bodies as political parties

(1) Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of this Part shall make an application to the Election Commission for its registration as a political party for the purposes of this Act.

(2) Every such application shall be made,-

(a) If the association or body is in existence at the commencement of the Representation of the People (Amendment) Act, 1988 (1 of 1989), within sixty days next following such commencement;

(b) If the association or body is formed after such commencement, within thirty days next following the date of its formation.

(3) Every application under subsection (1) shall be signed by the chief executive officer of the association or body (whether such chief executive officer is known as Secretary or by any other designation) and presented to the Secretary to the Commission or sent to such Secretary by registered post.

(4) Every such application shall contain the following particular, namely:-

(a) The name of the association or body;

(b) The State in which its head office is situate;

(c) The address to which letters and other communications meant for it should be sent;

(d) The names of its president, secretary, treasurer and other officer-bearers;

(e) The numerical strength of its members, and if there are categories of its members, the numerical strength in each category;

(f) Whether it has any local units; if so, at what levels;

(g) Whether it is represented by any member or members in either House of Parliament or of any State Legislature; if so, the number of such member or members.

(5) The application under subsection (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.

(6) The Commission may call for such other particulars as it may deem fit from the association or body.

(7) After considering all the particulars as a foresaid in its possession and any other necessary and relevant factors and after giving the representatives of the association or body reasonable opportunity of being heard, the Commission shall decide either to register the association or body as a political party for the purposes of this Part, or not so to register it; and the Commission shall communicate its decision to the association or body:

Provided that no association or body shall be registered as a political party under

This sub-section unless the memorandum or rules and regulations of such association or body conform to the provisions of sub-section (5).

(8) The decision of the Commission shall be final.

(9) After an association or body has been registered as apolitical party as aforesaid, any change in its name, head office, office-bearers, address or in any other material matters shall be communicated to the Commission without delay.

Section 30. Appointment of dates for nominations, etc

¹[Appointment of dates for nominations, etc. As soon as the notification calling upon a constituency to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint-

(a) The last date for making nominations, which shall be the ²[seventh day] after the date of publication of the first mentioned notification or if that day is a public holiday, the next succeeding day which is not a public holiday;

(b) The date for the scrutiny of nominations, which shall be ³[the day immediately following] the last date for making nominations or, if that day is public holiday, the next succeeding day which is not a public holiday;

(c) The last date for the withdrawal of candidatures, which shall be ⁴[the second day] after the date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day that is not a public holiday;

(d) The date or dates on which a poll shall, if necessary, be taken which or the first of which shall be a date not earlier than the ⁵[fourteenth day] after the last date for the withdrawal of candidatures, and

(e) The date before which the election shall be completed.

⁶[***]

——————–

1. Subs. by Act 27 of 1 956, sec. 14, for section 30.

2. Subs. by Act 40 of 1961, sec. 7, for “tenth day” (w.e.f 20-9-1961).

3. Subs. by Act 47 of’ 1966, sec. 27, for “the second day after” (w.e.f 14-12-1966)

4. Subs. by Act 47 of’ 1966, sec. 27, for “the third day” (w.e.f. 14-12-1966)

5. Subs. by Act 21 of 1996, sec. 5 (w.e.f 1-8-1996).

6. Explanation omitted by Act 47 of 1966, sec. 27 (w.e.f 14-12-1966).

Section 31. Public notices of election

On the issue of a notification under section 30 the returning ¹[***] shall give public notice of the intended election in such form and manner as may be prescribed, inviting nominations of candidates for such election and specifying the place at which the nomination papers are to be delivered.

——————–

1. The words “for the constituency” omitted by Act 47 of 1966, sec. 28 (w.e.f 14-12-1966).

Section 32. Nomination of candidates for election

Any person may be nominated as a candidate for election to fill a seat ¹[***] if he is qualified to be chosen to fill that seat under the provisions of Constitution and this Act ²[***] ³[or under the provisions of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be].

——————–

1. The words “in any constituency” omitted by Act 27 of 1956- sec. 15.

2. Certain words ins. by Act 27 of l956, sec 15 and omitted by the Adaptation of Laws (No. 2) Order, 1956.

3. Ins. by Act 20 of’ 1963, sec. 57 and Second Sch

Section 33. Presentation of nomination paper and requirements for a valid nomination

¹[Presentation of nomination paper and requirements for a valid nomination. (1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer between the hours of eleven O’clock in the forenoon and three O’clock in the afternoon deliver to the returning officer at the place specified in the behalf in the notice issued under section 3l a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer-.

²[Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposes being electors of the constituency:

Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday:

Provided also that in the case a local authorities constituency, graduates’ constituency or teachers’ constituency, the reference to “an elector of the constituency as proposer” shall be construed as a reference to ten per cent of the electors of the constituency or ten such electors., whichever is less, as proposes.]

³[(1A) Notwithstanding anything contained in sub-section (1), for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State only constituted under the Constitution), the nomination paper to be delivered to the returning officer shall be in such form and manner as may be prescribed:

Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and-

(a) In the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, also by at least twenty electors of the constituency as proposes and twenty electors of the constituency as scolders;

(b) In the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposes and at least twenty electors of the constituency as seconders;

(c) In the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the constituency as proposer:

Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday]

(2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.

(3) Where the candidate is a person who, having held any office referred to in ⁴[section 9] has been dismissed and a period of five years has not elapsed since the dismissal. such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued ‘in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.

(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper arc the same as those entered in the electoral rolls:

⁵[Provided that no misnomer or inaccurate description or clerical technical or printing error in regard to the name of the candidate or his proposer or any other person., or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper. shall affect the full operation of the electoral roll or the nomination. paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood, and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or In the nomination paper shall be overlooked.]

(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall- unless it has been filed along with the nomination paper, be produced before the return officer at the time of scrutiny.

⁶[(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper :

Provided that not more than four nomination papers shall be presented bv or on behalf of any candidate or accepted by the retuning officer for election in the same constituency

⁷[(7) Notwithstanding, anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election,-

(a) In the case of a general election to the House of the People (whether or not field simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;

(b) In the case of general election to the Legislative Assembly of a State (whether or not hold simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State,.

(c) In the case of a general election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State;

(d) In the case of a biennial at election to the Council of States for filling o or more seats allotted to a State, for filling more than two such seats,

(e) In the case of bye-elections to the House of the People from two or more Parliamentary constituencies which are held simultaneously-from more than two such Parliamentary constituencies-,

(f) In the case of bye-elections to the Legislative Assembly of a State from or more Assembly constituencies which arc held simultaneously, from more than two such Assembly constituencies-,

(g) In the case of bye-elections to the Council of States for filling two or more scats allotted to a State which are held simultaneously, for filling more than two such scats”

(h) In the case of bye-elections to the Legislative Council of a State having such Council from two or more Council constituencies, which are held simultaneously, from more than two such Council constituencies.

Explanation. For the purpose of this sub-section, two or more bye-elections shall be deemed to be held simultaneously where the notification calling such bye-elections are issued by the Election Commission under sections 147, 149, 150 or, as the case may be, 151 on the same date.

——————–

1. Subs. by Act 27 of 1956, sec. 16, for section 3.

2. Subs. by Act 21 of 1996, sec. 6 (w.e.f. 1-8-1996).

3. Ins. by Act 10 of l976, sec. 2 and Sch. (w.e.f. 9-9-1975).

4. Subs. by Act 38 of 1978, sec. 3 and the Second Schedule, for “Clause (f) of section 7”.

5. Subs. by Act 47 of 966, sec. 29, for the proviso (w.e.f.14-12-1966).

6. Subs. by Act 40 of’ 1961, sec. 8, for subjection (6) (w.e.f. 20-9-1961)

7. Ins. by Act 21 of 1996, sec. 6 (w.e.f’, 1-8-1996).

Section 34. Deposits

¹[(1) A candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited, -

(a) In the case of all election from a Parliamentary constituency, ³[a sum of twenty-five thousand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of twelve thousand five hundred rupees]; and

(b) In the case of an election from all Assembly or Council constituency, ⁴[a sum of ten thousand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of five thousand rupees]-.

Provided that where a candidate has been nominated by more than one nomination paper for election in the same constituency, not more than one deposit shall be required of him under this sub-section.]

(2) Any sum required to be deposited under sub-section (1) shall not be deemed to have been deposited under that subsection unless at the time of deliver of the nomination paper ²[under subsection (1) or, as the case may be, sub-section (IA) of section 33] the candidate has either deposited or caused to be deposited that sum with the returning officer in cash or enclosed with the nomination paper a receipt showing that the said sum has been deposited by him or on his behalf in the Reserve Bank of India or in a Government Treasury

——————–

1. Sub-section (3) was subs. bv Act 27 of 1956, sec. 17 and again subs. by Act 21 of 1996, sec. 7 (w.e.f. 1-8-1996).

2. Subs. by Act 10 of 1976, sec. 2 and Sch., for certain words (w.e.f. 9-9-1 975).

3. Subs. by Act No. 41 of 2009 w.e.f. 22.12.2009.

4. Subs. by Act No. 41 of 2009 w.e.f. 22.12.2009.

Section 35. Notice of nominations and the time and place for their scrutiny

The returning officer shall, on receiving the nomination paper ¹[under subsection (1) or, as the case may, be, sub-section (I A) of section 33], inform the person or persons delivering the same of the date. time and place fixed for the scrutiny of nominations and shall enter on the nomination paper its serial number and shall sign thereon a certificate stating the date on which and the hour at which the nomination paper has been delivered to him, and shall as soon as may be thereafter, cause to be affixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper., both of the candidate and or ²[the proposer].

——————–

1. Subs. by Act 27 of 1 956, sec. 18, for certain words.

2. The words “and one seconded” omitted by, Act 27 of l956, sec. 19.

Section 36. Scrutiny of nominations

(1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents one proposer ¹[***] of each candidate and one other person duly a in writing by each candidate but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.

(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary ²[reject] any nomination on any of the following grounds

³ [(a) ⁴[that on the date fixed for the scrutiny of nominations the candidate] either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely: -

Articles 84, 102, 173 and 191,] ⁵[* * *]

⁶[Part II of this s Act and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963)] ⁷[***]; or

(b) That there has been a failure to comply with any of the provisions of section 33 or section 34; or

(c) That the signature of the candidate or the proposer on the nomination paper is riot genuine.

(3) Nothing contained in ⁸[clause (b) or clause (c)] of sub-section (2) shall be deemed to authorise the ⁹[rejection] of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.

(4) The returning officer shall not reject any nomination paper on the ground of any ¹⁰[***] defect which is not of a substantial character.

(5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:

Provided that in case ¹¹[an objection is raised by the returning officer or is made by Any other person] the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.

(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.

¹²[(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elect or for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950).

(8) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.]

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1. The words “and one seconded” omitted by, Act 27 of l956, sec. 19.

2. Subs. by Act 27 of 1 956 sec. 19, for “refuse”.

3. Subs. by Act 27 of 1956, sec. 19, for clause (a) to (e).

4. Subs. by, Act 40 of 1961, sec. 9, for “that the candidate” (w.e.f. 20-9-1961).

5. The word “and” ins. by the Adaptation of Laws (No. 2) Order, 1956 and omitted by Act 20 of 1963, sec. 57 and the First Sch.

6. Subs. By Act of 1963, sec 57 and the Second Sch, for certain words.

7. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.

8. Subs. by Act 27 of 1956, sec. 19, for “clause (c), clause (d) or clause (e).

9. Subs. by Act 27 of 1956, sec. 19, for “refusal”.

10. The word “technical” omitted by Act 27 of 1956, sec. 19.

11. Subs. by Act 40 of 1961, sec. 9, for “an objection is made” (w.e.f 20-9-196 ).

12. Subs. by Act 27 of 1956, sec. 19, for sub-section (7).

Section 37. Withdrawal of candidature

(1) Any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed and shall be subscribed by him and delivered before three O’clock in the afternoon on the day fixed under clause (c) of section 30 to the returning officer either by such candidate in person or by his proposer, ¹[***] or election agent who has been authorised in this behalf in writing by such candidate.

¹[* * *]

(2) No person who has given a notice or withdrawal of his candidature under subsection (1) shall be allowed to cancel the notice.

²[(3) The returning officer shall, on being satisfied as to the genuineness of a notice or withdrawal and the identity of the person delivering under sub-section (1), cause the notice to be affixed in some conspicuous place in his office.]

——————–

1. The word “seconded” and the proviso omitted by Act 27 of 1956, sec. 20.

2. Subs. by Act 40 of’ 1961, sec. 10, for sub-section (3) (w.e.f 20-9-1961)

Section 38. Publication of list of contesting candidates

¹[Publication of list of contesting candidates. (1) Immediately after the expiry of the period within which candidatures may be withdrawn under sub-section (1) of section 37, the returning officer shall prepare and publish in such form and manner as may be prescribed a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period.

²[(2) For the purpose of listing the -names under sub-section (1), the candidates shall be classified as follows, namely: -

(i) Candidates of recognised political parties;

(ii) Candidates of registered political parties other than those mentioned in clause

(iii) Other candidates.

(3) The categories mentioned in sub-section (2) shall be arranged in the order specified therein and the names of candidates in each category shall be arranged in alphabetical order and the addresses of the contesting candidates as given in the nomination papers together with such other particulars as may be prescribed].]

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1. Subs. by Act 27 of 1956, sec. 21, for section 38.

2. Subs. by Act 21 of 1996, sec, 8, for sub-section (2) (w.e.f 1-8-1996).

¹[Nomination of candidates at other elections. (1) As soon as the notification calling upon the elected members or the members of the Legislative Assembly of a State or the members of the electoral college of a ²[Union territory] to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint-

(a) The last date for making nominations, which shall be the ³[seventh day] after the date of publication of the first-mentioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday;

(b) The date for the scrutiny of nominations, which shall be ⁴[the day immediately following] the last date for making nominations or if that day is a public holiday, the next succeeding day -which is not a public holiday;

(c) The last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of nominations or if that day is a public holiday, the next succeeding day which is not a public holiday-,

(d) The date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the seventh day after the last date for the withdrawal of candidatures; and

(e) The date before which the election shall be completed.

⁵[***]

(2) The provisions of sections 31 to 38, excluding subsections (2) and (5) of section 33 and ⁶[clause (a) of subsection (1) of section 34], shall apply in relation to any such election as they apply in relation to an election in any constituency:

Provided that-

(a) Any references in the said provisions to the electoral roll of the constituency shall unless the context otherwise requires, be construed, in the case of an election by the member or the elected members of the Legislative Assembly of the State, as references to the list of members of elected members, as the case may be, of that Assembly maintained under sub-section (1) of section 152, and in the case of an election by the members of the electoral college of a ⁷[Union territory], as references to the list of members of such electoral college maintained under subsection (2) of that section;

⁸[(aa) The reference in the opening paragraph of subsection (1) of section 33 to “an elect or of the constituency as proposer shall be construed as a reference to “ten percent. of the elected members or of the members of the Legislative Assembly of a State or of the members of the electoral college of a Union territory, as the case may be, or ten members concerned, whichever is less, as proposers”:

Provided that where as a result of a calculation of the percentage referred to in this clause, the number of members arrived at is a friction and if the fraction so arrived at is more than one-half it shall be counted as one, and if the fraction so arrived at is less than one half it shall be ignored;]

⁹[¹⁰[(ab) In the case of a election to the Legislative Council pf a State by the members pf the Legislative Assembly of that State, clause (a) of sub-section (2) of section 36 shall be construed as including a reference to sub-clause (d) of clause (3) of article 171;]

(b) Any references in the said provisions to section 30 shall be construed as references to subsection (1) of this section; and

(c) At the time of presenting the nomination paper, the returning officer may require the person presenting the same to produce either a copy of the electoral roll, or part of the electoral roll, in which the name of the candidate is included or the certified copy of the relevant entries in such roll.]

——————–

1. Subs. by Act 27 of 1956, sec. 22, for section 39.

2. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “Part C State”.

3. Subs. by Act 40 of 1961, sec. 11, for “tenth day” (w.e.f. 20-9-196 1).

4. Subs. by Act 47 of 1966, sec. 30, for “the second day after” (w.e.f 14-12-1966).

5. Explanation omitted by Act 47 of 1966, sec. 30 (w.e.f. 14-12-1966)

6. Subs. by Act 58 of 1958, sec. 19, for “section 34”.

7. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “Part C State”.

8. Ins. by Act I of 1989, sec. 8 (w.e.f. 1-4-1989).

9. Ins. by Act 47 of 1966, sec. 30 (w.e.f. 14-12-1966).

10. Clause (aa) relettered as clause (ab) by Act I of 1989, sec. 8 (w.e.f. 1-4-1989).

Section 40. Election agents

¹[Election agents. A candidate at an election may appoint in the prescribed manner any one person other than himself to be his election agent and when any such appointment is made, notice of the appointment shall be given in the prescribed manner to the returning officer.]

——————–

1. Subs. by Act 27 of 1956, sec. 23, for section 40.

Section 41. Disqualification for being an election agent

¹[Disqualification for being an election agent. Any person who is for the time being disqualified under the Constitution or under this Act for being a member of either House of Parliament or the House or either House of the Legislature of a State or for voting at elections, shall, so long as the disqualification subsists, also be disqualified for being an election agent at any election.]

——————–

1. Subs. by Act 47 of 1966, sec. 31, for section 41 (w.e.f. 14-12-1966).

Section 42. Revocation of the appointment, or death, of an election agent

(1) Any revocation of the appointment of an election agent, ¹[***] shall be signed by the candidate, and shall operate from the date on which it is lodged with the returning officer.

²[(2) In the event of such a revocation or of the death of an election agent whether that event occurs before or during the election, or after the election but before the account of the candidate’s election expenses has been lodged in accordance with the provisions of section 78, the candidate may appoint in the prescribed manner another person to be his election agent and when such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer.]

——————–

1. Certain words omitted by Act 27 of 1956 sec. 24.

2. Subs. by Act 27 of 1956, sec. 24, for sub-section (2).

Section 43. Effect of default in appointment of election agent under section 42

Rep. by the Representation of the People (Second Amendment) Act, 19-56 (27 of 1956), sec. 25

Section 44. Duty of the election agent to keep accounts

Rep. by the Representation of the People (Second Amendment Act, 1956 (27 of 19-56), sec. 25

Section 45. Functions of election agents

¹Functions of election agents. An election agent may perform such functions in connection with the election as are authorised by or under this Act to be performed by an election agent.]

——————–

1. Subs. by Act 27 of 1956, sec. 26, for section 45.

Section 46. Appointment of polling agents

¹[Appointment of polling agents. A contesting candidate or his election agent may appoint in the prescribed manner such number of agents and relief agents as may be prescribed to act as polling agents of such candidate at each polling station provided under section 25 or at the place fixed under subsection (1) of section 29 for the poll.]

——————–

1. Subs. by Act 27 of 1056, sec. 27, for section 46.

Section 47. Appointment or counting agents

¹[Appointment or counting agents. A contesting candidate or his election agent may appoint in the prescribed manner one or more persons, but not exceeding such number as may be prescribed, to the present as his counting agent or agents at the counting of votes, and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer.]

——————–

1. Subs. by Act 27 of 1956, sec. 28, for section 47.

Section 48. Revocation of the appointment or death, or a polling agent or counting agent

(1) Any revocation of the appointment of a polling agent shall be signed by the candidate or his election agent and shall operate from the date on which it is lodged with such officer as may be prescribed, and in the event of such a revocation or of the death of a polling agent before the close of the poll, the candidate or his election agent may appoint in the prescribed manner another polling agent at any time before the poll is closed and shall forthwith give notice of such appointment in the prescribed manner to such officer as may be prescribed.

(2) Any revocation of the appointment of a counting agent shall be signed by the candidate or his election agent and shall operate from the date on which it is lodged with the returning officer, and in the event of such revocation or of the death of a counting agent before the commencement of the counting of votes, the candidate or his election agent may appoint in the prescribed manner another counting agent at any time before the counting of votes is commenced and shall forthwith give notice of such appointment in the prescribed manner to the returning officer.

Section 49. Functions of polling agents and counting agents

(1) A polling agent may perform such functions in connection with the poll as are authorised by or under this Act, to be performed by a polling agent.

(2) A counting agent may perform such functions in connection with the counting of votes as are authorised by or under this Act to be performed by a counting agent.

Section 50. Attendance of a contesting candidate or his election agent at polling stations, and performance by him of the functions of a polling agent or counting agent

(1) At every election where a poll is taken, each ¹[contesting candidate] at such election and his election agent shall have a right to be present at any polling station provided under section 25 for the taking of the poll or at the place fixed under sub-section (1) of section 29 for the poll.

(2) A ¹[contesting candidate] or his election agent may himself do any act or thing which any polling agent or the counting agent of such ¹[contesting candidate] if appointed, would have been authorised by or under this Act to do, or may assist any polling agent or the counting agent of such ¹[contesting candidate] in doing any such act or thing.

——————–

1. Subs. by Act 58 of 1958, sec. 20, for “candidate”.

Section 51. Non-attendance of polling or counting agents

Where any act or thing is required or authorised by or under this Act to be done in the presence of the polling or counting agents, the non-attendance of any such agent or agents at the time and place appointed for the purpose shall not, if the act or thing is otherwise duly done, invalidate the act or thing done.

Section 52. Death of a candidate of a recognised political party before poll

¹[Death of a candidate of a recognised political party before poll. (1) If a candidate set up by a recognised political party, -

(a) Dies at any time after 11.00 A.M. on the last date for making nominations and his nomination is found valid on scrutiny under section 36, or

(b) Whose nomination has been found valid on scrutiny under section 36 and who has not withdrawn his candidature under section 37, dies,

And in either case, a report of his death is received at any time before the publication of the list of contesting candidates under section 38; or

(c) Dies as a contesting candidate and a report of his death is received before the commencement of the poll,

The returning officer shall, upon being satisfied about the fact of the death of the candidate, by order, announce an adjournment of the poll to a date to be notified later and report the fact to the Election Commission and also to the appropriate authority:

Provided that no order for adjourning a poll should be made in a case referred to in clause (a) except after the scrutiny of all the nominations including the nomination of the deceased candidate.

(2) The Election Commission shall, on the receipt of a report from the returning officer under sub-section (1), call upon the recognised political party, whose candidate has died, to nominate another candidate for the said poll within seven days of issue of such notice to such recognised political party and the provisions of sections 30 to 37 shall, so far as may be, apply in relation to such nomination as they would apply to other nominations:

Provided that no person -who has given a notice of withdrawal of his candidature under sub-section (1) of section 37 before the adjournment of the poll shall be ineligible for being nominated as a candidate for the election after such adjournment.

(3) Where a list of contesting candidates had been published under section 38 before the adjournment of the poll under subsection (1), the returning officer shall again prepare and publish a fresh list of contesting candidates under that section so as to include the name of the candidate who has been validly nominated under sub-section (2).

Explanation For the purposes of this section, sections 33 and 3 8, “recognised political party”, means apolitical party recognised by the Election Commission under the Election Symbols (Reservation and Allotment) Order, 1968.]

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1. Section 52 was subs. by Act 2 of 1992 , sec. 2 and again subs. by Act 21 of 1996, sec. 9 (w.e.f 1-8-1996).

Section 53. Procedure in contested and uncontested elections

¹[(1) If the number of contesting candidates is more than the number of seats to be filled. a poll shall be taken.]

(2) If the number of such candidates is equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected to fill those seats.

(3) If the number of such candidates is less than the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be elected and the ²[Election Commission] shall by notification in the Official Gazette call upon the constituency or the elected members or the members of the State Legislative Assembly or the members of the electoral college concerned ³[* * *] as the case may be, to elect a person or persons to fill the remaining seat or seats ⁴[***] :

Provided that where the constituency or the elected members or the members of the State Legislative assembly or the members of the electoral college ³[***] having already been called upon under this subsection, has or have failed to elect a person or the requisite member of persons, as the case may be, to rill the vacancy or vacancies, the ²[Election Commission shall not be bound to call again upon the constituency, or such members to elect a person or persons ⁵[until it is satisfied that if called upon again, there will be no such failure on the part of the constituency of such members].

——————–

1. Subs. by Act 27 1956, sec. 30, for sub-section (1).

2. Subs. try Act 27 (if 1956, sec. 30, for “appropriate authority”.

3. Certain words omitted by Act 49 of 1951, sec. 44 and the Fifth Schedule.

4. Certain words omitted by Act 27 or 1956, sec. 30.

5. Subs. by Act 27 of 1956, sec. 30, for., until such date as the Election Commission may specify in this behalf’.

Section 54. Special procedure at elections in constituencies where seats are reserved for Scheduled Caste or Scheduled Tribes

Rep. by there Representation of the people (Amendment) Act, 1961 (40 of 1961), sec. 12 (w.e.f 20-9-1961)

Section 55. Eligibility of members of Scheduled castes or Scheduled Tribes to hold seats not reserved for those castes or tribes

For the avoidance of doubt it is hereby declared that a member of the Scheduled Castes or of the Scheduled Tribes shall not be disqualified to hold a seat not reserved for member, of those castes or tribes, if lie is otherwise qualified to hold such seats under the Constitution and this Act ¹[or under the Government of Union Territories Act, 1963 (120 of 1963), as the case may be.]

——————–

1. Ins. by Act 20 of 1063, sec. 57 and the Second Schedule. The words “or under the Government of Part (‘ States Act, 1951 (40 of 195 1), as the case may be” ins. by Act 27 of 1956, sec. 32, and omitted by the Adaptation of Laws (No. 2) Order, 1956.

Section 55 A. Retirement from contest at elections in Parliamentary and Assembly Constituencies

¹[Retirement from contest at elections in Parliamentary and Assembly Constituencies. Rep. by the Representation of the People (Amendment) Act, 1958 (58 of 1958, sec. 22

——————–

1. Ins. by Act 27 of 1956, sec. 33,

Section 56. Fixing time for poll

The ¹[Election Commission] shall fix the hours during which the poll will be taken; and the hours so fixed shall be published in such manner as may be prescribed:

Provided that the total period allotted on any one day for polling at in election and Parliamentary or Assembly constituency shall not be less than eight hours.

——————–

1. Subs. by Act 27 of 1956, sec. 34, for Appropriate authority”

Section 57. Adjournment of poll in emergencies

(1) If at an election the proceedings at any polling station provided under section 25 or at the place fixed under subsection (1) of’ section 29 for the poll are interrupted or obstructed by any riot or open violence, or if at an election it is not possible to take the poll it any polling station or such place on account of any natural calamity, or any other sufficient cause the presiding officer for such polling station or the returning officer presiding over such place, as the case may be, shall a Bounce an adjournment of the poll to a date to be notified later, and where the poll is so adjourned by a presiding officer, he shall forthwith inform the returning officer concerned.

(2) Whenever a poll is adjourned under subsection (1), the returning officer shall immediately report the circumstances to the appropriate authority and the Election Commission and shall, as soon as may be, with the previous approval of the Election Commission appoint the day on which the poll shall recommence, and fix the polling station or place at which, and the hours during which, the poll will be taken, and shall not count the votes cast at such election until such adjourned poll shall have been completed.

(3) In every such case as aforesaid; the returning officer shall notify in such manner as the Election Commission may direct the date, place and hours of polling fixed under subsection (2).

Section 58. Fresh poll in the case of destruction, etc., of ballot boxes

¹[Fresh poll in the case of destruction, etc., of ballot boxes. (1) If at any election, -

(a) Any ballot box used at a polling station or at a place fixed for the poll is unlawfully taken out of the custody of the presiding officer or the returning officer, or is accidentally or intentionally destroyed or lost, or is damaged or tampered with, to such an extent, that the result of the poll at the polling station or place cannot be ascertained; or

²[(aa) Any voting machine develops a mechanical failure during the course of the recording of votes; or]

(b) Any such error or irregularity in procedure as is likely to vitiate the poll is committed at a polling station or at a place fixed for the poll,

The returning officer shall forthwith report the matter to the Election Commission.

(2) Thereupon the Election Commission shall, after taking all material circumstances into account; either-

(a) Declare the poll at that polling station or place to be void, appoint a day, and fix the hours, for taking a fresh poll at that polling station or place and notify the day so appointed and the hours so fixed in such manner as it may deem fit, or

(b) If satisfied that the result of a fresh poll at that polling station or place will not in anyway, affect the result of the election or that ³[the mechanical failure of the voting machine or] the error or irregularity in procedure is not material, issue such directions to the returning officer as it may deem proper for the further conduct and completion of the election.

(3) The provisions of this Act and of any rules or orders made thereunder shall apply to every such fresh poll as they apply to the original poll.]

——————–

1. Sub. by Act 40 or 1961, sec. 13, for section 58 (w.e.f. 20-9-1961).

2. Ins. by Act 1 of 1989, sec. 9 (w.e.f. 15-3-1989)

3. Ins. by Act I of 1989, sec. 9 (w.e.f’. 15-3-1989)

Section 58 A. Adjournment of poll or countermanding of election on the ground of booth capturing

¹[Adjournment of poll or countermanding of election on the ground of booth capturing. (1) If at any election, -

(a) Booth capturing has taken place at a polling station or at a place fixed for the poll (hereafter in this section referred to as a place) in such a manner that the result of the poll at that polling station or place cannot be ascertained; or

(b) Booth capturing takes place in any place for counting of votes in such a manner that the result of the counting at that place cannot be ascertained,

The returning officer shall forthwith report the matter to the Election Commission.

(2) The Election Commission shall, on the receipt of a report from the returning officer under subsection (1) and after taking all material circumstances into account, either, -

(a) Declare that the poll at that polling station or place be void, appoint a day, and fix the hours, for taking fresh poll at that polling station or place and notify the date so appointed and hours so fixed in such manner as it may deem fit; or

(b) If satisfied that in view of the large number of polling stations or places involved in booth capturing the result of the election is likely to be affected, or that booth capturing had affected counting of votes in such a manner as to affect the result of the election, countermand the election in that constituency.

Explanation- In this section, “booth capturing” shall have the same meaning as in section 135A.]

——————–

1. Ins. by Act 1 of 1989, sec. 10 (w.e.f. 15-3-1989).

Section 59. Manner of voting at elections

At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed, and no votes shall be received by proxy.

Section 60. Special procedures for voting by certain classes of persons

Without prejudice to the generality of the provisions contained in section 59, provision may be made by rules made under this Act for enabling, -

(a) Any of the following persons to give his vote by postal ballot, and not in any other manner, at an election in a constituency where a poll is taken, namely:

¹[(i) Any person to whom the provisions of sub-section (3) of section 20 of the Representation of the People Act, 1950 (43 of 1950) apply;

(ii) The wife of any such person as is referred to in sub-clause (i) to whom the provisions of sub-section (6) of the said section 20 apply;]

(b) Any person subjected to preventive detention under any law for the time being in force to give his vote by postal ballot, and not in any other manner, at an election in a constituency where a poll is taken, subject to the fulfilment of such requirements as may be specified in those rules.

²[(c) Any person belonging to a class of persons notified by the Election Commission in consultation with the Government to give his vote by postal ballot, and not in any other manner, at an election in a constituency where a poll is taken subject to the fulfilment of such requirements as may be specified in those rules.]

——————–

1. Subs. by Act 47 of 1966, sec. 33, for sub-clauses (i), (iii) and (iv). Sub-clause (ii) was omitted by Act 58 of 1959, sec. 24.

2. Ins. by Act 30 of 1999, sec. 2 (w.e.f. 21-6-1999).

Section 61. Special procedure for preventing personation of electors

¹[Special procedure for preventing personation of electors. With a view to preventing personation of electors provision may be made by rules made under this Act: -

(a) For the making with indelible ink of the thumb or any other finger of every elector who applies for a ballot paper or ballot papers for the purpose of voting at a polling station before delivery of such paper or papers to him;

(b) For the production before the presiding officer or a polling officer of a polling station by every such elector as aforesaid of the identity card before the delivery of a ballot paper or ballot papers to him if under rules made in that behalf under the Representation of the People Act, 1950 (43 of 1950), electors of the constituency in which the polling station is situated have been supplied with identity cards with or without their respecting photographs attached thereto; and

(c) For prohibiting the delivery of any ballot paper to any person for voting, at a polling station if at the time such person applies for such paper he has already such a mark on his thumb or any other finger or does not produce on demand his identity card before the presiding officer or a polling officer of the poling station].

——————-

1. Subs. by Act 58 of 1958, sec. 25, for section 61.

Section 61 A. Voting machines at elections

¹[Voting machines at elections. Notwithstanding anything contained in this Act or the rules made thereunder, the giving and recording of votes by voting machines in such manner as may be prescribed, may be adopted in such constituency or constituencies as the Election Commission may, having regard to the circumstances of each case, specify.

Explanation For the purpose of this section, “voting machine” means any machine or apparatus whether operated electronically or otherwise used for giving or recording of votes and any reference to a ballot box or ballot paper in this Act or the rules made thereunder shall, save as otherwise provided, be construed as including a reference to such voting machine wherever such voting machine is used at any election.]

——————–

1. Ins. by Act 1 of 1989, sec. 11 (w.e.f 15-3-1989).

Section 62. Right to vote

(1) No person who is not, and except as expressly provided by the Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.

(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950).

(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.

(4) No person shall at any election vote in the same constituency more than once, not withstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void.

(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of’ the police:

Provided that nothing in this subsection shall apply to a person subjected to preventive detention under any law for the time being in force.

Section 63. Method of voting

Rep. By the Representation of the People (Amendment) Act, 1961 (40 of 1961), sec. 14 (w.e.f. 20-9-1961)

Section 64. Counting or votes

At every election where a poll is taken, votes shall be counted by or under the ¹[supervision and direction] of, the returning officer, and each ²[contesting candidate], his election agent and his ³[counting agents], shall have a tight to be present at the time of counting.

——————–

1. Subs. by Act 27 of 1956, see. 36, for “supervision”.

2. Subs. by Act 58 of 1958 sec. 26, for “candidate”.

3. Subs. by Act 27 of 1956, sec. 36, for “counting agent”.

Section 64 A. Destruction, loss, etc., or ballot papers at the time of counting

¹[Destruction, loss, etc., or ballot papers at the time of counting. (1) If at any time before the counting of votes is completed any ballot papers used at a polling station or at a place fixed for the poll are unlawfully taken out of the custody of the returning officer or are accidentally or intentionally destroyed or lost or are damaged or tampered with, to such an extent that the result of the poll at that polling station or place cannot be ascertained, the returning officer shall forthwith report the matter to the Election Commission.

(2) Thereupon, the Election Commission shall, after taking all material

circumstances into account, either-

(a) Direct that the counting of votes shall be stopped, declare the poll at that polling station or place to be void, appoint a day, and fix the hours, for taking a fresh poll at that polling station or place and notify the date so appointed and hours so fixed in such manner as it may deem fit, or

(b) If satisfied that the result of a fresh poll at that polling station or place will not in any way, affect the result of the election, issue such directions to the returning officer as it may deem proper for the resumption and completion of the counting and for the further conduct and completion of the election in relation to which the votes have been counted.

(3) The provisions of this Act and of any rules or orders made thereunder shall apply to every such fresh poll as the apply to tire original poll.]

——————–

1. Ins. by Act 47 of 1966, sec. 34, (w.e.f. 14-12-1966).

Section 65. Equality of votes

If after the counting of the votes is completed, an equality of votes is found to exist between any candidates, and the addition of one vote will entitle any of those candidates to be declared elected, the returning officer shall forthwith decide between those candidates by lot, and proceed as if the candidate on whom the lot falls had received an additional vote.

Section 66. Declaration of results

When the counting of the votes has been completed, the returning officer ¹[shall, in tire absence of any direction by the Election Commission to the contrary, forthwith declare] the result of the election in the manner provided by this Act or the rules trade thereunder

——————–

1. Subs. By Act 47 of 1966, sec. 35, for “shall forthwith declare” (w.e.f. 14-12-1966)

Section 67. Report of the result

As soon as may be after the result of all election has been declared, the returning officer shall report the result to the appropriate authority and the Election Commission, and in the case of air election to a House of Parliament or of the Legislature of’ a State also to the Secretary of that House, and the appropriate authority shall cause to he published in file Official Gazelle the declarations containing the names of tire elected candidates.

Section 67 A. Date of election of candidate

¹[Date of election of candidate. For the purposes of this Act, file date on which candidate is declared by the returning officer under the provisions of section 53, ²[***], ³[* * *], or section 66, to be elected to a House of Parliament or of the Legislature of a State shall be the date of election of that candidate.

——————–

1. Ins. By Act 27 of 1956, sec. 37

2. The word and figures “section 54” omitted by Act 40 of’ 1961, sec. 15 (w.e.f. 20-9-1961).

3. The word, figures and letter “section 55A” omitted by Act 58 or 1958, sec. 27.

Section 68. Vacation of seats when elected to both Houses or Parliament

(1) Any person who is chosen member of both the Houses of the People and the Council of States and who has not taken his seat in either House relay, by notice in writing signed by him and delivered to the Secretary to the Election Commission ¹[within ten days from the date, or the liter of the dates, on which lie is so chosen, intimate in which of the Houses he wishes to serve, and thereupon, his scat in the House in which he does not wish to serve shall become vacant.

(2) In default of such intimation within the aforesaid period, his seat in the Council of States shall, at the expiration of that period become vacant.

(3) Any intimation given under subsection (1) shall be final and irrevocable.

²[(4) For the purposes of this section and of section 69, the date on which a person is chosen to be a member of either House of Parliament shall be in the case of an elected member, the date of his election and in the case of a nominated member, the date of first publication in the Gazette of India of his nomination.]

——————–

1. Subs. By Act 27 of 1956, sec. 38, for certain words.

2. Ins. By Act 27 of’ 1956, sec. 38

Section 69. Vacation of seats by pet-sons already members of one House on election to other House of Parliament

(1) If a person who is already a member of the House of the People and has taken his seat in such House is chosen a member of the Council of States, his seat in the House of the People shall ¹[on the date on which he is so chosen], become vacant.

(2) If a person who is already a member of the Council of States and has taken his seat in such Council is chosen a member of the House of the People, his seat in the Council of States shall ¹[on the date on which he is so chosen], become vacant.

——————–

1. Sub. By Act 27 of 1056, sec. 39, for certain words.

Section 70. Election to more than one seat in either House of Parliament or in the House or either- House of the Legislature of a State

If a person is elected to more than one seat in either House of Parliament or in the House or either House of the Legislature of a State, then, unless within the prescribed time he resigns all but one of the seats ¹[by writing under his hand addressed to the Speaker or Chairman, as the case may be, or to such other authority or officer as may be prescribed], all the seats shall become vacant.

——————–

1. Ins. By Act 27 of’ 1956, see. 40.

Section 71. Publication results of elections to the Council of States and of names of persons nominated by the President

¹[Publication results of elections to the Council of States and of names of persons nominated by the President. After the elections held in any year in pursuance of the notifications issued under section 12, there shall be notified by the appropriate authority in the Official Gazette the names of members elected by the elected members of the Legislative Assemblies of the States and by the members of the electoral colleges for the various ²[Union] territories at the said elections together with the names of any persons nominated by the President to the Council of States under sub-clause (a) of clause (1) of article 80 or under any other provisions.

——————–

1. Sub by Act 27 of’ 1956, sec. 41, for sections 71 to 75.

2. Sub. By the Adaptation of Laws (No. 2) Order, 1956, for “Part C States”

Section 72. Publication or results of elections for the reconstitution of electoral colleges for certain Union territories

Rep. by the Territorial Councils Act, 1956 (103 of 1956), sec. 66

Section 73. Publication of results of general elections to the House of the People and the State Legislative Assemblies

Where a general election is held for the purpose of constituting a new House of the People or a new State Legislative Assembly, there shall be notified by ¹[the Election Commission] in the Official Gazette, as soon as may be after ²[the results of the elections in in the constituencies] other than these in which the poll could not be taken for any reason on the date originally fixed under clause (d) of section 30 or for which the time for completion of the election has been extended under the provisions of section 53 have been declared by the returning officer under the provisions of section 53 or, as the case may be section 66, the names of the members elected for those constituencies] ³[* ** ] and upon the issue of such notification that House or Assembly shall be deemed to be duly constituted:

Provided that the issue of such notification such not be deemed

⁴[(a) To preclude-

(i) The taking of the poll and the completion of the election in any Parliamentary or Assembly constituency or constituencies in which the poll could not be taken for any reason on the date originally fixed under clause (d) of section 30; or

(ii) The completion of the election in any Parliamentary or Assembly constituency or constituencies for which time has been extended under the provisions of section 153; or]

(b) To affect the duration of the House of the People or the State Legislative Assembly, if any, functioning immediately before the issue of the said notifications

——————–

1. Subs. by Act 40 of 1961, sec. 16, for “the appropriate authority” (w.e.f. 20-9-1961).

2. Subs. by Act 10 of 1967, sec. 2, for certain words.

3. Certain words omitted by Act 40 of 1961, sec. 16, (w.e.f. 20-9-1961).

4. Subs by Act 10 of 1967, sec. 2, for clause (a).

Section 73 A. Special provision as to certain elections

¹[Special provision as to certain elections. Notwithstanding anything containedinsection73 or in any other provision of this Act, with respect to the general election for the purpose of constituting a New House of the People upon dissolution of’ the Ninth House of the People,-

(a) The notification under section 73 may be issued without taking into account the Parliamentary constituencies in the State of Jammu and Kashmir; and

(b) The Election Commission may take the steps in rotation to election from the Parliamentary constituencies in the State of Jammu and Kashmir; separately and in such timing and on such date or dates is it may deem appropriate.]

——————–

1. Subs. by Act 31 of 1991, see. 2, for sections 73A and 73AA (w.e.f. 18-4-1991)

Section 74. Publication of results of elections to the State Legislative Councils and of names of persons nominated to such Councils

After the elections held ¹[in pursuance of the notifications issued under section 15A or ] in any year in pursuance of the notifications issued under section 16, there shall he notified by the appropriate authority in the Official Gazette the names of the member elected for the elected for the various Council constituencies and by the member of the Legislative Assembly of the State at the said elections together with the names of any persons nominated by the Governor ²[***] under sub-clause (e) of clause (3) of article 171.]

——————–

1. Ins. by Act 37 of 1957, sec. 13.

2. The words “or Rajpramukh, as the case fairly be” omitted by the Adaptation of Laws (No. 2) Order, 1956

Section 76. Application of Chapter

¹[Application of Chapter. This Chapter shall apply only to the elections to the House of the People and to the Legislative Assembly of a State.

——————–

1. Subs. by Act 27 of 1956, sec. 42, for sections 76 to 78.

Section 77. Account of election expenses and maximum thereof

(1) Every candidate at air election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between ¹[the date on which he has been nominated] and the date of declaration of the result thereof, both dates inclusive.

²[Explanation 1.Notwithstanding any judgment, order or decision of any Court to the contrary, any expenditure incurred or authorized in connection with the election of a candidate by a political party or by any other association or body of persons or by ,my individual (other than the candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in connection with the election incurred or authorized by the candidate or by his election agent for the purposes of this subsection:

Provided target nothing contained in this Explanation shall affect-

(a) Any judgment, order or decision of the Supreme Court whereby the election of a candidate to the House of the People or to the Legislative Assembly of a State his been declared void or set aside before the commencement of the Representation of the People (Amendment) Ordinance, 1974 (Ord. 13 of 1974);

(b) Any judgment, order or decision of a High Court whereby the election of any such candidate has been declared void or set aside before the commencement it of’ the said Ordinance if no appeal has been preferred to the Supreme Court before such judgment, order or decision of the High Court before such commencement and the period of limitation for filing such appeal has expired before such commencement.

³ [* **]

⁴[Explanation 3.For the removal of doubt, it is hereby declared that any expenditure incurred in respect of any arrangements made, facilities provided or any other act or thing done by any person in the service of the Government and belonging to any of the classes mentioned in clause (7) of section 123 in the discharge or purported discharge of his official duty as mentioned in the proviso to that clause shall not be deemed to be expenditure in connection with the election incurred or authorized by a candidate or by his election agent for the purposes of this subsection.]

(2) The account shift contain such particulars, as may be prescribed.

(3) The total of the said expenditure shall not exceed such amount as may be prescribed.

——————–

1. Subs. by Act 40 of 1975, sec. 6, for, certain words (retrospectively).

2. Ins. by Act 59 of 1974, sec. 2 (w.e.f. 19-10-1974).

3. Explanation 2 omitted by Act of 1989, sec. 12 (w.e.f. 15-3-1989).

4. Ins. by Act 40 of’ 1075, sec. 6 (retrospectively)

Section 78. Lodging of account with the district election officer

¹[(1)] Every contesting candidate at an election shall, within thirty days from the dale of election of the returned candidate or, if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates, lodge with the ²[district, election officer] an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under section 77.]

³[(2) The reference to the district election officer in subsection (1) shall, in relation to a constituency in a Union territory, he construed as a reference to the returning officer for that constituency.]

——————–

1. Section 78 renumbered as sub-section (1) of that section by Act 47 of 1966, sec. 36.

2. Subs. by Act 47 of 1966, sec. 36, for “returning officer”.

3. Ins. by Act 47 of 1966, sec. 36.

Section 79. Definitions

In this Part and in ¹[Part VIII unless the context otherwise requires, -

²[(a) Any reference to a High Court or to the Chief Justice or Judge of a High Court shall, in rotation to a Union territory having a Court of the Judicial Commissioner, be construed as a reference to the said Court of the Judicial Commissioner or to the Judicial Commissioner or any Additional Judicial Commissioner, as the case may be;]

³[(b) “Candidate” means a person who has been or claims to have been duly nominated as a candidate at any election;]

(c) “Costs” means all costs, charges and expenses of, or incidental to, a trial of an election petition;

(d) “Electoral right” means the right of a person to stand or not to stand as, or ⁴[to withdraw or not to withdraw] from being, a candidate, or to vote or refrain from voting at all election;

⁵[(e) “High Court” means the High Court within the local limits of whose jurisdiction the election to which the election petition relates has been held; ]

(f) “Returned candidate” means a candidate whose name has been published under section 67 as duly elected.

——————–

1. Subs. by Act 47 of 1966, sec. 37, for “Parts VII and VIII”.

2. Ins. by Act 47 of 1966, sec. 37, original clause (a) was omitted by Act 27 of 1956, sec. 43.

3. Subs. by Act 40 of 1975, sec. 7 for clause (b) (retrospectively).

4. Subs. by Act 47 of 1966, sec. 37, for “to withdraw”(w.e.f. 14-12-1966).

5. Subs. By Act 47 of 1966, sec. 37 for claluse (e) (w.e.f. 14-12-1966)

Section 80. Election petitions

Chapter II. Presentation of Election Petitions to ¹[High Court]

——————–

1. Subs. by Act 47 of 1966, sec. 39, for “Election Commission” (w.e.f. 14-12-966).

80. Election petitions.

No election shall be called in question except by all election petition presented in accordance with the provisions of this Part.

Section 80 A. High Court to try election petitions

¹[High Court to try election petitions. (1) The Court having jurisdiction to try an election petition shall be the High Court.

(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice, shall, from time to time, assign one or more Judges for that purpose:

Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.

(3) The High Court in its discretion may, in the interests of justice or convenience, try all election petition, wholly or partly, at a place other than the piece of seat of the High Court.]

——————–

1. Ins. by Act 47 of 1966, sec. 38 (w.e.f. 14-12-1966).

Section 81. Presentation of petitions

(1) An election petition calling in question any election may be presented on one or more of the grounds specified in ¹[sub-section (1)] of section 100 and section 101 to the ²[High Court] by any candidate at such election or any elector ³[within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates].

Explanation. In this subsection, “elector” means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

⁴[***]

⁵[(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition ⁶[***] and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.]

——————–

1. Subs. by Act 27 of 1956, sec. 44, for “sub-sections (1) and (2)”

2. Subs. by Act 47 of 1966, sec. 39 for “Election Commission” (w.e.f. 14-12-1966).

3. Subs. by Act 27 of 19S6, sec. 44, for certain words.

4. Sub-section (2) omitted by Act 47 of 1966, sec. 39 (w.e.f. 14-12-1966).

5. Ins. by Act 40 of 1961, sec. 17 (w.e.f. 20-9-1961).

6. Certain words omitted by Act 47 of 1966, sec. 39 (w.e.f. 14-12-1966).

Section 82. Parties of the petition

¹[Parties of the petition. A petitioner shall join as respondents to his petition-

(a) Where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the returned candidates; and

(b) Any other candidate against whom allegations of any corrupt practice are made in the petition]

——————–

1. Subs. by Act 27 of 1956, sec. 45, for section 82.

Section 83. Contents of petition

¹[Contents of petition. (1) An election petition-

(a) Shall contain a concise statement of the material facts on which the petitioner relies;

(b) Shall set forth full particulars of any corrupt practice that the petitioner alleged including as full statement as possible of the names of the parties alleged to have commission such corrupt practice and the date and place of the commission of each such practice; and

(c) Shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

²[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by all affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.]

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same matter as the petition.

——————–

1. Subs. by Act 27 of 1956 sec. 46, for section 83.

2. Ins. by Act 40 of 196 1, sec. 18 (w.e.f. 20-9-1961).

Section 84. Relief that may be claimed by the petitioner

¹[Relief that may be claimed by the petitioner. A petitioner may, in addition to claiming a declaration that the election of all orally of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected

——————–

1. Subs. by Act 27 of 1956, see. 47, for section 84

Section 85. Procedure on receiving petition

Rep. by the Representation of the people (Amendment) Act, 1966 (47 of 1966), sec. 40

Section 86. Trial of election petitions

¹[Trial of election petitions. (1) The High Court shall dismiss all election petition which does not comply with the provisions of section 81 or section 82 or section 117.

Explanation. An order of the High Court dismissing all election petition under this sub-section shall he deemed to be an order made under clause (a) of section 98.

(2) As soon as any be after an election petition has been presented to the High Court, it shall be referred to the judges who has or have been assigned by file Chief Justice for the trial of election petitions under sub-section (2) of section 80A.

(3) Where more election petitions than one are presented lo the High Court in respect of the same election, all of them shall be referred for trial to the same judge who may, in his discretion, try them separately or in one or more groups.

(4) Any candidate not already a respondent shift, upon application made by him to the High Court within fourteen days front the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.

Explanation. For the purposes of this subsection and of section 97, the trial of a petition shall be deemed to commence on the date fixed for file respondents to appear before the High Court and answer the claim or claim made in the petition.

(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as in may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged it) the petition.

(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons lo be recorded.

(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months front the date on which the election petition is presented to the High Court for trial.

——————–

1. Subs. by Act 47 of’ 1966, sec. 41, for sections 86 to 92 (w.e.f. 14-12-1966)

Section 87. Procedure before the High Court

(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall he tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of’ 1908) to the trial of suits:

Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.]

Section 93. Documentary evidence

Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence at the trial of an election petition on the ground that it is not duly stamped or registered.

Section 94. Secrecy or voting not to be infringed

No witness or other person shall be required to state for whom he his voted at an election.

Section 95. Answering of criminating questions and certificate of indemnity

(1) No witness shall be excused from answering any question as to any matter relevant to a matter in issue in the trial of an election petition upon the ground that the answer to such question may criminate or may lend to criminate him, or that it may expose or may tend to expose him to any penalty or forfeiture:

Provided that-

(a) A witness, who answers truly all questions which he is required to answer shall be entitled to receive a certificate of certificate of indemnity from ¹[the High Court]; and

(b) An answer given by a witness to a question put by or before ¹[the High Court] shall not, except in the case of any criminal proceeding for perjury in respect of the evidence, be admissible in evidence against in any civil or criminal proceeding.

(2) When a certificate of indemnity has been granted to any witness, it may be pleaded by him in any Court and shall be a full and complete defence to or upon any charge under Chapter IXA of the Indian Penal Code (45 of 1860), or Pail VII of this Act arising out of the matter to which such certificate relates, but it shall not be deemed to relieve him front any disqualification in connection with an election imposed by this Act or any other law.

——————-

1. Subs. by Act 47 of’ 1966, sec. 42, for “the Tribunal” (w.e.f 14-12-1966)

Section 96. Expenses or witnesses

The reasonable expenses incurred by any person in attending to give evidence may be allowed by ¹[the High Court to such person and shall, unless ¹[the High Court] otherwise directs, be deemed to be part of the costs.

——————–

1. Subs. by Act 47 of 1966, sec. 42, for “the Tribunal” (w.e.f. 14-12-1966.)

Section 97. Recrimination when seat claimed

(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he hid beer the returned candidate and a petition had been presented calling in question his election:

Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of’ ¹[commencement of the trial], given notice to ²[the High Court] of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively.

(2) Every notice referred to in sub-section (I) shall be accompanied by the statement and ³[***] particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner.

——————–

1. Subs. by Act 27 of 1956, sec. 52, for “the publication of the election petition under section 90”.

2. Subs. by Act 47 of 1966, sea. 42, for “the Tribunal” (w.e.f. 14-12-1966)

3. The words “list of” omitted by Act 27 of 1956, sec. 52.

Section 98. Decision of the High Court

At the conclusion of the trial of the an election petition ¹[the High Court] shall make in order-

(a) Dismissing the election petition; or

(b) Declaring the election of ²[all or any of the returned candidates] to be void; or

(c) Declaring the election of ⁴[all or any of the returned candidates] to be void and the petitioner or any other candidate to have been duly elected ³[***]

——————–

1 Subs by Act 47 of 1966, sec. 42, for “the Tribunal” (w.e.f. 14-12-1966.)

2. Subs. by Act 27 of 1956, sec. 53, for “the returned candidate”.

3. The word “or” and clause (d) omitted by Act 27 of’ 1956, sec. 53.

Section 99. Other orders to he made by the High Court

(1) All the time of making an order under section 98 ¹[the High Court] shall also make an order-

²[(a) Where any charge is made in the petition of any corrupt practice having been Committed at the election, recording-

(i) Finding whether any corrupt practice has or has not been proved to hive been committed ³[***] at election, and the nature of that corrupt practice; and

(ii) The names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and]

(b) Fixing the total amount of cost payable and specifying the persons by and to whom costs shall be paid:

Provided that ⁴[a person who is not a party to the petition shall not be named] in the order under sub-clause (ii) of clause (a) unless-

(a) He has been given notice to appear before ⁵[the High Court] and to show cause why lie should not be so named; and

(b) If he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who his already been examined by ⁶[the High Court] and his given evidence against him, of calling evidence in his defence and of being heard.

⁷[(2) In this section and in section I 00, the expression “agent” has the same meaning as in section 123.]

——————–

1. Subs. by Act 47 of 1966, sec. 42, for “the Tribunal” (w.e.f. 14-15-1966.)

2. Subs. by Act 27 of 1956, sec. 54, for clause (a).

3. Certain words omitted try Act 58, sec. 29.

4. Subs. by Act 27 of 1956, sec. 54, for “no person shall be named”.

5. Subs. by Act 47 of 1966, sec. 42, for “the Tribunal” (w.e.f. 14-12-1966).

6. Subs. by Act 47 of 1966, sea. 42, for “the Tribunal” (w.e.f. 14-12-1966).

7. Subs. by Act 27 of 1956, sec. 54, for subsection (2).

Section 100. Grounds for declaring election to be void

¹[ (1) Subject to the provisions of sub-section (2) if ²[the High court] is of opinion-

(a) That on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act ³[or the Government of Union Territories Act, 1963 (20 of 1963)]; or

(b) That any corrupt practice has been continued by a retuned candidate or his election agent or by other person with the consent of retuned candidate or his election agent; or

(c) That any nomination has been improperly rejected; or

(d) That the result of the election, in so far as it concerns a returned candidate, has been materially affected-

(i) By the improper acceptance or any nomination, or

(ii) By any corrupt practice committed in the interests of the returned candidate ⁴[by an agent other than his election agent], or

(iii) By the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) By any noncompliance with the provisions of the Constitution or of’ this Act or of any rules or orders made under this Act,

⁵[the High Court] shall declare the election of the returned candidate to be void.]

⁶[(2) If in the opinion of 5[the High Court], a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice ⁷[* **] but ⁵[the High Court] is satisfied-

(a) That no such corrupt practice was committed at there election by the candidate or his election agent, and every such corrupt practice was committed contrary to the order, and ⁸[without the consent], of the candidate or his election agent;

⁹[* * *]

(c) That the candidate and his election agent took all reasonable means for preventing the commission of corrupt ¹⁰[***] practices at the election: and

(d) That in all other respects the election was free from any corrupt ¹⁰[* * *], practice on the part of’ the candidate or any of his agents,

Then ⁵[the High Court] may decide fiat the election of the returned candidate is not void.

——————–

1. Subs. by Act 27 of’ 1056, sec. 55, for sub-sections (1) and (2)

2. Subs. by Act 27 of 1966, sea. 42, for “the Tribunal” (w.e.f. 14-12-1966)

3. Ins. by Act 20 of I963, sec. 57 and the Second Schedule, the words “or the Government of Part C States Act, 1951 (49 of 1951)” were omitted by the Adaptation of Laws (No.2) Order, 1956

4. Subs. by Act 58 of 1958, sec. 30, words.

5. Subs. by Act 47 of’ 1966, sec. 42, for “the Tribunal” (w.e.f.14-12-1966)

6. Sub-section (3) renumbered as sub-section (2) by Act 27 of’ 1956, sec. 55

7. The words and figures “specified in section 123” omitted by Act 27 of 1956, sec. 55.

8. Subs. by Act 27 of’ 1956, sec. 55, for “without the sanction or connivance”

9. Clause (1)) omitted by Act 58 or 1958, sec. 30

10. The words “or illegal” omitted by Act 27 of 1956, sec. 55.

Section 101. Grounds for which a candidate other than the returned candidate may be declared to have been elected

If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and ¹[the High Court] is of opinion-

(a) That in fact the petitioner or such other candidate received a majority of the valid votes; or

(b) That but for the votes obtained by the returned candidate by corrupt ²[* * *] practices the petitioner or such other candidate would have obtained a majority of the valid votes,

³[the High Court] shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.

——————–

1. Subs. by Act 47 of’ 1966, sec. 42, for “the Tribunal” (w.e.f.14-12-1966)

2. The words “or illegal” omitted by Act 27 of 1956, sec. 56.

3. Subs. by Act 47 of 1966, sec. 42, for “the tribunal” (w.e.f. 14-12-1966).

Section 102. Procedure in case of an equality of votes

If during the trial of an election petition it appears that there is all equality of votes between any candidates at the election and that the addition of a vote would entitle any of those candidates to be declared elected, then-

(a) Any decision made by the returning officer under the provisions of this act shall, in so far as it determines the question between those candidates, be effective also for the purposes of the petition; and

(b) In so for as that question is not determined by such a decision ¹[the High court] shall decide between them by lot and proceed as if the one on whom the lot then falls had received an additional vote.

——————–

1. Subs. by Act 47 of 1966, sec. 42, for “the tribunal” (w.e.f. 14-12-1966).

Section 103. Communication of orders or the High Court

¹[Communication of orders or the High Court. The High Court shall, as soon as may be after the conclusion of the trial of all election petition, Ultimate the substance of the decision to the Election Commission and the Speaker or Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned and, as soon as may be thereafter, shall send to the Election Commission an authenticated copy of the decision.]

——————–

1. Subs. by Act 47 of 1066, sec. 43, for section 103 (w.e.f. 14-12-1966).

Section 104. Difference of opinion among the members of the Tribunal

Rep. By the Representation of the People (Second Amendment) Act, 1956 (27 of 1956), sec. 57.

Section 105. Orders of the ‘Tribunal to be final and conclusive

Rep. by the Representation of the People (Second Amendment) Act, 1956 (27 of 1956), sec. 58

Section 106. Transmission or order to the appropriate authority, etc., and its publication

As soon as may be after the receipt of any order made by ¹[the High Court] under section 98 or section 99, the Election Commission shall forward copies of the order to the appropriate authority and, in the case where such order relates to an election ²[* * *] to a House of Parliament or to an election to the House or a House of the Legislature of a State, also to the Speaker or Chairman, as the case may be, of the House concerned and ³[shall cause the order to be published-

(a) Where the order relates to an election to a House of Parliament in the Gazette of India as well as in the Official Gazette of the State concerned; and

(b) Where the order relates to an election to the House or a House of the Legislature of the State, in the Official Gazette of the State]

——————–

1. Subs. by Act 47 of 1966, sec. 42, for “the tribunal” (w.e.f. 14-12-1966)

2. The words and brackets “(other than a primary election)” omitted by Act 27 of 1956, sec. 59.

3. Subs. by Act 27 of 1956, sec. 59, for certain words.

Section 107. Effect of order of the High Court

¹[Effect of order of the High Court. ²[(1) Subject to the provisions contained in Chapter IV A relating to the stay of operation of an order of the High Court under section 98 section 99, every such order shall take effect as soon as it is pronounced by the High Court.]

——————–

1. Subs. by Act 27 of 1956, sec. 60, for section 107.

2. Subs. by Act 47 of 1966, sec. 44, for sub-section (1) (w.e.f. 14-12-1966).

Section 108. Withdrawal of petitions before appointment of Tribunal

Rep. by the Representation of the People (Amendment) Act, 1966 (47 of 1966), sec. 45

Section 109. Withdrawal of election petitions

¹[Withdrawal of election petitions. (1) An election petition may be withdrawn only by leave of the High Court.

(2) Where an application for withdrawal is made under subsection (1), notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the Official Gazette.

——————–

1. Subs. by Act 47 of 1966, sec. 46, for section 109 and 110 (w.e.f. 14-12-1966).

Section 110. Procedure for withdrawal of election petitioner

(1) If there are more petitioners than one, no application to withdraw an election petition shall be made except with the consent of all the petitioners.

(2) No application for withdrawal shall be granted if, in the opinion of the High Court, such application has been induced by any bargain or consideration which ought not to be allowed.

(3) If the application is granted-

(a) The petitioner shall be ordered to pay the costs of the respondents there to fore incurred or such portion thereof as the High Court may think fit;

(b) The High Court shall direct that the notice of withdrawal shall be published in the Official Gazette and in such other manner as it may specify and thereupon the notice shall be published accordingly;

(c) A person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in place of the party within, wing, and upon compliance with the condition, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the Court may deem fit.]

Section 111. Report or withdrawal by the High Court to the Election Commission

When an application for withdrawal is granted by ¹[the High Court] and no person has been substituted as petitioner under clause (c) of subsection (3) of section 110, in place of the party withdrawing ¹[the High Court] shall report the fact to the Election Commission ²[and thereupon the Election Commission shall publish the report in the Official Gazette].

——————–

1. Subs. by Act 47 o 1966, sec. 47, for “the Tribunal” (w.e.f’. 14-12- 1966).

2. Ins. by Act 27 of 1956, sec. 61.

Section 112. Abatement of election petitions

¹[Abatement of election petitions. (1) An election petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners.

(2) Where an election petition abates under sub-section (1), the High Court shall cause the fact to be published in such manner as it may deem tit.

(3) Any person who might himself have been a petitioner may within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions if any,, as security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit.]

——————–

1. Subs. by Act 47 of 1966, sec. 48, for sections 112 to 115 (w.e.f. 14-12-1966).

Section 116. Abatement or substitution on death of respondent

If be fore the conclusion of the trial of an election petition, the sole respondent dies or gives notice that he does not intend to oppose the petition or any of the respondents dies or gives such notice and there is no other respondent who is opposing the petition, ¹[the High Court] shall cause notice of such event to be published in the Official Gazette, and thereupon any person who might have been a petitioner may, within fourteen days of such publication, apply to be substituted in place of such respondent to oppose the petition, and shall be entitled to continue the proceedings upon such terms is ¹[the High Court] may think tit.

——————–

1. Subs. by Act 47 of 1966, sec. 49, for “the Tribunal” (w.e.f. 14-12-1966).

Section 116 A. Appeals to Supreme Court

¹[CHAPTER IV A.Appeals

——————–

1. Ins. by Act 27 of 1956, sec. 62.

¹[116A. Appeals to Supreme Court

(1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the Supreme Court on any question (whether of law or fact) from every order made by a High Court under section 98 or section 99

(2) Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the High Court under section 98 or section 99:

Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient, clause for not preferring the appeal within such period.

——————–

1. Subs. by Act 47 of 1966, sec. 50, for section 116A and 116B (w.e.f. 14-12-1966).

Section 116 B. Stay of operation of order of High Court

(1) An application may be made to the High Court for stay of operation of an order made by the High Court under section 98 or sections 99 before the expiration of the time allowed for appealing there form and the High Court may, on sufficient cause being shown and on such terms and conditions a it may think fit, stay the operation of the order; but no application for stay shall be made to the High Court after an appeal has been preferred to the Supreme Court.

(2) Where an appeal has been preferred against all order made under section 98 or section 90, the Supreme Court may, on sufficient cause being shown and on such terms and conditions as it may think fit, stay the operation of the order appealed from.

(3) When the operation of all order is stayed by the High Court or as the else may be, the Supreme Court, the order shall be deemed never to have taken effect Under Sub-section (1) of section 107; and a copy of the stay order shall immediately be sent by the High Court on as file else may be, the Supreme Court, to the Election Commission and the Speaker or Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned.

Section 116 C. Procedure in appeal

(1) Subject to the provisions of this Act and of the Rules, if any, a made the re-under every appeal shall be heard and determined by the Supreme Court as nearly as may be in accordance with the procedure applicable to the hearing and determination of an appeal from any final order passed by a High Court in the exercise of its original civil jurisdiction; and all the provisions of the code of Civil Procedure, 1908 (5of 1908) and the Rules of the Court (including provisions as to the furnishing of security and execution of any order of the Court) shall, so far as may be, apply in relation to such appeal.

(2) As soon as an appeal is decided, the Supreme Court shall intimate the substance of the decision to the Election Commission and the Speaker of Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned and as soon as may be thereafter shall send to the Election Commission all authenticated copy of the decisions and upon its receipts the Election Commission shall–

(a) Forward copies thereof to the authorities to which copies of the order of the High Court were forwarded under section 160; and

(b) Cause the decision to be published in the Gazette or Gazettes in which that order was published under the said section.]

Section 117. Security for costs

¹[Security for costs. (1) At the time of presenting at election petition, the petitioner shall deposit in the High Court in accordance with the Rules of the High Court a suite of two thousand rupees is security for the costs of the petition.

(2) During the course of the tribal of an election petition, the High Court rally, at anytime call upon the petitioner to give such further security for costs as it may direct.

——————–

1. Subs. by Act 47 of’ 1966, sec. 51, for sections 117, 118, 119, 119A and 120 (w.e.f’. 14-12-1966)

Section 118. Security for costs from a respondent

No person shall be entitled to be joined as a respondent under sub-section (4) of section 86 unless he has given such security for costs as the High Court may direct.

Section 119. Costs

Costs shall be in the discretion of the High Court

Provided that where a petition is dismissed under clause (a) of section 98, the returned candidate shall be entitled to the costs incurred by him in contesting the petition and accordingly the High Court shall make an order for costs in favour of the returned candidate.]

Section 121. Payment of costs out of security deposits and return of such deposits

(1) If in any order as to costs under the provisions of this Part there is a direction for payment of costs by any party to any person, such costs shall, if they have not been already paid, be paid in full, or so far as possible out of the security deposit and the further security deposit, if any, made by such party under this part on an application made in writing in that behalf ¹[within a period of one year, from the date of such order] to ²[the High Court] by the person in whose favour the costs have been awarded.

(2) If there is any balance left of any of the said security deposits after payment under subsection (1) of the costs referred to in that subsection, such balance, or where no costs have been awarded or no application is aforesaid has been made within the said period of ³[one year] the whole of the said security deposits may, on an application made in that behalf in Writing to ²[the High Court] by the person by whom the deposits have been made or if such person dies after making such deposits by legal representative of such person, be returned to the said person or to his legal representative, as the case may be.

——————–

1. Subs. by Act 58 of’ 1958, sec. 34, for certain words

2. Subs. by Act 47 of 1966, sec. 52, for ‘the Election Commission” (w.e.f. 14-12-1966).

3. Subs. by Act 58 of 1958, sec. 34, for “six months”.

Section 122. Execution of orders as to costs

Any order as to costs under the provisions of this part may be produced before the principal civil court of original jurisdiction within the local limits of whose jurisdiction any person directed by such order to pay any sum, of money has a place of residence of business, o where such place is within a presidency town, before the court of small causes having jurisdiction there, and such court shall execute the order or cause the same to be executed in the same manner, and by the same procedure as if it were a decree for the payment of money made by itself in a suit:

Provided that where any such costs or any apportion thereof may be recovered by an application made under subsection (1) of section 121, no application shall lie under this section ¹[within a period of one year from the date of such order] unless it is for recovery of the balance of any costs which has been left un realised after an application has been made under that subsection owing to the insufficiency of the amount of the security deposits referred to in that sub-section.

——————–

1. Subs. by Act 58 of 1958, sec. 35, for certain words.

Section 123. Corrupt practices

PART VII

¹[CORRUPT PRACTICES AND ELECTORAL OFFENCES]

²[CHAPTER I. Corrupt Practices

——————–

1. Subs. by Act 27 of 1956, sec. 65, for the heading “CORRUPT AND ILLEGAL PRACTICES AND ELECTORAL OFFENCES”.

2. Subs. by Act 27 of 1956, sec. 66, for Chapters 1 and 11 (sections 123 to 125).

Section 123. Corrupt practices.

The following shall be deemed to be corrupt practices for the purposes of this Act: -

¹[(1) “Bribery” that is to say-

(A) Any gift offer or promise by a candidate of his agent or by any other person with the consent of a candidate or his election agent of any gratification to any person whomsoever, with the objects, directly or indirectly of inducing-

(a) A person to stand or not to stand as, or ²[to withdraw or not to withdraw] from being a candidate at an election, or

(b) An elector to vote or refrain from voting at an election, or as a reward to-

(i) A person for having so stood or not stood, or for ³[having withdrawn or not having withdrawn] his candidature; or

(ii) An elector for having voted or refrained from voting;

(B)The receipt of, or agreement to receive, any gratification, whether as a motive or a reward

(a) By a person for standing or not standing as, or for ⁴[withdrawing or not withdrawing] from being, a candidate; or

(b) By any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate ²[to withdraw or not to withdraw] his candidature.

Explanation

For the purposes of this clause the term “gratification” is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.]

(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person ⁵[with the consent of the candidate or his election agent], with the free exercise of any electoral right:

Provided that-

(a) Without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-

(i) Thereaters any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) Kinduces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered and object of divine displeasure or spiritual censure,

Shall be deemed of interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

(b) A declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent of interference within the meaning of this clause.

⁶[(3) The appeal by a candidate or his agent or by any other person with the consent of a candidates or his election agent to vote or refrain from voting for any person on the ground of his religion, race caste community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbol such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate of for prejudicially affecting the election of bay candidate;

⁷[Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.]

(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on ground of religion race caste community or language, by a candidate or his agent or any other person with the consent of candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.]

⁸[(3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

Explanation- For the purposes of this clause, “sati” and “glorification” in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987].

(4) The publication by a candidate or his agent or by any other person ⁹[with the consent of the candidate or his election agent], of any statement of fact which is false3, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct or any candidate in relation to the candidature, or withdrawal, ¹⁰[* * *] of a try candidate, being a statement reasonably calculated to prejudice the prospects of that candidate’s election.

(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person ¹¹[with the consent of a candidate or his election agent for the use of such vehicle or vessel for the free conveyance] of any elector (other than the candidate himself the members of his family or his agent) to or from any polling station provided under section 25 or place fixed under subsection (I ) of section 29 for the poll:

Provided that the hiring of vehicle or vessel by a it elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shill not be deemed to be in corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power:

Provided further that the use of any public transport vehicle or vessel orally tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.

Explanation.In this clause, the expression “vehicle” means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for driving other vehicles or otherwise.

(6) The incurring or authorizing of expenditure lit contravention of section 77.

(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person ¹²[With the consent of the candidate or his election agent], any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate’s election ¹⁹[from any person whether or not in the service of the Government] and belonging to any of the following classes, namely–

(a) Gazetted officer, -

(b) Stipendiary judges and magistrates;

(c) Members of the armed forces of the Union;

(d) Members of the police forces;

(e) Excise officers;

¹³[(f) Revenue officers other than village revenue officers known is lambardars malguzars, patels, deshmukhs or by any other name whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge ally police functions; and)

(g) Such other class of’ persons in the service of the Government as may be Prescribed:

²⁰[(h) class of persons in the service of a local authority, university, government company or institution or concern or undertaking appointed or deputed by the Election Commission in connection with the conduct of elections.]

¹⁴[Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangement, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate’s election.]

¹⁵[(8) Booth capturing by a candidate or his agent or other person]

Explanation

(1) In this section the expression “agent” includes an election agent a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.

(2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate’s election as an election agent ¹⁶[* * *] of that candidate.]

¹⁷[(3) For the proposes of clause (7), not withstanding any thing contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (inclaling a person serving in connection with the administration of a Union territory) or of a State Government shall he conclusive proof-

(i) Of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and

(ii) Where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal from service such person ceased to be in such service with effect from the said date.]

¹⁸[(4) For the purposes of clause (8), “booth capturing” shall have the same meaning as in section 135A.]

——————–

1. Subs. by Act 58 of 1958, sec. 36, for clause (1).

2. Subs. by Act 47 of 1966, sec. 53, for “to withdraw” (w.e.f.14-12-1966).

3. Subs. by Act 47 of 1966, sec. 53, for “having withdrawn” (w.e.f. 14-12-1966).

4. Subs. by Act 47 of 1966, sec. 53 for “withdrawing” (w.e.f. 14-12-1966).

5. Ins. by Act 58 of 1958, sec. 36.

6. Subs. by Act 40 of’ 1961, sec. 23, for clause (3) (w.e.f. 20-9-1961)

7. Ins. by Act 40 of 197.5, sec. 8 (retrospectively)

8. Ins. by Act 3 of 1988, sec. 19 (w.e.f. 21-3-1088)

9. Ins by Act 58 of 1058, sec. 36.

10. The words “or retirement from contest” omitted by Act 58 of 1958, sec. 36.

11. Ins. by Act 58 of 1958, sec. 36.

12. Subs. by Act 47 of 1966 sec. 53, “for the conveyance”(w.e.f. 14-12-1966).

13. Subs. by Act 58 of 1958, sec. 36, for sub-clause (f).

14. Ins. by Act 40 of 1975, sec. 8 (retrospectively)

15. Ins. by Act 1 of 1989, sec. 13 (w.e.f. 15-3-1989)

16. The words “or a polling agent or a counting agent” omitted by Act 47 of 1966, sec. 53 (w.e.f. 1412-1966).

17. Added by Act 40 of 1975, sec. 8 (retrospectively)

18. Ins. by Act I of 1989, sec. 13 (w.e.f. 15-3-1989)

19. Subs. by Act No. 41 of 2009 w.e.f. 22.12.2009.

20. Ins. by Act No. 41 of 2009 w.e.f. 22.12.2009.

Section 125. Promoting enmity between classes in connection with election

¹[Promoting enmity between classes in connection with election. Any person who in connection with an election underlies Act promotes or attempts to promote on grounds of religion, rice, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

——————–

1. Ins. by Act 40 of 1961, sec. 24 (w.e.f. 20-9-1961)

Section 126. Prohibition of public meetings during period of forty-eight hours ending with hour ending for conclusion of poll

¹[Prohibition of public meetings during period of forty-eight hours ending with hour ending for conclusion of poll. (1) No person shall-

(a) Convene, hold, attend, or address any public meeting or procession in connection with an election; or

(b) Display to the public any election matter by means of cinematograph, television or other similar apparatus-, or

(c) Propagate any election matter to the public by holding or by arranging the holding of, any musical concert or any theatrical performance or any other entertainment or amusement with a view to attracting the members of the public thereto, in any polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in that polling area.

(2) Any, person who contravenes the provision of sub-section (l) shall be punishable with imprisonment for a term which may extend to two years or with fine or with both.

(3) In this section, the expression “election matter” means any matter intended or calculated to influence or affect the result of an election.]

——————–

1. Subs. by Act 21 of 1996, sec. 10 (w.e.f. 1-8-1996).

Section 126 A. Restriction on publication and dissemination of result of exit polls, etc

¹[Restriction on publication and dissemination of result of exit polls, etc. (1) No person shall conduct any exit poll and publish or publicise by means of the print or electronic media or disseminate in any other manner, whatsoever, the result of any exit poll during such period, as may be notified by the Election Commission in this regard.

(2) For the purposes of sub-section (1), the Election Commission shall, by a general order, notify the date and time having due regard to the following, namely—

(a) in case of a general election, the period may commence from the beginning of the hours fixed for poll on the first day of poll and continue till half an hour after closing of the poll in all the States and Union territories;

(b) in case of a bye-election or a number of bye-elections held together, the period may commence from the beginning of the hours fixed for poll on and from the first day of poll and continue till half an hour after closing of the poll:

Provided that in case of a number of bye-elections held together on different days, the period may commence from the beginning of the hours fixed for poll on the first day of poll and continue till half an hour after closing of the last poll.

(3) Any person who contravenes the provisions of this section shall be punishable with imprisonment for a term which may extend to two years or with fine or with both.

Explanation.—For the purposes of this section,—

(a) “exit-poll” means an opinion survey respecting how electors have voted at an election or respecting how all the electors have performed with regard to the identification of a political party or candidate in an election;

(b) “electronic media” includes internet, radio and television including Internet Protocol Television, satellite, terrestrial or cable channels, mobile and such other media either owned by the Government or private person or by both;

(c) “print media” includes any newspaper, magazine or periodical, poster, placard, handbill or any other document;

(d) “dissemination” includes publication in any “print media” or broadcast or display on any electronic media.]

——————–

1. Inserted by Act No. 41 of 2009 w.e.f. 22.12.2009

Section 126 B. Offences by companies

¹[Offences by companies. (1) Where an offence under sub-section (2) of Section 126-A has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.—For the purpose of this section,—

(a) “Company” means any body corporate, and includes a firm or other association of individuals; and

(b) “Director”, in relation to a firm, means a partner in the firm.’]

——————–

1. Inserted by Act No. 41 of 2009 w.e.f. 22.12.2009

Section 127. Disturbances at election meetings

(1) Any person who at a public meeting to which this section applies acts, or incites others to act, in a disorderly manner for the purpose of preventing, the transaction of the business for which the meeting was called together, ¹[shall be punishable with imprisonment for a term which may extend to ²[six months or with fine which may extend to two thousand rupees], or with both.]

³[(1A) An offence punishable under subsection (1) shall be cognizable.]

(2) This section applies to any public meeting of a political character held in any constituency between the dates of the issue of a notification under this Act calling upon the constituency to elect a member or members and the date on which such election is held.

(3) If any police officer reasonably suspects any person of committing any offence under sub-section (l), he may requested so to do by the chairman of the meeting, require that person to declare to him immediately his name and address and. if that person refuses or fails so to declare his name and address or if the police officer reasonably suspects him of giving a false name or address, the police officer may arrest him without warrant.

——————–

1. Subs. by Act I of 1989, sec. 14, words (w.e.f. 15-3-1989).

2. Subs. by Act 21 of 1996, sec. 11 (w.e.f. 1-8-1996).

3. Ins. By Act 21 of 1996, sec. 11 (w.e.f. 1-8-1996)

Section 127 A. Restrictions on the printing of pamphlets, posters, etc

¹[Restrictions on the printing of pamphlets, posters, etc. (1) No person shall print or publish or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof

(2) No person shall print or cause to be printed any election pamphlet or poster-

(a) Unless a declaration as to the identity, of the publisher thereof, signed by him, and attested by two persons to whom he is personally known, is delivered by, him to the printer ‘in duplicate; and

(b) Unless, within a reasonable time after the printing of the document, one copy of’ the declaration is sent by, the printer, together with one copy of the document.

(i) Where it is printed in the capital of the State. to the Chief Electoral Officer, and

(ii) In any other case, to the district magistrate of the district in which it is printed.

(3) For the purposes of this section, -

(a) Any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be, printing and the expression “printer” shall be construed accordingly; and

(b) “Election pamphlet or poster” means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates orally placard or poster having reference to all election, but does not include any handbill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instructions to election agents or workers.

(4) Any person who contravenes any of the provisions of sub-section (1) or subsection (2) shall be punishable with imprisonment for a term which may extend lo six months, or with fine which may extend to two thousand rupees, or with both.]

——————–

1. Ins. By Act 40 of 1961, sec. 26 (w.e.f. 20-9-1961)

Section 128. Maintenance of secrecy of voting

(1) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law) communicate to ally person any information calculated to violate such secrecy.

(2) Any person who contravenes the provisions of subsection (1) shall be punishable with imprisonment for a term, which may extend to three months or with fine or with both.

Section 129. Officers, etc., at elections not to act for candidates or to influence voting

(1) No person who is ¹[a district election officer or a returning officer], or an assistant returning officer, or a presiding or polling officer at all election, or all officer or clerk appointed by the returning officer for the presiding officer to perform any duty in connection with all election shall in the conduct or the management of the election do any act (other than the giving of vote) for the furtherance of the prospects of the election of a candidate.

(2) No such person as aforesaid, and no member of a police force, shall endeavour-

(a) To persuide any person to give his vote it all election, or

(b) To dissuade any person from giving his vote it all election, or

(c) To influence the voting of any person at all election in any manner.

(3) Any person who contravenes the provisions of subsection (1) or subsection (2) shall be punishable with imprisonment, which may extend to six months or with title or with both.

²[(4) An offence punishable under subsection (3) shall be cognizable.]

——————–

1. Subs. by Act 47 or 1966, sec. 55, for “a returning officer” (w.e.f. 14-12-1966).

2. Ins. by Act 47 of 1966 sec. S5 (w.c.1’. 14-12-1966).

Section 130. Prohibition of canvassing in or near polling stations

(1) No person shall, on the date or dates on which a poll is taken at any polling station, commit any of the following acts within the polling station or it in any public or private place within a distance of ¹[one hundred metres] of the polling station, namely: -

(a) Canvassing for votes; or

(b) Soliciting the vote of any elector; or

(c) Persuading any elector not to vote for any particular candidate; or

(d) Persuading any elector not to vote at the election; or

(e) Exhibiting any notice or sign (other than an official notice) relating to the election.

(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with fine, which may extend to two hundred and fifty rupees.

(3) An offence punishable under this section shall be cognizable.

——————–

1. Subs. by Act 47 of 1966 sec. 56, for “one hundred yards” (w.e.f. 14-12-1966).

Section 131. Penalty for disorderly conduct in or near polling stations

(I) No person shall, on the date or dates on which a poll is taken at any polling station, -

(a) Use or operate within or at the entrance of the polling station, or in any public or private place in the neighborhood thereof, any apparatus for amplifying or reproducing the human voice, such as a megaphone or a loudspeaker, or

(b) Shout, or otherwise act in a disorderly manner, within or at the entrance of the polling station or in any public or private place in the neighborhood thereof,

So as to cause annoyance to any person visiting the polling station for the poll, or so as to interfere with the work of the officers and other persons on duty at the polling station.

(2) Any person who contravenes, or wilfully aids or abets the contravention of, the provisions of subsection (1) shall be punishable with imprisonment, which may extend to three months or with fine or with both.

(3) If the presiding officer of a polling station has reason to believe that any person is committing or has committed an offence punishable under this section, he may direct any police officer to arrest such parson, and thereupon the police officer shall arrest him.

(4) Any police officer may take such steps, and use such force, as may be reasonably necessary for preventing any contravention of the provisions of subsection (1), and may seize any apparatus used for such contravention.

Section 132. Penalty for misconduct at the polling station

(1) Any person who during the hour, fixed for the poll at any polling station misconducts himself or fails to obey the lawful directions of the presiding officer may be removed from the polling station by the presiding officer or by any police officer on duty or by any person authorized in this behalf by such presiding officer.

(2) The powers conferred by subsection (1) shall not be exercised so as to prevent any elector who is otherwise entitled to vote at a polling station from having an opportunity of voting at that station.

(3) If any person who has been so removed from a polling station re-enters the polling station without the permission of the presiding officer, he shall be punishable with imprisonment for a term, which may extend to three months, or with fine, or with both.

(4) An offence punishable under sub-section (3) shall be cognizable.

Section 132 A. Penalty for failure to observe procedure for voting

¹[Penalty for failure to observe procedure for voting. If any elector, to whom a ballot paper has been issued, refuses to observe the procedure prescribed for voting the ballot paper issued to him shall be liable for cancellation.]

——————–

1. Ins. by Act 4 of 1996, sec. 2 and Sch. (w.e.f 15-5-1986).

Section 133. Penalty for illegal hiring or procuring of conveyance at elections

¹[Penalty for illegal hiring or procuring of conveyance at elections. If any person is guilty of any such corrupt practice as is specified in clause (5) of section 123 at or in connection with an election, he shall be punishable with imprisonment, which may extend to three months and with fine.]

——————–

1. Subs. by Act 21 of 1996, sec. 12 (w.e.f 1-8-1996).

Section 134. Breaches of official duty in connection with elections

(1) If any person to whom this section applies is without reasonable cause guilty of any act or omission in breach of his official duty, he shall be punishable with fine, which may extend to five hundred rupees.

¹[(IA) An offence punishable under sub-section (1) shall be cognizable.]

(2) No suit or other legal proceedings shall lie against any such person for damages in respect of any such act or omission as aforesaid.

(3) The persons to whom this section applies are the ²[***] ³[district election officers, returning officers], assistant returning officers, presiding officers, polling officers and any other person appointed to perform any duty in connection with ⁴[***] the receipt of nominations of with drawl of candidatures, or the recording or counting of votes at an election- and the expression “official duty” shall for the purposes of this section be construed accordingly, but shall not include duties imposed otherwise than by or under this Act ²[***].

——————–

1. Ins. by Act 47 of 1966, sec. 58, (w.e.f. 14-12-1966).

2. Certain words omitted by Act 58 of 1958, sec. 37.

3. Subs. by Act 47 of 1966, sec. 58, for “returning officers” (w.e.f. 14-12-1966).

4. The words ‘the preparation of an electoral roll” omitted by Act 59 of 1958, sec. 37.

Section 134 A. Penalty for Government servants for acting as election agent, polling agent or counting agent

¹[Penalty for Government servants for acting as election agent, polling agent or counting agent. If any person in the service of the Government acts as an election agent or a polling agent or a counting agent of a candidate at an election, he shall be punishable with imprisonment for a term which may extend to three months, or with fine, or with both.]

——————–

1. Ins. by Act 47 of 1966, sec. 59 (w.e.f 14-12-1966).

Section 134 B. Prohibition of going armed to or near polling station

¹[Prohibition of going armed to or near polling station. (1) No person, other than the returning officer the presiding officer, any police officer and any other person appointed to maintain peace and order at a polling station who is on duty at the polling station., shall, on a polling day, go armed with anus, as defined in the Arms Act, 1959, of any kind within the neighbourhood of a polling station.

(2) If any person contravenes the provisions of sub-section (1), he shall be punishable with imprisonment for a term, which may extend to two years or with fine, or with both.

(3) Notwithstanding any thing contained in the Arms Act, 1959 (54 of 1959), where a person is convicted of an offence under this section, the arms as defined in the said Act found in his possession shall be liable to confiscation and the licence granted in relation to such an-ns shall be deemed to have been revoked under section 17 of that Act.

(4) An offence punishable under subsection (2) shall be cognizable.]

——————–

1. Ins. by Act 21 of 1996, sec. 13 (w.e.f. 1-9-1996).

Section 135. Removal of ballot papers from polling station to be an offence

(1) Any person who at any election ¹[unauthorisedly] takes, or attempts to take, a ballot paper out ,of a polling station, or willfully aids or abets the doing of any such act, shall be punishable with imprisonment for a term which may extend to one year or with fine, which may extend to five hundred rupees or with both.

(2) If the presiding officer of a polling station has reason to believe that any person is committing or has committed an offence punishable under subsection (1), such officer may, before such person leaves the polling station, arrest or direct a police officer to arrest such person and may search such person or cause him to be searched by a police officer:

Provided that when it is in necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency.

(3) Any ballot paper found upon the person arrested on search shall be made over for safe custody to a police officer by the presiding officer, or when the search is made by a police officer, shall be kept by such officer in safe custody

(4) All offence punishable under sub-section (1) shall be cognizable.

——————–

1. Subs. by Act 21 of 1996, sec. 14 (w.e.f. 1-8-1996).

Section 135 A. Offence of booth capturing

¹[Offence of booth capturing. ²[(1)] Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which 3[shall not be less than one year but which may extend to three years and with fine, and where such offence is committed by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine.]

Explanation. For the purposes of ³[this sub-section and section 20 B] “booth capturing” includes, among other things all or any of the following activities, namely: -

(a) Seizure of a polling station or a place fixed for the poll is an person or persons making polling authorities surrender the ballot papers or voting machines and doing of any other Act, which affects the orderly, conduct of elections:

(b) Taking possession of a polling station or a place fixed for poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and ²[prevent others from free exercise of their right to vote;

(c) ³[Coercing or intimidating or threatening directly or indirectly,] any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote,

(d) Seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes,

(e) Doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate.]

⁴[(2) An offence punishable under subsection (1) shall be cognizable.]

——————–

1. Ins. by Act I of 1989, sec. 15 (w.e.f. 15-3-1989).

2. Section 135A renumbered as sub-section (1) there of by Act 2l of 1996, sec. 15 (w.e.f. 1-8-1996).

3. Subs. by Act 21 of 1996, sec. 15 (w.e.f. 1-8-1996).

4. Ins. by Act 21 of’ 1996, sec. 15 (w.e.f 1-8-1996)

Section 135 B. Grant of paid holiday to employees on the day of poll

¹[Grant of paid holiday to employees on the day of poll. (1) Every person employed in any business, trade, industrial undertaking or any other establishment and entitled to vote at an election to the House of the People or the Legislative Assembly of a State shall on the day of poll, be granted a holiday.

(2) No deduction or abatement of the wages of any such person shall be made on account of a holiday having, been granted in accordance with sub-section (1) and if such person is employed on the basis that he would not ordinarily receive wages for such a day he shall nonetheless be paid for such day the wages be would have drawn had not a holiday been granted to him on that day.

(3) If an employer contravenes the provisions of subsection (1) or sub-section (2), then such employer shall be punishable with fine, which may extend to five hundred rupees.

(4) This section shall not apply to any elector whose absence may cause danger or substantial loss in respect of the employment in which he is engaged.

——————–

1. Ins. by Act 21 of 1996, sec. 16 (w.e.f 1-8-1 996).

Section 135 C. Liquor not to be sold, given or distributed on polling day

(1) No spirituous, fermented or intoxicating liquors or other substances of a like nature shall be sold, given or distributed at a hotel, eating house, tavern, shop or any other place, public or private within a polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for aii3, election in that polling area.

(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term, which may extend to six months or with fine, which may extend to two thousand rupees, or with both.

(3) Where a person is convicted of an offence under this section, the spirituous, fermented or intoxicating liquors or other substances of a like nature found in his possession shall be liable to confiscation and the same shall be disposed of in such manner is may be prescribed.]

Section 136. Other offences and penalties therefor

(1) A person shall be guilty of an electoral offence if at any election he-

(a) Fraudulently defaces or fraudulently destroys any nomination paper; or

(b) Fraudulently defaces destroys or removes any list, notice or other document affixed by or under the authority of returning officer; or

(c) Fraudulently defaces or fraudulently destroys any ballot paper or the official mark on any ballot paper or any declaration of identity or official envelope used in connection with voting by postal ballot; or

(d) Without due author supplies any ballot paper to any person ¹[or receives any, ballot paper from any person or in possession of any ballot paper] or

(e) Fraudulently puts into any ballot box anything other than the ballot paper which he is authorised by law to put in; or

(f) Without due authority destroys, takes, opens or otherwise interferes with any ballot box or ballot papers than in use for the purposes of the election; or Fraudulently or without due authority, as the case may be, attempts to do any of the foregoing acts or wilfully aids or abets the doing of any such acts.

(2) Any person guilty of an electoral offence under this section shall, -

(a) If he is returning officer or an assistant returning officer or a presiding officer at a polling station or any other officer or clerk employed on official duty in connection with the election be punishable with imprisonment for a term, which may extend to two years or with fine or with both;

(b) If he is any other person, be punishable with imprisonment for a term, which may extend to six months or with fine or with both.

(3) For the purposes of this section, a person shall be deemed to be on official duty if his duty is to take part in the conduct of an election or part of an election including the counting of votes or to be responsible after ail election for the used ballot papers and other documents in connection with such election but the expression “official duty” shall not include any duty imposed otherwise than by or under this Act ²[* * *]

³[(4) An offence punishable under subsection (2) shall be cognizable.]

——————–

1. Ins. by Act 27 of 1956, sec. 70.

2. Certain words omitted by Act 58 of 1958, sec. 39.

3. Subs. by Act 47 of’ 1966, sec. 60, for subsection (4) (w.e.f 14-12-1966)

Section 137. Prosecution regarding certain offences

Rep. by the Representation of the People (Amendment) Act, 1966(47 of 1966), sec. 61

Section 138. Amendment of Act 5 of 1898

Rep. by the Repealing and Amending Act, 1957 (36 o 1957), sec. 2 and the First,Such.

Section 139-145. Sections

Rep. by the Representation o the People (Amendment) Act, 1966 (47 of 1966), sec.- 62.

Section 146. Powers of Election Commission

¹[Chapter IV.Powers of Election Commission in connection with Inquiries as to Disqualifications of member

——————–

1. Ins. by Act 17 of 1965, sec.2.

146. Powers of Election Commission.

(1) Where in connection with the tendering of any opinion to the President under article 103 or, as the case may be, under subsection (4) of section 14 of the Government of Union Territories Act, 1963 (20 of 1963), or to the Governor under article 192, the Election Commission considers it necessary or proper to make an inquiry, and the Commission is satisfied that on the basis of the affidavits filed and the documents produced in such inquiry by the parties concerned of their own accord. it cannot come to a decisive opinion on the matter which is being inquired into, the Commission shall have, for the purposes of such inquiry, the powers of a civil court, while trying a suit under the Code of Civil Procedure. 1909 (5 of 1908), in respect of the following matters, namely: -

(a) Summoning and enforcing the attendance of any person and examining him on oath;

(b) Requiring the discovery and production of any document or other material object producible as evidence;

(c) Receiving evidence on affidavits;

(d) Requisitioning, any public record or a copy thereof from any Court or officer

(e) Issuing commissions for the examination of witnesses or documents.

(2) The Commission shall also have the power to require any person, subject to any privilege which may be claimed be that person under any law for the time being in force., to furnish information on such points or matters as in the opinion of the Commission may be useful for or relevant to, the subject-matter of the inquiry.

(3) The Commission shall be deemed to be a civil court and when any such offence, as is described in section 175, section 178, section 179, section 190 or section 229 of the Indian Penal Code (45 of 1860) is committed in the view or presence of the Commission, the Commission may after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1899 (5 of 1998) 1[to forward the case to a magistrate having jurisdiction to try the same and the magistrate to whom an), such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under section 482 of the Code of Criminal Procedure, 1999 (5 of 1898)¹.

(4) Any proceeding before the Commission shall be deemed a Judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).

——————–

1. See now the corresponding provisions of the Code of Criminal Procedure, 1973 (Act 2 of 1974).

Section 146 A. Statements made by person to the Election Commission

No statement made by a person in the course of giving evidence before the Election Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a Prosecution for giving false evidence by such statement:

Provided that the statement-

(a) Is made in reply to a question which he is required by the Commission to answer, or

(b) Is relevant to the subject matter of the inquiry.

Section 146 B. Procedure to be allowed by the Election Commission

The Election Commission shall have the power to regulate its own procedure (including the fixing of places and times of its sittings and deciding whether to sit in public or in private.)

Section 146 C. Protection of action taken in good faith

No suit, prosecution or other legal proceeding shall lie against, the Commission or any person acting under the direction of the Commission in respect of, anything which is in good faith done or intended to be done in pursuance of the foregoing provisions of this Chapter or of any order made there under respect of the tendering of any opinion by the Commission to the President or, as the case may be, to the Governor or in respect of the publication, by or under the authority of the Commission of any such opinion paper or proceedings.

Section 147. Casual vacancies in the Council or States

¹[(1)] When before the expiration of the term of office of a member elected to the Council of States, his seat becomes vacant or is declared vacant or his election to the Council of States is declared void, the Election Commission shall by in notification in the Gazette of India call upon the elected members of the Legislative Assembly or the members of the electoral college concerned ²[* * *], as the case may be, to elect a person or the purpose of filling the vacancy so caused before Such date is may be specified in the notification and provisions of this Act and of the rules and orders made herein under shall apply, is far as may be, in mention to the election of a member to fill such vacancy.

³[(2) As soon as may be after the date of commencement of Constitution (seventh Amendment) Act, 1956, bye-election shall be field to fill the vacancies existing on trial date in the seats allotted to the States of’ Assam, Orissa and Uttar Pradesh and the Union territories of Delhi, Himachal Pradesh* and Manipur^*.]

——————–

1. Section 147 renumbered as sub-section (1) of that section by the adaptation of laws (No. 2) Order, 1956.

2. Certain words omitted by Act 49 of 1951, sec. 44 and the Fifth Sch.

3. Ins. by the Adaptation of laws (No. 2) Order, 1956.

* Now it has become State.

Section 148. Casual vacancies in the electoral colleges for certain Union territories

Rep. by the Territorial Council Act, 1950 (103 of 1956), sec. 66

Section 149. Casual vacancies in the House of the people

(1) When the seat of a member elected to the House of the People becomes vacant or is declared vacant or his election to the House of the People is declared void, the Election Commission shall, subject to the provisions of sub-section (2) by a notification in the Gazette of India, call upon the Parliamentary constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notifications and the provisions of this Act and of the rules and orders made thereunder shall apply, as for as may be, in rotation to the election of a member to fill such vacancy.

(2) If the vacancy so caused be a vacancy in a seat reserved in any such constituency for the Scheduled Castes or for any Scheduled Tribes, the notification issued under subsection (1) shall specify that the person to fill that seat shall belong to the Scheduled Castes or to such Scheduled Tribes, as the case may be.

Section 150. Casual vacancies in the State Legislative Assemblies

(1) Which the scat of a member elected to the Legislative Assembly of a State becomes vacant or is declared vacant or his election to the Legislative Assembly is declared told, the Election Commission shall, subject to the provisions of sub-section (2). by a notification in the Official Gazette, call upon the Assembly constituency concerned to elect a person for the purpose of filling the vacant,” so caused before such date as may be specified in the

(2) If the vacancy so caused be a vacancy in a seat reserved in any such constituency for the Scheduled Caste or for any Scheduled Tribes the notification issued under sub-section (1) shall specify that the person to fill that seat shall belong to the Scheduled Castes or to such Scheduled Tribes as the case not may be. Scheduled Tribes, as the case may be

Section 151. Casual vacancies in the State Legislative Councils

When before the expiration of the term of office of a member elected to the Legislative Council of a State, his scat becomes vacant or is declared vacant or his election to the Legislative Council is declared void, the Election Commission shall- by a notification in the Official Gazette, Call upon the Council constituency concerned or the members of the Legislative Assembly of the State, as the case may be, to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the miles and orders made there under shall apply as far as may be, in relation to the election of a member to fill such vacancy.

Section 151 A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151

¹[Time limit for filling vacancies referred to in sections 147, 149, 150 and 151. Notwithstanding anything contained in section 147, section 149, section 150 and section 151 a bye-election for filling any vacancy referred to in any of’ the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:

Provided that nothing contained in this section shall apply if-

(a) The remainder of the term of a member in relation to a vacancy is less than one year, or

(b) The Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period.]

——————–

1. Ins. By Act 21 of 1996, sec. 17 (w.e.f. 1-8-1996)

Section 152. List of members of the State Legislative Assemblies and electoral colleges to be maintained by returning officers concerned

(1) The returning officer for an election by the elected members of the Legislative Assembly of a State to fill a seats in the Council of States or for an election, by the members of the Legislative Assembly of a State to Fill a seat or seats in the Legislative Council of the shall, for the purposes of such election maintain is his office in the prescribed manner and form a list of elected members or a list of members, as the case may be of that Legislative Assembly.

(2) The returning officer for an election b- the members of the electoral college for a ¹[Union territory] ²[* * ] to fill a seat or seats in the Council of States shall for the purposes of such selection, maintain in his office in the prescribed manner and form a list of members of that electoral college ³[ * * *]

(3) Copies of the lists referred to in sub-section (1) and (2) shall be made available for sale.

——————–

1. Subs. by the Adaptation of Laws (N0. 2) Order 1956, for “Part C State”..

2. The words or group of such States omitted by Act 27 of 1956, sec. 77.

3. Certain words omitted by Act 49 of 1951, sec 44 and the Fifth Sch.

Section 153. Extension of time for completion of election

¹[Extension of time for completion of election. It shall be competent for the Election Commission for reasons which it consider, sufficient, to extend the time for the completion of any election by making necessary amendments in the notification issued by it under section 30 or subsection (1) of section 39.]

——————–

1. Subs. by Act 27 of 1956, sec. 78 for section 153.

Section 154. Term of office of members of the Council of States

¹[(1) Subject to the Provisions of subsections (2) and (2A), the term of office of a member of Council of States, other that member chosen to fill a casual vacancy, shall be six years.]

(2) ²[* * *] Upon the first constitution of the Council of states the President shall, after constitution with the Election Commission, make by order such provision as he thinks fit for curtailing the term of office of some of the members then chosen in order that, as nearly as may be, one-third of the members holding seats of each class shall retire in every second year thereafter.

³[(2A) In order that, as nearly as may be, one-third of the members may retire on the second day of April, 1958, and on the expiration of every second year thereafter , the President shall, as soon as may be after the commencement of the Constitution (seventh Amendment) Act, 1956 after consultation with the Election Commission make by order such provisions as he thinks fit in regard to the terms of office of the members elected under sub-section (2) of section 147.]

(3) A members chosen to fill a casual vacancy shall be chosen to serve for the remainder of his predecessor’s term of office.

——————–

1. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for sub-section (1).

2. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.

3. Ins. by the Adaptation of’ Laws (No. 2) Order, 1956

Section 155. Commencement or the term of office or members of the Council of States

(1) The term of the a member of the Council of’ States whose name is required to be notified iii the Official Gazette under section 71 shall begin on the date of such notification.

(2) The term of office of a member of the Council of States whose finite is not required to be notified under section 71 shall begin on the date of publication of the Official Gazette of the declaration containing the name of such Person is elected under section 67 or of the notification issued tender sub-Clause (i) of clause (1) of article 80 or under any other provision announcing the nomination of such person to the Council of ‘States, is the case may be.

Section 156. Term of office or members or state Legislative Councils

(1) The term of office of a member of the Legislative Council of a State, other than a member chosen to fill a casual vacancy, shall be six years, but upon the first constitution of the Council the Governor ¹[***] shall, after consultation with the Election Commission make by order such provision as he thinks lit for curtaining the term of office of some of the members then chosen in order that, as nearly as may be, one-third of the members holding seats of each class shall retire in every second year thereafter..

(2) A member chosen to fill a casual vacancy shall be chosen to serve for the remainder of his predecessor’s term of office.

——————–

1. The words “or the Rajpramukh, as the case may be” omitted by the Adaptation of Laws (No. 2) Order, 1056.

Section 157. Commencement of the term of office of members of the Legislative Councils

(1) The term of office of a member of the Legislative Council of a State whose name is required to notified in the Official Gazette under ¹[section 74] shall begin on the date of such notification.

(2) The term of office of a member of the Legislative Council of a State whose name is not required to be notified under ¹[section 74] shall begin on the date of publication in the official Gazette of the declaration containing the name of such person as elected under section 67 or of the notification issued under sub-clause (e) of clause (3) of article 171, announcing the nomination of such person to the Council, as the case may be.

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1. Subs. by Act 27 of 1956, sec, 70, for “section 75”.

Section 158. Return or forfeiture or candidate’s deposit

¹[Return or forfeiture or candidate’s deposit. (1) The deposit made under section 34 or under that section read with subsection (2) of section 39 shall either be returned to the person talking it or his legal representative or be forfeited to the appropriate authority in accordance’s with the provisions of this section.

(2) Except in cases hereafter mentioned in this section, the deposit shall be returned as soon as practicable after the result of the election is declared.

(3) If the candidate is not shown in the list of contesting candidates, or if lie dies before the Commencement of the poll, the deposit shall be returned as soon as practicable after the publication of the list or a their his death, is the case may be.

(4) Subject to the provisions of subsection (3), the deposit shall be forfeited if at all election where a poll has in taken, the candidate is not elected and the number of valid votes polled by him does not exceed one-sixth of the total number of valid votes polled by all the candidates or in the case of election of more than one member at the election, one-sixth of the total number of valid votes so polled divided by the members of members to be elected:

Provided that where at in election held in accordance with the system of proportional representation by means of the single transferable vote, a candidate is not elected, the deposit made by him shall be forfeited if he does not get more than one-sixth of the number of votes prescribed in this behalf as sufficient to secure the return of a candidate.

(5) Notwithstanding anything in subsection (2), (3) and (4), -

(a) If at a general election, the candidate is a contesting candidate in more than one Parliamentary constituency or in more their one assembly constituency, not more than one of the deposits shall be returned, and the other shall be forfeited.

(b) If the candidate is a contesting candidate at all election in more than one council constituency or it all election in a Council constituency and at an election by the members of the State Legislative Assembly to fill seats in file Legislative Council, not more than one of the deposits shall be returned, and the others shall be forfeited.]

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1. Subs. by Act 58 of 1958, sec. 39, for section 158.

Section 159. Staff of certain authorities to be made available for election work

¹[Staff of certain authorities to be made available for election work. (1) The authorities specified in subsection (2) shall, when so requested by a Regional Commissioner appointed under clause (4) of article 324 or the Chief Electoral Officer of the State, make available to any returning officer Such staff as may be necessary for the performance of any duties in connection with air election.

(2) The following shall be the authorities for the purposes of sub-section (1), namely:

(i) Every local authority;

(ii) Every university established or incorporated by or under a Central, Provincial or State Act;

(iii) A Government company as defined in section 617 of the Companies Act, 1956 (I of 1956);

(iv) Any other institution, concern or undertakings which is established by or under a Central, Provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government.]

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l. Subs. by Act 12 of 1998, sec. 2 (w.e.f. 23-12-1997).

Section 160. Requisitioning of Premises, vehicles, etc., for election purposes

(1) If it appears to the State Government that in connection with an election held within the State–

(a) Any premises are needed or are likely to be needed for the purpose of being used as a poling station or for the storage of ballot boxes after a poll has been taken, or

(b) Any vehicle, vessel or animal is needed or is likely to be needed for the purpose of transport of ballot boxes to or from any polling station, or transport of members of the police force for maintaining order during in the conduct of such election, or transport of any officer or other person for performance of any duties in connection with such election,

The Government may by order in writing requisition such premises, or such vehicle, vessel or animal, as the case may be, and may make such further orders as may appear to it to be necessary or expedient in connection with the requisitioning:

Provided that no vehicle, vessel of animal which is being lawfully used by a candidate or his agent for any purpose connected with the election of such candidate shall be requisitioned under this subsection until the completion of the poll at Such election.

(2) The requisition shall be effected by an order in writing addressed to the person deemed by the State Government to be the owner or person in possession of the property, and such order shall be served in the prescribed manner on the person to whom it is addressed.

(3) Whenever any property is requisitioned under sub-section (1), the period of such requisition shall not extend beyond the period for which such property is required for any of the purposes mentioned in that sub-section.

(4) In the section–

(a) “Premises” means any land, building, or part of a building and includes a hut, shed or other structure or any part thereof-,

(b) “Vehicle” means any vehicle used or capable of being used for the ‘purpose of road transport, whether propelled by mechanical power of otherwise.

Section 161. Payment of compensation

(1) Whenever in pursuance of section 160 the State Government requisitions any premises, there shall be paid to the persons interested compensation the amount of which shall be determined by taking into consideration the following, namely: -

(i) The rent payable in respect of the premises or if no rent is so payable, the rent payable for similar premises in the locality;

(ii) If in consequence of the requisition of the premises the person interested is compelled to chance his residence or place of business, the reasonable expenses (if any) incidental to such change:

Provided that where any person interested being a aggrieved by the amount of compensation so determined makes all application within the prescribed time to the State Government for refer in a the matter to all arbitrator, the amount of compensation to be paid shall be Such as the arbitrator appointed in this behalf by the State Government may determine:

Provided further that where there is any dispute as to the title to receive the compensation or as to the apportionment of the amount of compensation, the State Government to shall refer it all arbitrators appointed in this behalf by the Government for determination and shall be determined in accordance with the decision of such arbitrator.

Explanation.In this subsection, the expression “person interested” means the person who was in actual possession of the premises requisitioned under section 160 immediately before the requisition, or where no person was in such actual possession, the owner of such premises.

(2) Whenever in Pursuance of section 160 the State Government requisitions any vehicle, vessel or animal, there shall be paid to the owner thereof compensation the amount of which shall be determined by the State Government on the basis of fares or rates prevailing in the locality for the hire Of Such vehicle, vessel or animal:

Provided that where the owner Of Such vehicle, vessel or animal being aggrieved by the amount of compensation so determined makes an application wit in the prescribed time to the State Government for referring the matter to an arbitrator, the amount of compensation to be paid shall be such as the arbitrator appointed in this behalf by the State Government may determine:

Provided further that where immediately before the requisitioning the vehicle or vessel was by virtue of the purchase agreement in the possession of a person other than the owner, the amount determined under this sub-section as the total compensation payable in respect of the requisition shall be apportioned between that person and the owner in such manner as they may agree upon, and in default of agreement, in such manner as all arbitrator appointed by the State Government in this behalf may decide.

Section 162. Power to obtain information

The State Government may with a view to requisition , any property under section 160 or determined the compensation payable under section 161, by order, require any person to furnish to Such authority as relay he specified in the order such information in his possession relating to Such property as may be so specified.

Section 163. Powers of entry into and inspection of premises, etc

(1) Any person authorized in this behalf by the State Government may enter into any premises and inspect such premises and any vehicle, vessel or airline therein for the Purpose of determining) whether, and if so in what manner, all order under section 160 Should be made in relation to Such premises, vehicle, vessel or annual, or with a view to securing,, compliance with any order made under, that section.

(2) In this section the expressions “premises” and “vehicle” have the same meanings as in section 160.

Section 164. Eviction from requisitioned premises

(1) Any person remaining in possession of any requisitioned premises in contravention of any order made under section 160 may be summarily evicted from file premises by any officer empowered by the State Government in this behalf.

(2) Any officer so empowered may, after giving to any woman not appearing in public reasonable warning and facility to withdraw, remove or opera ally lock or bolt, break open any door of any building, or do any other act necessary for effecting such eviction.

Section 165. Release or premises from requisition

(1) When any premises requisitioned under section 160 are to be released from requisitioning the possession thereof shall be delivered to the person from whom possession was taken at the time when the premises were requisitioned, or if there were no such person, to the person declared by the State Government to be the owner of such premises, and such delivery of possession shall he a full discharge of the State Government from all liabilities in respect of such delivery, but shall not prejudice any rights in respect of the premises which any other person may be entitled by due process of law to enforce against the person to whom possession of the premises is do delivered.

(2) Where the person to whom possession of any premises requisitioned under section 160 is to be given under sub-section (1) cannot be found or is not readily ascertainable or has no agent or any other person empowered to accept delivery on his behalf, the State Government shall cause a notice declaring that such premises are released 1roin requisition to be affixed on some conspicuous part of such premises and publish the notice in the Official Gazetted.

(3) When a notice referred to in subsection (2) is published in the Official Gazette, the premises specified in Such notice shall cease to be subject to requisition on and from the date of such publication and be declared to have been delivered to the person entitled to possession thereof, and the State Government shall not be liable for any compensation or other claim in respect of such premises for any period after the said date.

Section 166. Delegation or Functions of the State Government with regard to requisitioning

The State Government may, by notification in the Official Gazette, direct that any powers conferred or any duty imposed on that Government by any of the provisions of sections 160 to 165 shall, under such conditions, if any, as may he specified in the direction, be exercised or discharged by such officer or class of officers, as may be so specified.

Section 167. Penalty for contravention or any order regarding requisitioning

If any person contravenes any order made under section 160 or section 162, lie shall be punishable with imprisonment for a term, which may extend to one year or with fine or with both.

Section 168. Special provisions with respect to Rulers or former Indian States

Rep. by the Rulers of Indian States (Abolition of Privileges) Act, 1972 (.54 of 1972), sec. 4 (w.e.f 9-9-1972).

Section 169. Power to make rules

(1) The Central Government may, after consulting the Election Commission, by notification in the Official Gazette, make rules¹ for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters, namely–

(a) The duties of presiding officers and polling officer at polling stations;

(b) The checking of voters by reference to the electoral roll;

(c) The manner in which votes are to be given both generally and in the case of illiterate voters or voters under physical or other disability;

(d) The manner in which votes are to he given by in presiding officer, polling officer, polling agent or any other person, who being an elector for a constituency is authorised or appointed for duty it polling station at which he is not entitled to vote;

(e) The procedure to be followed in respect of the tender of vote by a person representing himself to be in elector after another person has voted is such elector;

²[(ee) The manner of giving and recording of votes by means of voting machines and the procedure as to voting to be followed at polling stations where such machines ire used;]

(f) The procedure as to voting to be followed at elections held in accordance with the system of proportional representation by means of the single transferable vote;

(g) The scrutiny and counting of votes including cases in which a recount of the votes may be made before the declaration of the result of the election;

²[(gg) The procedure is to counting of votes recorded by means of voting machines;]

(h) The safe custody of ³[ballot boxes, voting machines], ballot papers and other election papers, the period for which such papers shall be preserved and the inspection and production of such papers;

(i) Any other matter required to be prescribed by this Act.

⁴[(3) Every rule made under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or ⁵[in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made], the rule shall thereafter have effect only in such modified form or be of in effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to validity of anything previously done under the rule.]

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1. See, the Conduct of’ Infections Rules, 1961

2. Ins. by Act I of 1999, sec. 16 (w.e.f. 15-3-1089).

3. Subs. by Act I of 1989, sec. 16, for “ballot boxes” (w.e.f. 15-3-1989).

4. Subs. by Act 40 of 1961, sec. 29, for subsection (3) (w.e.f. 20-9-196l), which was ins. by Act 27 of 1956, sec. 82,

5. Subs. by Act 4 of 1986, sec. 2 and Sch. (w.e.f. 15-5-1986).

Section 170. Jurisdiction of civil courts barred

No civil court shall have jurisdiction to question the legality of any action taken or of any decision given by the returning officer or by any other person appointed under this Act in connection with an election.

Section 171. Repeal of Act 39 of 1920

Rep. by the repealing and Amending Act, 1957 (36 of 1957) sec. 2 and Sch. II

Right To Education Act

November 30, 2014

Chapter 1: Prelimnary

No. 35 of 2009

[26th August, 2009]

An Act to provide for free and compulsory education to all children of the age of six to fourteen years.

Be it enactment by Parliament in the Sixtieth Year of the Republic of India as follows:–

Section 1. Short Title Extent and commencement

(1) This Act may be called the Right of Children to Free and Compulsory Education Act, 2009.

(2) It shall extend to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as he Central Government may, by notification in the Official Gazette, appoint.

Section 2. Definitions

In this Act, unless the context otherwise requires,–

(a)”appropriate Government” means—

(i) in relation to a school established, owned or controlled by the Central Government, or the administrator of the Union territory, having no legislature, the Central Government;

(ii) in relation to a school, other than the school referred to in sub-clause (i), established within the territory of —-

(A) a State, the State Government;

(B) a Union territory having legislature, the Government of that Union territory;

(b)”capitation fee” means any kind of donation or contribution or payment other than the fee notified by the school;

(c)”child” means a male or female child of the age of six to fourteen years;

(d)”child belonging to disadvantaged group” means a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification;

(e)”child belonging to weaker section” means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification;

(f)”elementary education” means the education from first class to eighth class:

(g)”guardian”, in relation to a child, means a person having the care and custody of that child and includes a natural guardian or guardian appointed or declared by a court or a statute;

(h)”local authority” means a Municipal Corporation or Municipal Council or Zila Parishad or Nagar Panchyat or Panchyat, by whatever name called, and includes such other authority or body having administrative control over the school or empowered or under any law for the being in force to function as a local authority in any city, town or village:

(i)”National Commission for Protection of Child Rights” means the National Commission for Protection of Child Rights constituted under section 3 of the Commissions for Protection of Child Rights Act, 2005; (4 of 2006)

(j)”notification” menas a notification published in the Official Gazette;

(k)”parent” means either the natural or step or adoptive father or mother of a child;

(l)”Schedule” means any recognised school imparting elementary education and includes—

(i) a school established, owned or controlled by the appropriate Government or a local authority;

(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;

(iii) a scholl belonging to specified category; and

(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;

(o)”screening procedure” means the method of selection for admission of a child, in preference over another, other than a random method;

(p)”specified category”, in relation to a school, means a school known as Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik School or any other school having a distinct character which may be specified, by notification, by the appropriate Government;

(g)”State Commission for Protection of Child Rights” means the State Commissions for Protection of Child Rights Act. 2005 (4 of 2006)

Chapter II – Right To Free And Compulsory Education

Section 3. Right of child to free and compulsory education

(1) Every child of the age of six to fourteen years shall have a right to free and compulsory education in a neighborhood school till completion of elementary education.

(2) For the purpose of sub-section (1), no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education:

Provided that a child suffering from disability, as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1996 shall have the right to pursure free and compulsory elementary education in accordance with the provisions of Chapter V of the said Act. (1 of 1996)

Section 4. Special provisions for children not admitted to, or who have not completed elementary education

Where a child above six years of age has not been admitted in any school or though admitted, could not complete his or her elementary education, then, he or she shall be admitted in a class appropriate to his or her age;

Provided that where a child is directly admitted in a class appropriated to his or her age, then, he or she shall, in order to be at par with others, have a right to receive special training, in such manner, and within such time-limits, as may be prescribed:

Provided further that a child so admitted to elementary education shall be entitled to free education till completion of elementary education even after fourteen years.

Section 5. Right of transfer to other school

(1) Where in a school, there is no provision for completion of elementary education, a child shall have a right to seek transfer to any other school, excluding the school specified sub-clauses (iii) and (iv) of clause (n) of section 2, for completing his or her elementary education.

(2) Where a child is required to move from one school to another, either within a State or outside, for any reason whatsoever, such child shall have a right to seek transfer to any other school, excluding the school specified in sub-clauses (iii) and (iv) of clause (n) of section 2, for completing his or her elementary education.

(3) For seeking admission in such other school, he Head-teacher or in-charge of the school where such child was last admitted, shall immediately issue the transfer certificate.

Provided that delay in producing transfer certificate shall not be a ground for either delaying or denying admission in such other school:

Provided further that the Head – teacher or in-charge of the school delaying issuance of transfer certificate shall be liable for disciplinary action under the service rules applicable to him or her.

Chapter III –  Duties of Appropriate Government, Local Authority And Parents

Section 6. Duty of appropriate Government and local authority to establish school

For carrying out the provisions of this Act, the appropriate Government and the local authority shall establish, within such area is limits of neighborhood, as may be prescribed, a school, where it is not so established, within a period of three years from the commencement of this Act.

Section 7. Sharing of financial and other responsibilites

(1) The Central Government and the State Governments shall have concurrent responsibility for providing funds for carrying out the provisions of this Act.

(2) The Central Government shall prepare the estimates of capital and recurring expenditure for the implementation of the provisions of the Act.

(3) The Central Government shall provide to the State Government, as grants-in-aid of revenues, such percentage of expenditure referred to in sub-section (2) as it may determine, from time to time, in consultation with the State Government.

(4) The Central Government may make a request to the President to make a reference to the Finance Commission under sub-clause (d) of clause (3) of article 280 to examine the need for additional resources to the provided to any State Government so that the said State Government may provide its share of funds for carrying out the provisions of the Act.

(5) Notwithstanding anything contained in sub-section (4), the State Government shall, taking into consideration the sums provided by the Central Government to State Government under sub-section (3), and its other resources, be responsible to provide funds for implementation of the provisions of the Act,.

(6) The Central Government shall —

(a) develop a framework of national curriculum with the help of academic authority specified under section 29;

(b) develop and enforce standards for training of teachers;

(c) provide technical support and resources to the State Government for promoting innovations, researches, planning and capacity building.

Section 8. Duties of appropriate Government

The appropriate Government shall—

(a) provide free and compulsory elementary education to every child:

Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school.

Explanation – The term “compulsory education” means obligation of the appropriate Government to—

(i) provide free elementary education to every child of the age of six to fourteen years; and

(ii) ensure compulsory admission, attendance and completion of elementary education by every child of the age of six to fourteen years;

(b) ensure availbility of a neighborhood school as specified in section 6;

(c) ensure that the child belonging to weaker section and the child belonging to disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds;

(d) provide infrastructure including school building, teaching staff and learning equipment;

(e) provide special training facility specified in section 4;

(f) ensure and monitor admission, attendance and completion of elementary education by every child;

(g) ensure good quality elementary education conforming to the standards and norms specified in the Schedule;

(h) ensure timely prescribing of curriculum and courses of study for elementary education; and

(i) provide training facility for teachers.

Section 9. Duties of local authority

Every local authority shall—

(a) provide free and compulsory elementary education to every child:

Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school;

(b) ensure availability of a neighborhood school as specified in section 6;

(c) ensure that the child belonging to weaker section and the child belonging to disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds;

(d) maintain records of children up to the age of fourteen years residing within its jurisdiction, in such manner as may be prescribed;

(e) ensure and monitor admission, attendance and completion of elementary education by every child residing within its jurisdiction;

(f) provided infrastructure including school building, teaching staff and learning material;

(g) provide special training facility specified in section 4;

(h) ensure good quality elementary education conforming to the standards and norms specified in the Schedule;

(i) ensure timely prescribing of curriculum and courses of study for elementary education;

(j) provide training facility for teachers;

(k) ensure admission of children of migrant families;

(l) monitor functioning of schools within its jurisdiction; and

(m) decide the academic calendar.

Section 10. Duty of parents and guardian

It shall be the duty of every parent or guardian to admit or cause to be admitted his or her child or ward, as the case may be, to an elementary education in the neighbourhood school.

Section 11. Appropriate Government to provide for pre-school education

With a view to prepare children above the age of three years for elementary education and to provide early childhood care and education for all children until they complete the age of six years, the appropriate Government may make necessary arrangement for providing free pre-school education for such children.

Chapter  IV – Responsibilities Of Schools And Teachers

Section 12. Extent of school’s responsibility for free and compulsory education

(1) For the purposes of this Act, a school,–

(a) specified in sub-clause (i) of clause (n) of section 2 shall provide free and compulsory elementary education to all children admitted therein;

(b) specified in sub-clause (ii) of clause (n) of section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants to received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent;

(c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall admit in class I, to the extent of at least twenty-five per cent, of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion:

Provided further that where a school specified in clause (n) of section 2 imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education.

(2) The school specified in sub-clause (iv) of clause (n) of section 2 providing free and compulsory elementary education as specified in clause (c) of sub – section (i) shall be reimbursed expenditure so incurred by it to the extention of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed:

Provided that such reimbursement shall not exceed pre-child-expenditure incurred by a school specified in sub-clause (i) of clause (n) of section 2:

Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate such school shall not be entitled for reimbursement to the extent of such obligation.

(3) Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may be.

Section 13. No capitation fee and screening procedure for admission

(1) No school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure.

(2) Any school or person, if in contravention of the provisions of sub-section (1),–

(a) receives capitation fee, shall be punishable with fine which may extend to ten times the capitation fee charged;

(b) subjects a child to screening procedure, shall be punishable with fine which may extend to twenty-five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contraventions.

Section 14. Proof of age for admission

(1) For the purposes of administration to elementary education, the age of a child shall be determined on the basis of the birth certificate issued in accordance with the provisions of the Births, Deaths and Marriages Registration Act, 1886 or on the basis of such other document, as may be prescribed.

(2) No child shall be denied admission in a school for lack of age proof.

15. No denial of admission

A child shall be admitted in a school at the commencement of the academic year or within such extended period as may be prescribed:

Provided that no child shall be denied admission if such admission is sought subsequent to the extended period:

Provided further that any child admitted after the extended period shall complete his studies in such manner as may be prescribed by the appropriate Government.

Section 16. Prohibition of holding back and expulsion

No child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education

Section 17. Prohibition of physical punishment and mental harassment to child

(1) No child shall be subjected to physical punishment or mental harassment.

(2) Whoever contravenes the provisions of sub-section (1) shall be liable to disciplinary action under the service rules applicable to such person

Section 18. No School to be established without obtaining certificate of recognition

(1) No school, other than a school established, owned or controlled by the appropriate Government or the local authority, shall, after the commencement of this Act, be established or function, without obtaining a certificate of recognition from such authority, by making an application in such form and manner, as may be prescribed.

(2) The authority prescribed under sub – section (1) shall issue the certificate of recognition in such form, within such period, in such manner, and subject to such conditions, as may be prescribed:

Provided that no such recognition shall be granted to a school unless it fulfils norms and standards specified under section 19.

(3) On the contravention of the conditions of recognition, the prescribed authority shall, by an order in writing, withdraw recognition:

Provided that such order shall contain a direction as to which of the neighborhood school, the children studying in the derecognised school, shall be admitted:

Provided further that no recognition shall be so withdrawn without giving an opportunity of being heard to such school, in such manner, as may be prescribed.

(4) With effect from the date of withdrawal of the recognition under sub-section (3), no such school shall continue to function.

(5) Any person who established or runs a school without obtaining certificate of recognition, or continues to run a school after withdrawal of recognition, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.

Section 19. Norms standards school

(1) No school shall be established, or recognised, under section 18, unless it fulfils the norms and standards specified in the Schedule.

(2) Where a school established before the commencement of this Act does not fulfil the norms and standards specified in the Schedule, it shall take steps to fulfil such norms and standards at its own expenses, within a period of three years from the date of such commencement.

(3) Where a school fails to fulfil the norms and standards within the period specified under sub-section (2), the authority prescribed under sub-section (1) of section 18 shall withdraw recognition granted to such school in the manner specified under sub-section (3) thereof.

(4) With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function.

(5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.

Section 20. Power to amend Schedule

The Central Government may, by notification, amend the Schedule by adding to, or omitting therefrom, any norms and standards.

Section 21. School Management Committee

(1) A schoo, other than a school specified in sub-clause (iv) of clause (n) of section 2, shall consitute a School Management Committee consisting of the elected representatives of the local authority, parents or guardians of children admitted in such school and teachers:

Provided that atleast three – fourth of members of such Committee shall be parents or guardians:

Provided further that proportionate representation shall be given to the parents or guardians of children belonging to disadvantaged group and weaker section:

Provided also that fifty per cent. of Members of such Committee shall be women.

(2) The School Management Committee shall perform the following functions, namely:–

(a) monitor the working of the school;

(b) prepare and recommend school development plan;

(c) monitor such other functions as may be prescribed.

Section 22. School Development Plan

(1) Every School Management Committee, constituted under sub-section (1) of section 21, shall prepare a School Development Plan, in such manner as may be prescribed.

(2) The School Development Plan so prepared under sub-section (1) shall be the basis for the plans and grants to be made by the appropriate Government or local authority, as the case may be.

Section 23. Qualifications for appointment and terms and conditions of service of teachers

(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher.

(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:

Provided that a teacher who, at the commencement of this Act, does not possess minimum qualification as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years.

(3) The salary and allowances payable, to, and the terms and conditions of service of, teachers shall be such as may be prescribed.

Section 24. Duties of teachers and redressal of grievances

(1) A teacher appointed under sub-section (1) of section 23 shall perform the following duties, namely:–

(a) maintain regularity and punctuality in attending school;

(b) conduct and complete the curriculum in accordance with the provisions of sub-section (2) of section 29;

(c) complete entire curriculum within the specified time;

(d) assess the learning ability of each child and accordingly supplement additional instructions, if any, as required;

(e) hold regular meetings with parents and guardians and apprise them about the regularity in attendance, ability to learn, progress made in learning and any other relevant information about the child; and

(f) perform such other duties as may be prescribed.

(2) A teacher committing default in performance of duties specified in sub-section (1) , shall be liable to disciplinary action under the service rules applicable to him or her;

Provided that before – taking such disciplinary action, reasonable, opportunity of being heard shall be afforded to such teacher.

(3) The greivances, if any, of the teacher shall be redressed in such manner as may be prescribed.

Section 25. Pupil-Teacher Ration

(1) Within six months from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that the Pupil-Teacher Ratio, as specified in this Schedule, is maintained in each school.

(2) For the purpose of maintaining the Pupil-Teacher Ration under sub-section (1), no teacher posted in a school shall be made to serve in any other school or office or deployed for any non-educational purpose, other than those specified in section 27.

Section 26. Filling up vacancies of teachers

The appointing authority, in relation to a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or by a local authority, shall ensure that vacancy of teacher in a school under its control shall not exceed ten per cent, of the total sanctioned strength.

Section 27. Prohibition of deployment of teacher for non-educational purposes

No teacher shall be deployed for any non-educational purposes other than the decennial population cencus, disaster relief duties or duties relating to elections to the local authority or the State Legislatures or Parliament, as the case may be.

28. Prohibition of private tution by teacher

No teacher shall engage himself or herself in private tution or private teaching activity.

Chapter V – Curriculum And Completion Of Elementary Education

Section 29. Curriculum and evaluation procedure

(1) The curriculum and the evaluation procedure for elementary education shall be laid down by an academic authority to be specified by the appropriate Government, by notification.

(2) The academic authority, while lying down the curriculum and the evaluation procedure under sub-section (1), shall take into consideration the following, namely:–

(a) conformity with the values enshrined in the Constitution;

(b) all round development of the child;

(c) building up child’s knowledge, potentiality and talent;

(d) development of physical and mental abilities to the fullest extent;

(e) learning through activities, discovery and exploration in a child friendly and child-centered manner;

(f) medium of instructions shall, as far as practicable, be in child’s mother tongue;

(g) making the child free of fear, trauma and anxiety and helping the child to express views freely;

(h) comprehensive and continuous evaluation of child’s understanding of knowledge and his or her ability to apply the same

Section 30. Examination and completion certificate

(1) No child shall be required to pass any Board examination till completion of elementary education.

(2) Every child completing his elementary education shall be awarded a certificate, in such form and in such manner, as may be prescribed.

Chapter VI – Protection of Right of Children

Section 31. Monitoring of child’s right to education

(1) The National Commission for Protection of Child Rights constituted under section 3, or as the case may be, the State Commission for Protection of Child Rights constituted under section 17, of the Commissions for Protection of Child Rights Act, 2005, shall, in addition to the functions assigned to them under that Act, also perform the following functions, namely:–

(a) examine and review the safeguards for rights provided by or under this Act and recommend measures for their effective implementation;

(b) inquire into complaints relating to child’s right to free and compulsory education: and

(c) take necessary steps as provided under sections 15 and 24 of the said Commissions for Protection of Child Rights Act.

(2) The said Commissions shall, while inquiring into any matters relating to child’s right to free and compulsory education under clause (c) of sub-section (1), have the same powers as assigned to them respectively under sections 14 and 24 of the said Commissions for Protection of Child Rights Act.

(3) Where the State Commission for Protection of Child Rights has not been constituted in a State, the appropriate Government may, for the purpose of performing the functions specified in clauses (a) to (c) of sub-section (1), constitute such authority, in such manner and subject to such terms and conditions, as may be prescribed.

Section 32. Redressal of grievances

(1) Notwithstanding anything contained in section 31, any person having any grievance relating to the right of a child under this act may make a written complaint to the local authority having jurisdiction.

(2) After receiving the complaint under sub-section (1), the local authority shall decided the matter within a period of three months after affording a reasonable opportunity of being heard to the parties concerned.

(3) Any person aggrieved by the decision of the local authority may prefer an appeal to the State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be.

(4) The appeal preferred under sub-section (3) shall be decided by State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be, as provided under clause (c) of sub-section (1) of section 31.

Section 33. Constitution of National Advisory Council

(1) The Central Government shall constitute, by notification, a National Advisory Council, consisting of such number of Members, not exceeding fifteen, as the Central Government may deem necessary, to be appointed from amongst persons having knowledge and practical experience in the field of elementary education and child development.

(2) The functions of the National Advisory Council shall be to advice the Central Government on implementation of the provisions of the Act in an effective manner.

(3) The allowances and other terms and conditions of the appointment of Members of the National Advisory Council shall be such as may be prescribed.

Section 34. Constitution of State Advisory Council

(1) The State Government shall constitute, by notification, a State Advisory Council consisting of such number of Members, not exceeding fifteen, as the State Government may deem necessary, to be appointed from amongst persons having knowledge and practical experience in the field of elementary education and child development.

(2) The functions of the State Advisory council shall be to advise the State Government on implementation of the provisions of the Act in an effective manner.

(3) The allowances and other terms and conditions of appointment of Members of the State Advisory Council shall be such as may be prescribed.

Chapter VII – Miscellaneous

Section 35. Power to issue directions

(1) The Central Government may issue such guidelines to the appropriate Government or, as the case may be, the local authority, as it deems fit for the purposes of implementation of the provisions of this Act.

(2) The appropriate Government may issue guidelines and give such directions, as it deems fit, to the local authority or the School Management Committee regarding implementation of the provisions of this Act.

(3) The Local authority may issue guidelines and give such directions, as it deems fit, to the School Management Committee regarding implementation of the provisions of this Act.

Section 36. Previous sanction for presecution

No persecution for offence punishable under sub-section (2) of section 13, sub-section (5) of section 18 and sub-section (5) of section 19 shall be instituted except with the previous sanction of an officer authorised in this behalf, by the appropriate Government, by notification.

Section 37. Protection of action taken in good faith

No suit or other legal proceeding shall lie against the Central Government, the State Government, the National Commission for Protection of Child Rights, the State Commission for Protection of Child Rights, the local authority, the School Management Committee or any person, in respect of anything which is in good faith done or intended to be done, in pursuance of this Act, or any rules or order made there under.

Section 38. Power of appropriate Government to make rules

(1) The appropriate Government may, by notification, make rules, for carrying out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:–

(a) the manner of giving special training and the time-limit thereof, under first proviso to section 4;

(b) the area or limits for establishment of a neighborhood school, under section 6;

(c) the manner of maintenance of records of children up to the age of fourteen years, under clause (d) of section 9;

(d) the manner and extent of reimbursement of expenditure, under sub-section (2) of section 12;

(e) any other document for determining the age of child under sub-section (1) of section 14;

(f) the extended period for admission and the manner of completing study of admitted after the extended period, under section 15;

(g) the authority, the form and manner of making application for certificate of recognition, under sub-section (1) of section 18;

(h) the form, the period, the manner and the conditions for issuing certificate of recognition, under sub-section (2) of section 18;

(i) the manner of giving opportunity of hearing under second proviso to sub-section (3) of section 18;

(j) the other functions to be performed by School Management Committee under clause (d) of sub-section (2) of section 21;

(k) the manner of preparing School Development Plan under sub-section (1) of section 22;

(l) the salary and allowances payable to, and the terms and conditions of service of, teacher, under sub-section (3) of section 23;

(m) the duties to be performed by the teacher under clause (f) of sub-section (1) of section 24;

(n) the manner of redressing grievances of teachers under sub-section (3) of section 24;

(o) the form and manner of awarding certificate for completion of elementary education under sub-section (2) of section 30;

(p) the authority, the manner of its consititution and the terms and conditions therefor, under sub-section (3) of section 31;

(q) tha allowances and other terms and conditions of appointment of Members of the National Advisory Council under sub-section (3) of section 33;

(r) the allowances and other terms and conditions of appointment of Members of the State Advisory Council under sub-section (3) of section 34;

(3) Every rule made under this Act and every notification issued under sections 20 and 23 by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may, be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made, the rule or notification shall thereafter have effect only in such modified form or of no effect, as the case may be; so, however, that any such modification or ammulment shalll be without prejudice to the validity of anything previously done under that rule or notification.

(4) Every rule or notification made by the State Government under this Act shall be laid, as soon as may be after it is made; before the State Legislatures.

The Schedule

(See Sections 19 and 25)

Norms And Standards For A School

______________________________________________________

Sl No.        Item                                  Norms and Standards

______________________________________________________

Special Marriage Act

November 30, 2014

Section 1. Short title, extent and commencement

[Act No. 43 of 1954]¹

[9th October, 1954]

An Act to provide a special form marriage in certain cases, for the registration of such and certain other marriages and for divorce.

Be it enacted by Parliament in the Fifth Year of the Republic of India as follows:-

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1. The Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963 and Pondicherry by Reg. 7 of 1963.

(1) This Act may be called the Special Marriage Act, 1954.

(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to citizens of India domiciled in the territories to which this Act extends who are ¹[in the State’s, of Jammu and Kashmir].

(3) It shall come into force on such ²date, as the Central Government may, by notification in the Official Gazette, appoint.

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1. Subs. For word “outside the said territories” by Act No. 33 of 1969, w.e.f. 31-8-1969.

2. Became enforceable on 1-1-1955, vide S.R.O. 3606, dated 17th December, 1954.

Section 2. Definitions

In this Act, unless the context otherwise requires,-

¹[* * *]

(b) “Degrees of prohibited relationship”-a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship;

Explanation I. -Relationship includes, -

(a) Relationship by half or uterine blood as well as by full blood;

(b) Illegitimate blood relationship as well as legitimate;

(c) Relationship by adoption as well as by blood; and all terms of relationship in this Act shall be construed accordingly.

Explanation II. –”Full blood” and “half blood”-two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives.

Explanation III.-”Uterine blood” two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.

Explanation IV.-In explanations II and III, “ancestor” includes the father and ancestress” the mother;

²[(c) [* * *]

(d) “District” in relation to a Marriage Officer, means the area for which he is appointed as such under sub-section (1) or sub-section (2) of Section 3;

³[(e) “District court” means, in any area for which there is a city civil court, that court, and in any other area, the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government by notification in the Official Gazette as having jurisdiction in respect of the matters dealt with in this Act;]

(f) “Prescribed” means prescribed by rules made under this Act;

⁴[(g) “State Government”, in relation to a Union territory, means the administrator thereof.]

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1. Cl. (a) omitted by Act No. 33 of 1969, w.e.f. 31-8-1969.

2. Cl. (c) omitted by Act No. 33 of 1969, w.e.f. 31-8-1969.

3. Substituted by Act 68 of 1976, w.e.f. 27-5-1976.

4. Substituted by the Adaption of Laws (No.3) Order, 1956.

Section 3. Marriage Officers

(1) For the purposes of this Act, the State Government may, by notification in the Official Gazette, appoint one or more Marriage Officers for the whole or any part of the State.

¹[(2) For the purposes of this Act, in its application to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir, the Central Government may, by notification in the Official Gazette, specify such officers of the Central Government as it may think fit to be the Marriage Officers for the State or any part thereof.]

——————–

1. Subs. by Act No. 33 of 1969, w.e.f. 31-8-1969.

Chapter II Solemnization of Special Marriages

Section 4. Conditions relating to solemnization of special marriages

Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:

(a) Neither party has a spouse living;

¹[(b) Neither party-

(i) Is incapable of giving a valid consent to it in consequence of unsoundness mind; or

(ii) Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(iii) has been subject to recurrent attacks of insanity ²[* * *]

(c) The male has completed the age of twenty-one years and the female the age of eighteen years;

³[(d) The parties are not within the degrees of prohibited relationship;

Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, not withstanding that they are within the degrees of prohibited relationship; and ]

⁴[(e) Where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.]

⁵[Explanation. -In this section, “customs”, in relation to a person belonging to any tribe, community, group or family, means any rule which the State Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe, community, group or family;

Provided that no such notification shall be issued in relation to the members of any tribe, community, group of family,-unless the State Government is satisfied-

(i) That such rule has been continuously and uniformly observed for a long time among those members;

(ii) That such rule is certain and not unreasonable or opposed to public policy; and

(iii) That such rule, if applicable only to a family. has not been discontinued by the family.]

——————–

1. Subs. by Act No. 68 of 1976, w.e.f. 27-5-1976.

2. The words “or epilepsy” omitted by Act 39 of 1999, w.e.f. 29-12-1999.

3. Subs. by Act No. 32 of 1963, w.e.f. 22-9-1963.

4. Subs. by Act No. 33 of 1969, w.e.f. 31-9-1963.

5. Ins. by Act No. 32 of 1963, w.e.f. 22-9-1963.

Section 5. Notice of intended marriage

When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least on of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.

Section 6. Marriage Notice Book and publication

(1) The marriage Officer shall keep all notices given under Section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at al reasonable times, without fee, by any person desirous of inspecting the same.

(2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.

(3) Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the Marriage Officer to whom the notice has been given under section 5, transmitted to the Marriage Officer of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.

Section 7. Objection to marriage

(1) Any person may, before the expiration of thirty days from the date on which any such notice has been published under sub-section (2) of section 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in section 4.

(2) After the expiration of thirty days from the date on which notice of an intended marriage has been published under sub-section (2) of section 6, the marriage may be solemnized, unless it has been previously objected to under sub-section (1).

(3) The nature of the objection shall be recorded in writing by the Marriage Officer in the Marriage Notice Book, be ready over and explained, if necessary, to the person making the objection and shall be signed by him or on his behalf.

Section 8. Procedure on receipt of objection

(1) If an objection is made under section 7 to an intended marriage, the Marriage Officer shall not solemnize the marriage until he has inquired into the matter of the objection and is satisfied that it ought not to prevent the solemnization of the marriage or the objection is withdrawn by the person making it; but the Marriage Officer shall not take more than thirty days from the date of the objection for the purpose of inquiring into the matter of the objection and arriving at a decision.

(2) If the Marriage Officer upholds the objection and refuses to solemnize the marriage, either party to the intended marriage may, within a period of thirty days from the date of such refusal, prefer an appeal to the district court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district court on such appeal shall be final, and the Marriage Officer shall act in conformity with the decision of the court.

Section 9. Powers of Marriage Officers in respect of inquiries

(1) For the purpose of any inquiry under section 8, the Marriage Officer shall have all the powers vested in a civil court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of witnesses and examining them on oath;

(b) discovery and inspection;

(c) compelling the production of documents;

(d) reception of evidence on affidavits; and

(e) issuing commissions for the examination of witnesses; and any proceeding before the Marriage Officer shall be deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code (Act XLV of 1860).

Explanation. – For the purpose of enforcing the attendance of any person to give evidence, the local limits of the jurisdiction of the Marriage Officer shall be the local limits of his district.

(2) If it appears to the Marriage Officer that the objection made to an intended marriage is not reasonable and has not been made in good faith he may impose on the person objecting costs by way of compensation not exceeding one thousand rupees and award the whole or any part thereof to the parties to the intended marriage, and any order for costs so made may be executed in the same manner as a decree passed by the district court within the local limits of whose jurisdiction the Marriage Officer has his office.

Section 10. Procedure on receipt of objection by Marriage Officer abroad

Where an objection is made under Section 7 to a Marriage Officer ¹[in the State of Jammu and Kashmir in respect of an intended marriage in the State], and the Marriage Officer, after making such inquiry into the matter as he thinks fit, entertains a doubt in respect thereof, he shall not solemnize the marriage but shall transmit the record with such statement respecting the matter as he thinks fit to the Central Government, and the Central Government, after making such inquiry into the matter and after obtaining such advice as it thinks fit, shall give its decision thereon in writing to the Marriage Officer who shall act in conformity with the decision of the Central Government.

——————–

1. Subs. by Act No. 33 of 1969, w.e.f. 31-8-1969.

Section 11. Declaration by parties and witnesses

Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer.

Section 12. Place and form of solemnization

(1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed.

(2) The marriage may be solemnized in any form which the parties may choose to adopt:

Provided that it shall not be complete and binding on the parties, unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,- “I, (A), take thee (B), to be my lawful wife (or husband).

Section 13. Certificate of marriage

(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.

(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.

Section 14. New notice when marriage not solemnized within three months

Whenever a marriage is not solemnized within three calendar months from the date on which notice thereof has been given to the Marriage Officer as required by section 5, or where an appeal has been filed under sub-section (2) of section 8, within three months from the date of the decision of the district court on such appeal or, where the record of a case has been transmitted to the Central Government under section 10, within three months from the date of decision of the Central Government, the notice and all other proceedings arising therefrom shall be deemed to have lapsed, and no Marriage Officer shall solemnize the marriage until a new notice has been given in the manner laid down in this Act.

Chapter III Registration of Marriages celebrated in other forms

Section 15. Registration of marriages celebrated in other forms

Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the ¹Special Marriage Act, 1872, (III of 1872) or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:

(a) A ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;

(b) Neither party has at the time of registration more than one spouse living;

(c) Neither party is an idiot or a lunatic at the time of registration;

(d) The parties have completed the age of twenty-one years at the time of registration;

(e) The parties are not within the degrees of prohibited relationship;

Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and

(f) The parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.

——————–

1. Rep. by this Act.

Section 16. Procedure for registration

Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this Chapter, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objections and after hearing any objection received within the period, shall, if satisfied that all the conditions mentioned is section 15 are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the form specified in the Fifth Schedule, and such certificate shall be signed by the parties to the marriage and by three witnesses.

Section 17. Appeals from orders under section 16

Any person aggrieved by any order of a Marriage Officer refusing to register a marriage under this Chapter may, within thirty days from the date of the order, appeal against that order to the district court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district court on such appeal shall be final, and the Marriage Officer to whom the application was made shall act in conformity with such decision.

Section 18. Effect of registration of marriage under this Chapter

Subject to the provisions contained in sub-section (2) of section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under the Chapter, the marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (Whose names shall also be entered n the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents:

Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents.

Chapter IV Consequences of Marriage under this Act

Section 19. Effect of marriage on member of undivided family

The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from such family.

Section 20. Rights and disabilities not affected by Act

Subject to the provisions of section 19, any person whose marriage is solemnized under this Act, shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850 (XXI of 1850) applies.

Section 21. Succession to property of parties married under Act

Not-withstanding any restrictions contained in the Indian Succession Act, 1925 (XXXIX of 1925), with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this section that Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestates) had been omitted therefrom.

Section 21 A. Special provision in certain cases

¹Special provision in certain cases. Where the marriage is solemnized under this Act of any person who professes the Hindu Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, Section 19 and Section 21 shall not apply and so much of Section 20 as creates a disability shall also not apply.]

——————–

1. Ins. by Act No 68 of 1976, w.e.f. 27-5-1976.

Chapter V Restitution of Conjugal rights and judicial separation

Section 22. Restitution of conjugal rights

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

¹[Explanation. -Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]

——————–

1. Ins. by Act No 68 of 1976, w.e.f. 27-5-1976.

Section 23. Judicial separation

(1) A petition for judicial separation may be presented to the district court either by the husband or the wife, -

(a) On any of the grounds specified ¹[in sub-section (1)] ²[and sub-section (IA) of Section 27] on which a petition for divorce might have been presented; or

(b) On the ground of failure to comply with a decree for restitution of conjugal rights;

and the court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, and decree judicial separation accordingly.

(2) Where the court grants a decree for judicial separation, it shall be no longer obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

——————–

1. Subs. by Act No. 29 of 1970, w.e.f. 12-6-1970.

2. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

Chapter VI Nullity of marriage and divorce

Section 24. Void marriages

(1) Any marriage solemnized under this Act shall be null and void ¹[and may, on a petition presented by either party thereto against the other party, be so declared] by a decree of nullity if-

(i) Any of the conditions specified in clauses (a), (b), (c) and (d) of Section 4 has not been fulfilled; or

(ii) The respondent was impotent at the time of the marriage and at the time of the institution of the suit.

(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of Section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of Section 15:

Provided that no such declaration shall be made in any case where an appeal has been preferred under Section 17 and the decision of the district court has become filial.

——————–

1. Substituted for words “and may be so declared” by Act No. 68 of 1876, w.e.f. 27-5-1976.

Section 25. Voidable marriage

Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if -

(i) the marriage has not been consummated owning to the willful refusal of the respondent to consummate the marriage; or

(ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or

(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the India Contract Act, 1872 (IX of 1872):

Provided that, in the case specified in clause (ii), the court shall not grant a decree unless it is satisfied,-

(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(b) that proceedings were instituted within a year from the date of the marriage; and

(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree:

Provided further that in the case specified in clause (iii), the court shall not grant a decree if,-

(a) proceedings have not been instituted within one year after the coercion have ceased or, as the case may be fraud had been discovered; or

(b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.

Section 26. Legitimacy of children of void and voidable marriages

¹Legitimacy of children of void and voidable marriages. (1) Notwithstanding that a marriage is null and void under Section 24, and child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 25, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it has been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 25, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents].

——————–

1. Substituted by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 27. Divorce

²[(1)] Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband, or the wife on the ground that the respondent-

¹[(a) Has, after the solemnization of the marriage. had voluntary sexual intercourse with any person other than his or her spouse-, or

(b) Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(c) If undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code;

³[* * *]

(d) Has since the solemnization of the marriage treated the petitioner with cruelty; or

¹[(e) Has been incurably of unsound mind, or hits been suffering continuously or intermittently from mental disorder of such a kind and to such all extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation. -In this clause, -

(i) The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(ii) The expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or

(f) Has been suffering from venereal disease in a communicable form; or]

(g) Has ⁵[* * *] been suffering from leprosy, the disease not having been contracted from the petitioner; or,

(h) Has not been heard of as being alive for period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; ⁶[* * *]

⁷[Explanation.- In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate expressions shall be construed accordingly.]

⁵[* * * * *]

⁸[* * * * *]

⁷[(lA) A wife may also present a petition for divorce to the district court on the ground, -

(i) That her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii) That in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding Section 488 of the Code of Criminal Procedure, 1898 [5 of 1898]), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards]

⁹[(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground-

(i) That there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or up wards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) That there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties]

——————–

1. Subs. by Act No. 68 of 1976, w.e.f. 27-5-1976.

2. Section 27 renumbered as sub-section (1) by Act 29 of 1970, w.e.f. 12-8-1970.

3. Proviso omitted by Act No. 68 of 1976, w.e.f. 27-5-1976.

4. Certain words omitted by Act No. 68 of 1976, w.e.f. 27-5-1976.

5. Word “or” omitted by Act 29 of 1970, w.e.f. 12-8-1970.

6. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

7. Clause (i) and (i) omitted by Act No. 29 of 1970, w.e.f. 12-8-1970.

8. Ins. by Act No. 29 of 1970, w.e.f. 12-8-1970.

Section 27 A. Alternate relief in divorce proceedings

¹Alternate relief in divorce proceedings. In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the ground mentioned in clause (h) of sub-section (1) of Section 27, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

——————–

1. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 28. Divorce by mutual consent

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be present to the district court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) ¹[On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen months] after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

——————–

1. Subs, by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 29. Restriction on petitions for divorce during first three years after marriage

(1) No petition for divorce shall be presented to the district court ¹[unless at the date of the presentation of the petition one year has passed] since the date of entering the certificate of marriage in the Marriage Certificate Book:

Provided that the district court may, upon application being made to it, allow a petition to be presented ¹[before one year has passed] on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the district court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the district court may, if it pronounces a 2 decree, do so subject to the condition that the decree shall not have effect until after the ²[expiry of one year] from the date of the marriage or may dismiss the petition, without prejudice to any petition, which may be brought after the ³[expiration of the said one year] upon the same, or substantially the same, facts as those proved in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the ⁴[expiration of one year] from the date of the marriage, the district court shall have regard to the interests of any children of the marriage, and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the ²[said one year].

——————–

1. Substituted for word “before three years have passed” by Act 68 of 1976, w.e.f. 27-5-1976.

2. Substituted for word “expiry of three years” by Act 68 of 1976, w.e.f. 27-5-1976.

3. Substituted for word “expiration of the said three years” by Act 68 of 1976, w.e.f. 27-5-1976.

4. Substituted for word “expiration of three years” by Act 68 of 1976, w.e.f. 27-5-1976.

5. Substituted for word “said three years” by Act 68 of 1976, w.e.f. 27-5-1976.

Section 30. Remarriage of divorced persons

Where a marriage has been dissolved by the decree of divorce, and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, ¹[* * *] either party to the marriage may marry again.

——————–

1. Omitted words “and one year has elapsed thereafter but not sooner” by Act 68 of 1976, w.e.f. 27-5-1976.

Chapter VII Jurisdiction and Procedure

Section 31. Court to which petition should be made

¹[(1) Every petition under Chapter V or Chapter VI shall be presented to 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

²[(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or]

(iv) The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years by those who would naturally have heard to him if he were alive.]

(2) Without prejudice to any jurisdiction exercisable by the court under sub-section (1), the district court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories.

——————–

1. Substituted by Act 68 of 1976, w.e.f. 27-5-1976.

2. Inserted vide Marriage Laws (Amdt.) Act, 2003.

Section 32. Contents and verification of petitions

(1) Every petition under Chapter V or Chapter VI shall state, as distinctly as the nature of the case permits, the facts on which the claim to relief is founded, and shall also state that there is no collusion between the petitioner and the other party to the marriage.

(2) The statements contained in every such petition shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.

Section 33. Proceedings to be in camera and may not be printed or published

¹[Proceedings to be in camera and may not be printed or published. (1) Every proceeding under this Act shall be conducted in (camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.

(2) If any person prints on publishes any matter in contravention of the provisions contained in sub-section (1) he shall be punishable with fine which may extend to one thousand rupees.]

——————–

1. Substituted by Act 68 of 1976, w.e.f. 27-5-1976.

Section 34. Duty of court in passing decrees

(1) In any proceeding under Chapter V or Chapter VI, whether defended or not, if the court is satisfied that, -

(a) Any of the grounds for granting relief exists; and

(b) ¹[Where the petition is founded on the ground specified in clauses (a) of subsection (1) of Section 27, the petitioner has not in any manner been accessory to or connived at or condoned the act of sexual intercourse referred to therein,] or, where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty; and

(c) When divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and

(d) The petition is not presented or prosecuted in collusion with the respondent; and

(e) There has not been any unnecessary or improper delay in instituting the proceedings; and

(f) There is no other legal ground why the relief-should not be granted; then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties;

²[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (c), clause (e), clause (f), clause (g) and clause (h) of sub-section (1) of section 27.]

²[(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceeding for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been effected and the court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]

——————–

1. Subs, by Act 68 of 1976, w.e.f. 27-5-1976.

2. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 35. Relief for respondent in divorce and other proceedings

¹[Relief for respondent in divorce and other proceedings. In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground, if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he, or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]

——————–

1. Subs, by Act 68 of 1976, w.e.f. 27-5-1976.

Section 36. Alimony pendente lite

Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as, having regard to the husband’s income, it may seem to the court to be reasonable.

¹[Provided that the application for the payment of the expenses of the proceeding and such weekly or monthly sum during the proceeding under Ch. V or Ch. VI, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the husband.]

——————–

1. Inserted vide The Marriage Laws (Amdt.) Act, 2001 (Act No. 49 of 2001), dt. 24-9-2001.

Section 37. Permanent alimony and maintenance

(1) Any court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at ail-y, time subsequent to the decree, on application made to it for the purpose, order that the husband shall secure to the wife for her maintenance and support, if necessary, by a charge on the husband’s property, such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as, having regard to her own property, if any, her husband’s property and ability ¹[the conduct of the parties and other circumstances of the case], it may seem to the court to be just.

(2) If the district court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under subsection (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as it ,ay seem to the court to be just.

(3) If the district court is satisfied that the wife is whose favour an order likes been made under this section has re-married or is not leading a chaste life, ²[it may, at the instance of the husband vary, modify or rescind any such order and in such manner as the court may deem just.]

——————–

1. Substituted for words “and the conduct of the parties” by Act No. 68 of 1976, w.e.f. 27-5-1976.

2. Substituted for words “it shall rescind the order” by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 38. Custody of Children

In any proceeding under Chapter V or Chapter VI the district court may, from time to time, pass such ;Interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time to time, all of such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending.

¹[Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Ch. V or Ch. VI, shall, as far as possible be disposed of within sixty days form the date of service of notice on the respomdent.]

——————–

1. Inserted vide The Marriage Laws (Amdt.) Act, 2001 (Act No. 49 of 2001), dt. 24-9-2001.

Section 39. Appeals from decrees and orders

(1) All decrees made by the court in any proceeding under Chapter V or Chapter VI shall, subject to the provisions of subsection (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction and such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act, under Section 37 or Section 38 shall, subject to any provisions of subsection (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of ¹[ninety] days from the date of the decree or order.

——————–

1. Substituted for “thirty” vide the Marriage Laws (Amdt.) Act, 2003.

Section 39 A. Enforcement of decrees and orders

¹[Enforcement of decrees and orders. All decrees and orders made by the court in any proceeding under Chapter V or Chapter VI shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced.]

——————–

1. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 40. Application of Act V of 1908

Subject to the other provisions contained in this Act, and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (Act V of 1908).

Section 40 A. Power to transfer petitions in certain cases

¹[Power to transfer petitions in certain cases. (1) Where-

(a) A petition under this Act has been presented to the district court having party to the marriage praying for a decree for judicial separation jurisdiction by a under Section 23 or for a decree of divorce under Section 27, and

(b) Another petition under this Act has been presented thereafter by the other party to the marriage praying for decree for judicial separation under Section 23, or for decree of divorce under Section 27 on any ground whether in the same district court or in a different district court, in the same State or in a different State, the petition shall be dealt with as specified in sub-section (2).

(2) In a case where sub-section (1) applies,-

(a) If the petitions are presented to the same district court, both the petitions shall be tried and heard together by the district court;

(b) If the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent, under the Code of Civil Procedure, 1908 (5 of 1909) to transfer any suit or proceeding from the district court in which the later petition has been, presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.

——————–

1. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 40 B. Special provision relating to trial and disposal of petition under the Act

(1) The trial of a petition under this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusions, unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(2) Every petition under this Act shall be tried as expeditiously as possible, and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.

(3) Every appeal under this Act shall be heard as expeditiously as possible and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.

Section 40 C. Documentary evidence

Notwithstanding anything contained in any attachment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.

Section 41. Power of High Court to make rules regulating procedure

(1) The High Court shall, by notification in the Official Gazette, make such rules consistent with the provisions contained in this Act and the Code of Civil Procedure, 1908 (Act V of 1908), as it may consider expedient for the purpose of carrying into effect the provisions of Chapter V,VI and VII.

(2) In particular, and without prejudice to the generality of the foregoing provision, such rules shall provide for,-

(a) the imp leading by the petitioner of the adulterer as a co-respondent on a petition for divorce on the ground of adultery, and the circumstances in which the petitioner may be excused from doing so;

(b) the awarding of damages against any such co-respondent;

(c) the intervention in any proceeding under Chapter V or Chapter VI by any person not already a party thereto;

(d) the form and contents of petitions for nullity of marriage or for divorce and the payment of costs incurred by parties to such petitions; and

(e) any other matter for which no provision or no sufficient provision is made in this Act, and for which provision is made in the Indian Divorce Act, 1869 (IV of 1869).

Chapter VIII Miscellaneous

Section 42. Saving

Nothing contained in this Act shall effect the validity of any marriage not solemnized under its provisions; nor shall this Act be deemed directly or indirectly to affect the validity of any mode of contracting marriage.

Section 43. Penalty on married person marrying again under this Act

Save as otherwise provided in Chapter III, every person who, being at the time married, procures a marriage of himself to others to be solemnized under this Act shall be deemed to have committed an offence under section 494 or section 495 of the Indian Penal Code (Act XLV of 1860), as the case may be, and the marriage so solemnized shall be void.

Section 44. Punishment of bigamy

Every person whose marriage is solemnized under this Act and who, during the life time of his or her wife or husband contracts any other marriage shall be subjected to the penalties provided in section 494 and section 495 of the Indian Penal Code (Act XLV of 1860), for the offence of marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be void.

Section 45. Penalty for signing false declaration or certificate

Every person making, signing or attesting any declaration or certificate required by or under this Act containing a statement which is false and which he either knows or believes to be false or does not believe to be true shall be guilty of the offence described in section 199 of the Indian Penal Code (Act XLV of 1860).

Section 46. Penalty for wrongful action of Marriage Officer

Any Marriage Officer who knowingly and willfully solemnizes a marriage under this Act -

(1) without publishing a notice regarding such marriage as required by section 5, or

(2) within thirty days of the publication of the notice of such marriage, or

(3) in contravention of any other provision contained in this Act, shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both.

Section 47. Marriage Certificate Book to be open to inspection

(1) The Marriage Certificate Book kept under this Act shall at all reasonable times be open for inspection and shall be admissible as evidence of the statements therein contained.

(2) Certified extracts from the Marriage Certificate Book shall, on application, be given by the Marriage Officer to the applicant on payment by him of the prescribed fee.

Section 48. Transmission of copies of entries in marriage records

Every Marriage Officer in a State shall send to the Registrar-General of Births, Deaths and Marriages of that State at such intervals and in such form as may be prescribed, a true copy of all entries made by him in the Marriage Certificate Book since the last of such intervals, and, in the case of Marriage Officers outside the territories to which this Act extends, the true copy shall be sent to such authority as the Central Government may specify in this behalf.

Section 49. Correction of errors

(1) Any marriage Officer who discovers any error in the form of substance of any entry in the Marriage Certificate Book may, within one month next after the discovery of such error, in the presence of the persons married or, in case of their death or absence, n the presence of two other credible witnesses, correct the error by entry in the margin without any alternative of the original entry and shall sign the marginal entry and add thereto the date of such correction and the Marriage Officer shall make the like marginal entry in the certificate thereof.

(2) Every correction made under this section shall be attested by the witnesses in whose presence it was made.

(3) Where a copy of any entry has already been sent under section 48 to the Registrar-General or other authority the Marriage Officer shall make and send in like manner a separate certificate of the original erroneous entry and of the marginal correction therein made.

Section 50. Power to make rules

(1) The Central Government, in the case of ¹[* * *] officers of the Central Government, and the State Government, in all other cases, may, by notification in the Official Gazette, makes rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matter’s, namely:

(a) The duties and powers of Marriage Officers and the areas in which they may exercise jurisdiction:

(b) The manner in which a Marriage Officer may hold inquiries under this Act and the procedure therefor;

(c) The form and manner in which any books required by or under this Act shall be maintained;

(d) The fees that may be levied for the performance of any duty imposed upon a Marriage Officer under this Act;

(e) The manner in which public notice shall be given under Section 16;

(f) The form in which, and the intervals within which, copies of entries in the Marriage Certificate Book shall be sent in pursuance of Section 48;

(g) Any other matter which may be or requires to be prescribed.

²[(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making ally modification in the rule or both Houses agree that the rule should not be made, the rules shall thereafter have effect only in such modified form or be of no effect, as the else may be; so, however, that any such modification or annulment shall be without prejudice to the validity or anything previously done under that, rule.

(4) Every rule made by the State Government under this Act shall be laid as soon as it is made, before the State Legislature.]

——————–

1. Omitted words “diplomatic and consular and other” by Act 33 of 1969, w.e.f. 31-8-1969.

2. Inserted by Act No. 20 of 1983, w.e.f. 15-3-1984.

Section 51. Repeals and savings

(1) The Special Marriage Act 1872 (III of 1872), and any law corresponding to the Special Marriage Act, 1872, in force in an Part B State immediately before the commencement of this Act are hereby repealed.

(2) Notwithstanding such repeal,-

(a) all marriages duly solemnized under the Special Marriage Act, 1872 (III of 1872), or any such corresponding law shall be deemed to have been solemnized under this Act;

(b) all suits and proceedings in causes and matters matrimonial which, when this Act comes into operation, are pending in any court, shall be dealt with the decided by such court, so far as may be, as if they had been originally instituted therein under this Act.

(3) The provisions of sub-section (2) shall be without prejudice to the provisions contained in section 6 of the General Clauses Act.1897 (X of 1897), which shall also apply to the repeal of the corresponding law as if such corresponding law had been an enactment.

THE FIRST SCHEDULE

See section 2 (b)

“Degrees of Prohibited relationship”

PART I

1. Mother

2. Father’s widow (step-mother)

3. Mother’s mother

4. Mother’s father’s widow (step grand-mother)

5. Mother’s mother’s mother

6. Mother’s mother’s father’s widow (step great grand-mother)

7. Mother’s father’s mother

8. Mother’s father’s father’s widow (step great grand-mother)

9. Father’s mother

10. Father’s father’s widow (step grand-mother)

11. Father’s mother’s mother

12. Father’s mother’s father’s widow (step great grand-mother)

13. Father’s father’s mother

14. Father’s father’s father’s widow (step great grand mother)

15. Daughter

16. Son’s widow

17. Daughter’s daughter

18. Daughter’s son’s widow

19. Son’s daughter

20. Son’s son’s widow

21. Daughter’s daughter’s daughter

22. Daughter’s daughter’s son’s widow

23. Daughter’s son’s daughter

24. Daughter’s son’s son’s widow

25. Son’s daughter’s daughter

26. Son’s daughter’s son’s widow

27. Son’s son’s daughter

28. Son’s son’s son’s widow

29. Sister

30. Sister’sdaughter

31. Brother’s daughter

32. Mother’s sister

33. Father’s sister

34. Father’s brother’s daughter

35. Father’s sister’s daughter

36. Mother’s sister’s daughter

37. Mother’s brother’s daughter

Explanation.—For the Purposes of this Part, the expression “widow” includes a divorced wife.

PART II

1. Father

2. Mother’s husband (step-father)

3. Father’s fathter

4. Father’s mother’s husband (step grand-father)

5. Father’s father’s father

6. Father’s father’s mother’s husband (step great grand-father)

7. Father’s mother’s father

8. Father’s mother’s mother’s husband (Step great grand-father)

9. Mother’s father

10. Mother’s mother’s husband (step grand-father)

11. Mother’s father’s father

12. Mother’s father’s mother’s husband (step great grand-father)

13. Mother’s mother’s father

14. Mother’s mother’s mother’s husband (step great grand-father)

15. Son

16. Daughter’s husband

17. Son’s son

18. Son’s daughter’s husband

19. Daughter’s son

20. Daughter’s daughter’s husband

21. Son’s son’s son

22. Son’s son’s daughter’s husband

23. Son’s daughter’s son

24. Son’s daughter’s daughter’s husband

25. Daughter’s son’s son

26. Daughter’s son’s daughter’s husband

27. Daughter’s daughter’s son

28. Daughter’s daughter’s daughter’s husband

29. Brother

30. Brother’s son

31. Sister’s son

32. Mother’s brother

33. Father’s brother

34. Father’s brother’s son

35. Father’s sister’s son.

36. Mother’s sister’s son

37. Mother’s brother’s son

Explanation.—For the purpose of this Part, the expression “husband” includes a divorced husband.

THE SECOND SCHEDULE

(See section 5)

NOTICE OF INTENDED MARRIAGE

To

Marriage Officer for the ………………….District.

We hereby give you notice that a marriage under Special Marriage Act, 1954, is intended to be solemnized between us within three calendar months from the date hereof.

Witness our hands this…………………….. day of ………………… 19……..

(Sd.) A.B

(Sd.) C.D.

THE THIRD SCHEDULE

(See section 11)

DECLARATION TO BE MADE BY THE BRIDEGROOM

I, A.B., hereby declare as follows:-

1.I am at the present time unmarried (or a widower or a divorcee, as the case may be).

2.I have completed…………………years of age.

3.I am not related to C.D. (the bride) within the degrees of prohibited relationship.

4.I am aware that, if any statement in this declaration is false, and if in making such statement, I either know or believe it to be false or do not believe it to true.I am liable to imprisonment and also to fine.

(S.d), A.B. (the Bridegroom)

DECLARATION TO BE MADE BY HE BRIDE

I, C.D., hereby declare as follows;-

1.I am at the present time unmarried (or a widow or a divorcee, as the case may be).

2.I have completed……………………………………..years of age.

3.I am not related to A.B. (the Bridegroom) within the degrees of prohibited relationship.

4.I am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to be true, I am liable to imprisonment and also to fine.

(S.d) C.D. (the Bride)

Signed in our presence by the above-named A.B. and C.D. so far as we are aware there is no lawful impediment to the marriage.

Countersigned E.F., Marriage Officer.,

Dated the……………………..day of………………….19……………….

THE FOURTH SCHEDULE

(See Section 13)

CERTIFICATE OF MARRIAGE

I, E.F.hereby certify that on the day of 19 A.B.and C.D.* { * Herein give particulars of the parties} before me and that each of them, in my presence and in the presence of three witnesses who have signed hereunder, made the declarations of required by section 11 and that a marriage under this Act was the solemnized between them in my presence

(Sd.) E.F.,

Marriage officer ,for

(Sd.) A.B.,

Bridegroom

(Sd.) C.D.,

Bride

THE FIFTH SCHEDULE

(See section 16)

CERTIFICATE OF MARRIAGE CELEBRATED IN OTHER FORMS

I. E.F., hereby certify that A.B. and C.D. * appeared before me this……………….day of…….19……….and that each of them, in my presence and in the presence of three witnesses who have signed hereunder, made the declared that a ceremony of marriage has been performed between them and [hat they have been living together as husband and wife since the time of their marriage, and that in accordance with their desire to have their marriage registered under this Act, the said ‘ marriage has, this day……………….day of………….19 …………….been registered under this Act, having effect as from.

(Sd.) E.F.,

Marriage officer ,for

(Sd.) A.B.,

Bridegroom

(Sd.) C.D.,

Bride

Dated the………………………day of……….19…………………………..

* Herein give particulars of the parties.

Public Liability Insurance Act

November 30, 2014

Preamble

[Act No. 6 of 1991]

[22nd January 1991]

An Act to provide for public liability insurance for the purpose of providing immediate relief to persons affected by accident occurring while handling any hazardous substance and for matters connected therewith or incidental thereto.

Be it enacted by Parliament in the Forty-first Year of the Republic of India as follows: -

Section 1. Short title and commencement

(1) This Act may be called the Public Liability Insurance Act, 1991.

(2) It shall come into force on such date as the Central Government may by notification, appoint.

Section 2. Definitions

In this Act, unless the context otherwise requires,-

¹[(a) “Accident” means an accident involving a fortuitous or sudden or unintended occurrence while handling any hazardous substance resulting in Continuous or intermittent or repeated exposure to death of, or injury to, any person or damaged to any property but does not include an accident by reason only of war or radio-activity;]

(b) “Collector” means the Collector having jurisdiction over the area in which the accident occurs;

(c) “Handling”, in relation to any hazardous substance, means the manufacture, processing, treatment, package, storage, transportation by vehicle, use collection, destruction, conversion, offering for sale, transfer or the like of such hazardous substance;

(d) “Hazardous substance” means any substance or preparation which is defined as hazardous substance under the Environment (Protection) Act, 1986 (29 of 1986), and exceeding such quantity as may be specified, by notification, by the Central Government;

(e) “Insurance” means insurance against liability under sub-section (1) of Section 3;

(f) “Notification” means a notification published in the Official Gazette;

²(g) “Owner means a person who owns, or has control over handling, any hazardous substance at the time of accident and includes. -

(i) In the case of a firm, any of its partners; (ii) In the case of an association, any of its members; and

(iii) In the case of a company, any of its directors, managers, secretaries or other officers who is directly in charge of, and is responsible to, the company for the conduct of the business of the company;]

(h) “Prescribed” means prescribed by rules made under this Act; ³[(ha) “Relief Fund” means the Environmental Relief Fund established under Section 7A;]

(i) “Rules” means rules made under this Act;

(j) “Vehicle” means any mode of surface transport other than railways.

——————–

1. Subs. by Act No.11 of 1992.

2. Subs. by Act No. 11 of 1992.

3. Ins. by Act No. 11 of 1992.

Section 3. Liability to give relief in certain cases on principle of no fault

(1) Where death or injury to any person (other than a workman) or damage to any property has resulted from an accident, the owner shall be liable to give such relief as is specified in the Schedule for such death, injury or damage.

(2) In any claim for relief under sub-section (1) (hereinafter referred in to this Act as claim for relief), the claimant shall not be required to plead and establish that the death, injury or damage in respect of which the claim has been made was due to any wrongful act, neglect or default of any person. Explanation. -For the purpose of this section, -

(i) “Workman” has the meaning assigned to it in the Workmen’s Compensation Act, 1923 (8 of 1923);

(ii) “Injury” includes permanent total or permanent partial disability or sickness resulting out of an accident.

Section 4. Duty of owner to take out insurance policies

(1) Every owner shall take out, before he starts handling any hazardous substance, one or more insurance policies providing for contracts of insurance whereby he is insured against liability to give relief under sub-section (1) of Section 3: Provided that any owner handling any hazardous substance immediately before the commencement of this Act shall take out such insurance policy or policies as soon as may be and in any case within a period of one year from such commencement. (2) Every owner shall get the insurance policy, referred to in subsection (1), renewed from time to time before the expiry of the period of validity thereof so that the insurance policies may remain in force throughout the period during which such handling is continued.

¹(2A) No insurance policy taken out or renewed by an owner shall be for an amount less than the amount of the paid-up capital of the undertaking handling any hazardous substance and owned or controlled by that owner, and more than the amount, not exceeding fifty crore rupees, as may be prescribed. Explanation-For the purposes of this sub-section, “paid-up capital” means, in the case of an owner not being a company, the market value of all assets and stocks of the undertaking on the date of contract of insurance.

(2B) The liability of the insurer under one insurance policy shall not exceed the amount specified in the terms of the contract of insurance in that insurance policy.

(2C) Every owner shall also, together with the amount of premium, pay to the insurer, for being credited to the Relief Fund established under Section 7A, such further amount, not exceeding the sum equivalent to the amount of premium, as may be prescribed. (2D) The insurer shall remit to the authority specified in sub-section (3) of Section 7A the amount received from the owner under subsection (2C) for being credited to the Relief Fund in such manner and within such period as may be prescribed and where the insurer fails to so remit that amount, it shall be recoverable from the insurer as arrears of land revenue or of public demand.]

(3) The Central Government may, by notification, exempt from the operation of sub-section (1) any owner, namely:-

(a) The Central Government; (b) Any State Government; (c) Any corporation owned or controlled by the Central Government or a State Government; or (d) Any local authority:

Provided that no such order shall be made in relation to such owner unless a fund has been established and is maintained by that owner in accordance with the rules made in this behalf for meeting any liability under sub-section (1) of Section 3.

——————–

1. Ins. by Act No. 11 of 1992.

Section 5. Verification and publication of accident by Collector

Whenever it comes to the notice of the Collector that an accident has occurred at any place within his jurisdiction, he shall verify the occurrence of such accident and cause publicity to be given in such manner as he deems fit for inviting applications under sub-section (1) of Section 6.

Section 6. Application for claim for relief

(1) An application for claim for relief may be made.-

(a) By the person who has sustained the injury;

(b) By the owner of the property to which the damage has been caused;

(c) Where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) By any agent duly authorised by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for relief, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application.

(2) Every application under sub-section (1) shall be made to the Collector and shall be in such form, contain such particulars and shall be accompanied by such documents as may be prescribed

(3) No application for relief shall be entertained unless it is made within five years of the occurrence of the accident.

Section 7. Award of relief

(1) On receipt of an ‘application under sub-section (1) of Section 6, the Collector shall, after giving notice of the application to the owner and after giving the parties an opportunity of being heard, hold an inquiry into the claim or, each of the claims, and may make an award determining the amount of relief which appears to him to be just and specifying the person or persons to whom such amount of relief shall be paid.

(2) The Collector shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.

(3) When an award is made under this section.-

(a) The insurer, who is required to pay any amount in terms of such award and to the extent specified in sub-section (2B) of Section 4, shall, within a period of thirty days of the date of announcement of the award, deposit that amount in such manner as the Collector may direct; (b) The Collector shall arrange to pay front the Relief Fund, in terms of such award and in accordance with the scheme under Section 7A, to the person or persons referred to in subsection (1) such amount as may be specified in that scheme;

(c) The owner shall, within such period, deposit such amount in such manner as the Collector may direct.]

(4) In holding any inquiry under sub-section (1), the Collector may, subject to any rules made in this behalf, follow such summary procedure as he thinks fit.

(5) The Collector shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Collector shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) Where the insurer or the owner against whom the award is made under sub-section (1) fails to deposit the amount of such award within the period specified under subsection (3), such amount shall be recoverable form the owner, or as the case may be, the insurer as arrears of land revenue or of public demand.

(7) A claim for relief in respect of death of, or injury to, any person or damage to any property shall be disposed of as expeditiously as possible and every endeavor shall be made to dispose of such claim within three months of the receipt of the application for relief under sub-section (1) of Section 6.

²[(8) Where an owner is likely to remove or dispose of his property with the object of evading payment by him of any amount of the award, the Collector may, in accordance with the provisions of rules I to 4 of Order XXXIX of the First Schedule to the Code of Civil Procedure, 1908 (5 of 19O8), grant a temporary injunction to restrain such act.]

——————–

1. Subs. By Act No. 11 of 1992.

2. Ins. by Act No. 11 of 1992.

Section 7 A. Establishment of Environmental Relief Fund

¹[Establishment of Environmental Relief Fund. (1) The Central Govern- ment may, by notification, establish a fund to be known as the Environmental Relief Fund.

(2) The Relief Fund shall be utilised for paying, in accordance with the provisions of this Act and the scheme made under sub-section (3), relief under the award made by the Collector under Section 7 (3) The Central Government may, by notification, make a scheme specifying the authority in which the Relief Fund shall vest, the manner in which the Relief Fund shall be administered, the form and the manner in which money shall be drawn from the Relief Fund and for all other matters connected with or incidental to the administration of the Relief Fund and the payment of relief therefrom.]

——————–

1. Ins. by Act No. 11 of 1992.

Section 8. Provisions as to other right to claim compensation for death, etc

(1) The right to claim relief under sub-section (1) of Section 3 in respect of death of, or injury to, any person or damage to any property shall be in additional to any other right to claim compensation in respect thereof under any other law for the time being in force.

(2) Notwithstanding anything contained in subsection (1), where in respect of death of, or injury to, any person or damage to any property, the owner, liable to give claim for relief, is also liable to pay compensation under any other law, the amount of such compensation shall be reduced by the amount of relief paid under this Act.

Section 9. Power to call for information

Any person authorised by the Central Government may, for the purposes of ascertaining whether any requirements of this Act or of any rule or of any direction given under this Act have been complied with, require any owner to submit to that person such information as that person may reasonably think necessary.

Section 10. Power of entry and inspection

Any person, authorised by the Central Government in this behalf, shall have a right to enter, at all reasonable times with such assistance as he considers necessary, any place, premises or vehicle, where hazardous substance is handled for the purpose of determining whether any provisions of this Act or of any rule or of any direction given under this Act is being or has been complied with and such owner is bound to tender all assistance to such person.

Section 11. Power of search and seizure

(1) If a person, authorised by the Central Government in this behalf, has reason to believe that handling of any hazardous substance is taking peace in any place, premises or vehicle, in contravention of sub-section (1) of Section 4, he may enter into and search such place, premises or vehicle of such handling of hazardous substance.

(2) Where, as a result of any search under sub-section (1) any handling of hazardous substance has been found in relation to which contravention of sub-section (I) of Section 4 has taken place, he may seize such hazardous substance and other things, which, in his opinion, will be useful for, or relevant to, any proceeding under this Act:

Provided that where it is not practicable to seize any such substance or thing, he may serve on the owner an order that the owner shall not remove, part with or otherwise deal with, the hazardous substance mid such other things except with the previous permission of that person.

(3) He may, if he has reason to believe that it is expedient to do to prevent an accident dispose of the hazardous substance seized under sub-section (2) immediately in such manner as he may deem fit.

(4) All expenses incurred by him in the disposal of hazardous substances under sub-section (3) shall be recoverable form the owner as arrears of land revenue or of public demand.

Section 12. Power to give direction

Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may in exercise of its powers and performance of its functions under this Act, issue such directions in writing as it may deem fit for the purposes of this Act to any owner or ally person, officer, authority or agency and such owner, person, officer, authority or agency shall be bound to comply with such directions.

Explanation. – For the removal of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct-

(a) Prohibition or regulation of the handling of any hazardous substance; or

(b) Stoppage or regulation of the supply of electricity, water or any other service.

Section 13. Power to make application to Courts for restraining owner from handling hazardous substances

(1) If the Central Government or any person authorised by that Government in this behalf has reason to believe that any owner has been handling any hazardous substance in contravention of any of the provisions of this Act, that Government or, as the case may be, that person may make an application to a Court not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of first class for restraining such owner from such handling.

(2) On receipt of the application under sub-section (1), the Court may make such order as it deems fit.

(3) Where under sub-section (2), the Court makes an order restraining any owner from handling hazardous substance, it may, in that order. -

(a) Direct such owner to desist from such handling;

(b) Authorise the Central Government or, as the case may be, the person referred to in sub-section (1), if the direction under clause (a) is not complied with by the owner to whom such direction is issued, to implement the direction in such manner as may be specified by the Court.

(4) All expenses incurred by the Central Government, or as the case may be, the person in implementing the directions of Court under clause (b) of subsection (3), shall be recoverable form the owner as arrears of land revenue or of public demand.

Section 14. Penalty for contravention of sub-section (1) or sub-section (2) of Section 4 or failure to comply with directions under Section 12

(1) Whoever contravenes any of the provisions of ¹[sub-section (1) or subsection (2) or subsection (2A) or sub-section (2C)] of Section 4 or fails to comply with any direction issued under Section12, he shall be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years, or with fine which shall not be less than one lakh rupees, or with both.

(2) Whoever, having already been convicted or ail offence under subsection (1), is convicted for the second offence or any offence subsequent to the second offence, he shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine which shall not be less than one lakh rupees.

(3) Nothing contained in Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), or in the Probation of Offenders Act, 1958 (20 of 1958), shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age.

——————–

1. Subs. by Act No. 11of 1992 for “sub-section (1) or (2).

Section 15. Penalty for failure to comply with direction under Section 9 or order under Section 11 or obstructing any person in discharge of his functions under Section 10 or 11

If any owner fails to comply with direction issued under Section 9 or fails to comply with order issued under sub-section (2) of Section11, or obstructs any person in discharge of his functions under Section 10 or sub-section (1) or subsection (3) of Section11, he shall be punishable with imprisonment which may extend to three months, or with fine which may extend to ten thousand rupees, or with both.

Section 16. Offences by companies

(1) Where any offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to; the company for the conduct of’ the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this subsection shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in subsection (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the Consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.-For the purposes of this section,-

(a) “Company” means any body corporate and includes a firm or other association of individuals;

(b) “Director”, in relation ‘to a firm, means a partner in the firm.

Section 17. Offences by Government Departments

Where an offence under this Act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this section shall render such Head of the Department liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

Section 18. Cognizance of offences

No court shall take cognizance of any offence under this Act except on a complaint made by-

(a) The Central Government or any authority or officer authorised in this behalf by that Government; or

(b) Any person who has given notice of not less than sixty days in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid.

Section 19. Power to delegate

The Central Government may, by notification, delegate, subject to such conditions and limitations as may he specified in the notification, such of its powers and functions under this Act (except the power under Section 23) as it may deem necessary or expedient to any person (including any officer, authority or other agency.)

Section 20. Protection of action taken in good faith

No suit, prosecution or other legal proceeding shall lie against the Government or the person, officer, authority or other agency in respect of anything which is done or intended to be done in good faith in pursuance of this Act or the rules made or orders or directions issued thereunder.

Section 21. Advisory Committee

(1) The Central Government may, from time to time, constitute an Advisory Committee on the matters relating to the insurance policy under this Act.

(2) The Advisory Committee shall consist of-

(a) Three officers representing the Central Government;

(b) Two persons representing the insurers;

(c) Two persons representing the owners; and

(d) Two persons from amongst the experts of insurance or hazardous substances to be appointed by the Central Government.

Section 22. Effect of other laws

The provisions of this Act and any rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law.

Section 23. Power to make rules

(1) The Central Government may, by notification, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters namely:-

¹[(a) The maximum amount for which an insurance policy may be taken out by an owner under sub-section (2A) of Section 4;

(aa) The amount required to be paid by every owner for being credited, to the Relief Fund under sub-section (2C) of Section 4;

(ab) The manner in which and the period within which the amount received from the owner is required to be remitted by the insurer under sub-section (2D) of Section 4;]

²[(ac) Establishment and maintenance of fund under sub-section (3) of Section 4;]

(b) The form of application and the particulars to be given therein and the documents to accompany such application under sub-section (2) of Section 6;

(c) The procedure for holding an inquiry under subsection (4) of Section 7;

(d) The purposes for which the Collector shall have powers of a Civil Court under sub-section (5) of Section 7;

(e) The manner in which notice of the offence and of the intention to make a complaint to the Central Government shall be given under clause (b) of Section 18;

(f) Any other matter which is required to be, or may be, prescribed.

(3) Every ³[rule or scheme] made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the ³ [rule or scheme] or both Houses agree that the ³[rule or scheme] should not be made, the ³[rule or scheme] shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any Such modification or annulment shall be without prejudice to the validity of anything previously done that rule.

———————

1. Ins. by Act No. 11of 1992.

2. Original Cl. (a) re-lettered as clause (ac) by Act No. 11of 1992.

3. Subs. by Act No. 11of 1992, for “rule”.

Schedule

THE SCHEDULE

[See Section 3 (1)]

(i) Reimbursement of medical expenses incurred up to a maximum of Rs. 12,500 in each case.

(ii) For fatal accidents the relief will be Rs. 25,000 per person in addition to reimbursement of medical expenses, if any, incurred on the victim up to a maximum of Rs.12,5000.

(iii) For permanent total or permanent partial disability or other injury or sickness, the relief will be (a) reimbursement of medical expenses incurred, if any, up to a maximum of Rs. 12,500 in each case and (b) cash relief on the basis of percentage of disablement as certified by an authorised physician. The relief for total permanent disability will be Rs.25,000.

(iv) For loss of wages due to temporary partial disability which reduces the earning capacity of the victim, there will be a fixed monthly relief not exceeding Rs.1,000 per month up to a maximum of 3 months: provided the victim has been hospitalized for a period exceeding 3 days and is above 16 years of age.

(v) Up to Rs. 6,000 depending on the actual damage, for any damage to private property.

The Prevention of Food Adulteration Act

November 30, 2014

Section 1. Short title, extent and commencement

(1) This Act may be called the Prevention of Food Adulteration Act, 1954.

(2) It extends to the whole of India ¹[* * *]

(3) It shall come into force on such date² as the Central Government may, by notification in the official Gazette, appoint.

——————–

1. The words “except the State of Jammu and Kashmir” omitted by the Act 41 of 197 1. Sec. 2 (w.e.f. 26tb January, 1972).

2. lst June, 1955; see notification No. S.R.O. 1085, dated 9th May 1955, Gazette of India, Pt. 11 Sec. 3, P. 874. The Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, Sec. 2 and Sch.1, to Pondicherry by Reg, 7 of 1963, Sec. 3 and Sch. 1, to Goa, Daman and Diu by Reg. 11 of 1963, Sec, 3 and Schedule and to Kohima and Mokokchung district in Nagaland by Act 24 of 1972, Sec. 2 (w.e. f. 1st April. 1973).

Section 2. Definitions

In this Act unless the context otherwise requires, –

¹[(i) “adulterant” means any material which is or could be employed for the purpose of adulteration;]

² [(i-a)] “adulterated”—an article of food shall be deemed to be adulterated-

(a) If the article sold by a vendor is not of the nature, substance or quality, demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality, which it purports or is, represented to be;

(b) If the article contains any other substance which affect, or if the article is so processed as to affect injuriously the nature, substance or quality thereof;

(c) If any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature substance or quality thereof;

(d) If any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof.

(e) If the article has been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;

(f) If the article consists wholly or in part of any filthy, putrid, ³[* * *], rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption;

(g) If the article is obtained from a diseased animal;

(h) If the article contains any poisonous or other ingredient which renders it injurious to health:

(i) If the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its (contents injurious to health;

⁴[(j) If any colouring matter, other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;]

(k) If the article contains any prohibited preservative or permitted preservative in excess of’ the prescribed limits;

⁵[(l) If’ the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability but which renders it injurious to health;]

(m) If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:

Provided that, where the quality or purity of the article, being a primary food has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.

Explanation. – Where two or more articles of primary food are mixed together and the resultant article of food-

(a) Is stored, sold or distributed under a name which denotes the ingredients thereof; and

(b) Is not injurious to health,

Then, such resultant article shall not be deemed to be adulterated within the meaning of this clause;

(ii) “Central Food Laboratory” means any laboratory or institute established or specified under Sec. 4;

(iii) “Committee” means the Central Committee for Food Standards constituted under Sec. 3;

(iv) “Director of the Central Food Laboratory” means the person appointed by the Central Government by notification in the Official Gazette as the Director of the Central Food Laboratory and includes any person appointed by the Central Government in like manner to perform all or any of the functions of the Director under this Act:

⁶[Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be appointed to be a Director under this clause;]

⁷[(v) “Food” means any article used as food or drink for human consumption other than drugs and water and includes,

(a) Any article, which ordinarily enters into, or is used in the composition or preparation of, human food,

(b) Any flavouring matter or condiments, and

(c) Any other article which the Central Government may, having regard to its use, nature, substance or quality declare, bv notification in the official Gazette, as food for the purposes of this Act;]

⁷[(vi) “Food (Health) Authority” means the Director of Medical and Health Services or the Chief Officer in-charge of health administration in a State, by whatever designation he is known, and includes any officer empowered by the Central Government or the State Government, by notification in the Official Gazette, to exercise the powers and perform the duties of the Food (Health) Authority under this Act with respect to such local area as may be specified in the notification;]

(vii) “Local area” means any area, whether urban or rural, declared by ⁸[the Central Government or the State Government] by notification the Official Gazette, to be a local area for the purposes of this Act;

(viii) “Local authority” means in the case of:

(1) A local area which is-

(a) A municipality, the municipal board or municipal corporation;

(b) A cantonment, the cantonment authority;

(c) A notified area, the notified committee;

(2) Any other area, such authority as may be prescribed by ⁹[the Central Government or the State Government] under this Act;

¹⁰[(viii-a) “Local (Health) Authority”, in relation to a local area, means the officer appointed bv the Central Government or the State Government by notification in the Official Gazette, to be in-charge of’ health administration in such area with such designation as may be specified therein;

(Viii-b) “Manufacture” includes any process incidental or ancillary to the manufacture of an article of food;]

(ix) “Misbranded”-an article of food shall be deemed to be, misbranded-

(a) If it is an imitation of, is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character;

(b) If it is falsely stated to be the product of any place or country

(c) If’ it is sold by a name which belongs to another article of food;

(d) If’ it is so coloured, flavored or coated, powered or polished that the fact that the article damaged is concealed or if the article is made to appear better or of greater value than it really is;

(e) If false claims are made for it upon the label or otherwise;

(f) If, when sold in packages which have been sealed or prepared by or at the instance of the manufacturer or producer and which bear his name and address, the contents of each package are not conspicuously and correctly stated on the outside there of within the limits of variability prescribed under this Act:

(g) If the package containing it, or the label on the package bears any statement, design of device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular, or if the package is otherwise deceptive with respect to its contents;

(h) If the package containing it or the label on the package bears the name of a fictitious individual or company as the manufacturer or producer of the article;

(i) If it purports to be, or is represented as being, for special dietarty uses, unless its label bears such information as may be prescribed concerning its vitamin, mineral, or other dietary properties in order sufficiently to inform its purchaser as to its value for such uses:

(j) If it contains any artificial flavouring, artificial colouring or chemical preservative, without a declaratory label stating that fact, or in contravention of the requirements of this Act or rules made thereunder;

(k) If it is not labelled in accordance with the requirements of this Act or rules made thereunder:

(x) “Package” means a box, bottle, gasket, tin, barrel, case, receptacle, sack, bag, wrapper or other thing in which an article of food is placed or packed;

(xi) “Premises” include any shop, stall or place where any article of food is sold or manufactured or stored for sale:

(xii) “Prescribed” means prescribed by rules made under this Act;

¹¹[xii-a) “Primary food” means any article of food, being a produce of agriculture or horticulture in its natural form;]

(xiii) “Sale” with its grammatical and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article:

(xiv) “Sample” means a sample of any article of food taken under the provisions of this Act or any rules made thereunder:

(xv) The words “unwholesome” and “noxious” when used in relation to an article of food mean respectively that the article is harmful to health or repugnant to human use.

STATE AMENDMENT

Maharashtra. – In Sec. 2 of the Prevention of’ Food Adulteration Act. 1954 (37of] 1954) to Cl. (VI) the following proviso shall be added

“Provided that the Commissioner of Food and Drugs Administration Maharashtra State, appointed as such by the State Government shall on the commencement of the Prevention of Food Adulteration Maharashtra (Amendment) Act, 1969 (.XIII of 1970), be the Food (Health) Authority in the State of Maharashtra.” ¹²

In Cl. (viii). After sub-clause (2), the following proviso shall be added, namely:

“Provided that ‘local authority’ in the case of a local area in the State of Maharashtra, means such authority or officer of the State Government as the State Government may, by notification in the Official Gazette, appoint for the local area specified in the notification.”

——————–

1. Ins. by Act 34 of 1976, Sec. 2 (w.e.f. Ist. April, 1976).

2. Clause (f) renumbered as Cl. (i-a) by Sec. 2 ibid.

3. The word “disgusting” omitted by Sec. 2 ibid.

4. Subs. by Sec. 2 ibid, for the sub-clause (f) (w.e.f. Ist. April, 1976).

5. Subs. by ibid, for the sub-clause (i) (w.e.f. Ist. April, 1976).

6. Ins. by Act 34 of l976, Sec.2 (w.e.f. Ist April, 1976)

7. Subs. by ibid.

8. Subs. by Act 49 of 1964. Sec. 2 for “the State Government” (w.e.f. Ist. March, 1965).

9. Ins. by Act 34 of 1976 Sec. 2 (w.e.f. Ist. April, 1976).

10. Subs. by Act 49 of 1964. Sec. 2 for “the State Government” (w.e.f. Ist. March 1965.

11. Ins. by Act 34 of 1976. Sec. 2 (w.e.f. Ist. April, 1976).

12. Vide the Maharashtra Act, 1970 (XIII of 1970), published in the Maharashtra Government Gazette. Extraordinary, Pt. IV. No. 16 dated 12the. March, 1970).

Section 3. The Central Committee for Food Standards

(1) The Central Government shall, as soon as may be after the commencement of this Act, constitute a Committee called the Central Committee for Food Standards to advise the Central Government and the State Governments on matters arising out of the administration of this Act and to carry out the other functions assigned to it under this Act.

(2) The Committee shall consist of the following members, namely:

(a) The Director-General, Health Services, ex offlcio, who shall be the Chairman:

¹[(b) The Director of’ the Central Food Laboratory or, in a case where more than one Central Food Laboratory is established, the Directors of such Laboratories, ex officio;]

(c) Two experts nominated by the Central Government;

²[(d) One representative each of the Departments of Food and Agriculture in the Central Ministry of Food and Agriculture and one representative each of the Central Ministries of Commerce, Defence, Industry and Supply and Railways, nominated by the Central Government;]

(e) One representative each nominated by the Government of each ³[* * *] State;

(f) Two representatives nominated by the Central Government, to represent the, ⁴[Union territories];

⁴[(g) One representative each, nominated by the Central Government, to represent the agricultural, commercial and industrial interests;

(gg) Five representatives nominated by the Central Government to represent the consumer’s interests, one of whom shall be from the hotel industry;]

(h) One representative of the medical profession nominated by the Indian Council of Medical Research;

⁵[(i) One representative nominated by the Indian Standards Institution referred to in Cl. (e) of Sec. 2 of the Indian Standards Institution (Certification Marks) Act, 1952 (36 of 1952)].

(3) The members of the Committee referred to in Cls. (c), (d), (e), ⁶[ ⁷[(q), (gg),] (h), and (i)] of sub- section (2) shall, unless their seats become vacant earlier by resignation, death or otherwise, be entitled to hold office for three years and shall be eligible for re-nomination.

(4) The functions of the Committee may be exercised notwithstanding any vacancy therein.

(5) The Committee may appoint such and so many sub-committees as it deems fit and may appoint to them persons who are not members of the Committee to exercise such powers and perform such duties as may, subject to such conditions, if any, as the Committee may impose, be delegated to them by the Committee.

(6) The Committee, may, subject to the previous approval of the Central Government, make byelaws for the purpose of regulating its own procedure and the transaction of its business.

——————–

1. Subs. by Act 34 of- 1976. Sec.3 (w.e.f. Ist. April, 1976).

2. Subs. by Act 49 of- 1964. Sec. 3 (w.e.f. Ist. March. 1965).

3. The words and letters “Part A State and Part B” omitted by the Adaptation of Laws (No.3) Order. 1956.

4. Subs. by ibid, for “Part C States”.

5. Ins. by Act 49 of 1964. Sec. 3 (w.e. f. Ist March. 1965).

6. Subs. by Act 34 of 1976, Sec. 3, for Cl. (g) (w.e.f. Ist April, 1976).

7. Subs. by Act 49 of 1964 Sec. 3 for “(g) and (h)” (w.e.f. Ist March. 1965).

Section 3 A. Appointment of Secretary and other staff

¹[Appointment of Secretary and other staff. (1) The Central Government shall appoint a Secretary to the Committee who shall, under the control and direction of the Committee, exercise such powers and perform such duties as may be prescribed or as may be delegated to him by the Committee.

(2) The Central Government shall provide the Committee with such clerical and other staff as that Government considers necessary.]

——————–

1. Ins. by Act 34 of 1976, Sec. 4 (w.e.f. 1st April, 1976).

Section 4. Central Food Laboratory

¹[(1) The Central Government shall, by notification in the Official Gazette, establish one or more Central Food Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or any rules made under this Act:

Provided that the Central Government may, by notification in the Official Gazette, also specify any laboratory or institute as a Central Food Laboratory for the purposes of this Act.]

(2) The Central Government may, after consultation with the Committee, make rules prescribing-

²[(a) The functions of Central Food Laboratory and the local area or areas within which such functions may be carried out;]

(b) The procedure for the submission to the said Laboratory of samples of articles of food for analysis or tests, the forms of the Laboratory’s reports thereon and. the fees payable in respect of such reports;

(c) Such other matters as may be necessary or expedient to enable the said Laboratory to carry out its functions.

STATE AMENDMENT

West Bengal. -To sub-section (1) of Sec. 4. The following proviso shall be added, namely:

“Provided that the State Government may with the prior approval of the Central Government, direct that the functions of the Central Food Laboratory and the Director may be carried out in West Bengal by such authority and such officer respectively, as may be specified the State Government by notification in the Official Gazette and any reference in this Act to the Central Food Laboratory or the Director shall then be construed to mean such authority or officer, as the case may be”, ³

——————–

1. Subs. by Sec. 5. Ibid. For sub-section (1) (w.e.f. I st April 1976).

2. Subs by Act 34 of 1976. Sec. 5, for, Cl. (a).

3. Vide West Bengal Act. 42 of 1973. Published in the Calcutta Gazette, Pt. III. No. 264. dated 29th April, 1974 (w.e.f. 29th April, 1974).

Section 5. Prohibition of import of certain articles of food

No person shall import, into India—

(i) Any adulterated food:

(ii) Any misbranded food:

(iii) Any article of food for the import of’ which a licence is prescribed, except in accordance with the conditions of the licence: and

(iv) Any article of food in contravention of any other provision of this Act or of any rule made thereunder.

Section 6. Application of law relating to sea customs and powers of Customs Officers

(1) The law for the time being in force relating to sea customs and to goods, the import of which is prohibited by See. 18 of the Sea Customs Act, 1878 (8 of 1878)¹ shall, subject to the provisions of Sec. 16 of this Act, apply, in respect of articles of food, the import of which is prohibited under Sec. 5 of this Act, and officers of Customs and officers empowered under that Act to perform the duties imposed thereby on a ²[Commissioner of Customs] and other officers of Customs shall have the same powers in respect of such articles of food as they have for the time being in respect of such goods as aforesaid.

(2) Without prejudice to the provisions of sub-section (1) the ³[Commissioner of Customs], or any officer of the Government authorised by the Central Government in this behalf, may detain any imported package which he suspects to contain any article of food the import of’ which is prohibited under Sec. 5 of this Act, and shall forthwith report such detention to the Director of the Central Food Laboratory and, if required by him, forward the package or send samples of any suspected articles of food found therein to the said Laboratory.

——————–

1. The said Act has been repealed by the Customs Act, 1962 {52 of 1962}, Sec. 160 and Schedule.

2. Subs. by Act 22 of 1995. Sec. 87.

3. The words “or” omitted by Act 34 of 1976, Sec. 6 {w.e.f. 1st April, 1976).

Section 7. Prohibitions of manufacture, sale, etc. of certain articles of food

No person shall himself or by any person on his behalf’ manufacture for sale, or store, sell or distribute-

(i) Any adulterated food:

(ii) Any misbranded food.

(iii) Any article of food for the sale of which a licence is prescribed, except in accordance with the conditions or the licence;

(iv) Any article of food the sale of which is for the time being prohibited by the Food (Health) Authority ¹[in the interest of public health;] ²[* * *]

(v) Any article of food in contravention of any other provision of’ this Act or of any rule made thereunder, ³[or]

¹[(vi) Any adulterant.

Explanation–For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of’ food referred to in Cl. (iii) of- Cl. (iu) it he stores such food for the manufacture there from of any article of food for sale.]

——————–

1. Subs. by Act 49 of 1964. Sec. 4 for certain words {w.e.f. 1st March 1965).

2. The words “or” omitted by Act 34 of 1976, Sec. 6 {w.e.f. 1st April, 1976).

3. Subs. by Act 49 of 1964.Sec. 5, for Secs. 8 and 9 (w.e. f. Ist March, 1965).

Section 8. Public Analysts

¹[Public Analysts. The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be public analysts for such local area as may be assigned to them by the Central Government or the State Government as the case may be

Provided that no person who has any financial interest in the manufacture import or sale of any article of food shall be appointed to be a Public Analyst under this section:

¹[Provided further that different public Analysts may be appointed for different articles of food].

——————–

1. Subs. by Act 49 of 1964.Sec. 5, for Secs. 8 and 9 (w.e. f. Ist March, 1965).

Section 9. Food Inspectors

(1) The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, leaving the prescribed qualifications to be Food Inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be:

Provided that no person who has any financial interest in the manufacture import or sale of any article of food shall be appointed to be a Food Inspector under this section.

(2) Every Food Inspector shall be deemed to be a public servant within the meaning of Sec. 21 of the Indian Penal Code (45 of 1860), and shall be officially subordinate to such authority as the Government appointing him, may specify in this behalf.

Section 10. Powers of Food Inspectors

(1) A Food Inspector shall have power-

(a) To take samples of any article of food from-

(i) Any person selling such article

(ii) Any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee:

(iii) A consignee after delivery of any such article to him and

(b) To send such sample for analysis to the Public Analyst for the local area within which such sample has been taken;

²[(c) With the previous approval of the Local (Health) Authority having jurisdiction in the local area, concerned, or with the previous approval of the Food (Health) Authority, to prohibit the sale of- any article of food in the interest of public health.]

³[Explanation-For the purposes of sub-clause (iii) of’ Cl. (a), consignee” does not include a person who purchases or receives any article of food for his own consumption.]

¹[(2) Any Food Inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis:

Provided that no sample of any article of food, being primary food, shall be taken under this sub-section if ‘it is intended for sale as such food].

(3) Where any sample is taken under Cl. (a) of sub-section (1) or sub-section (2), its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken.

(4) If any article intended for food appears to any Food Inspector to be adulterated or misbranded, he may seize and carry away or keep in the safe custody of the vendor such article in order that it may be dealt with as hereinafter provided; 2[and he shall, in either case, take a sample of’ such article and submit the same for analysis to a public analyst):

⁴[Provided that where the Food Inspector keeps such article in the safe custody of the vendor he may require the vendor to execute a bond for a sum of money equal to the value of such article with one or more securities as the Food Inspector deems fit and the vendor shall execute the bond accordingly.]

²[(4-A) Where any article of food seized under sub-section (4) is of a perishable nature and the local (Health) Authority is satisfied that such article of food is so deteriorated that it is unfit for human consumption, the said Authority may, after giving notice in writing to the vendor, cause the same to the destroyed.]

(5) The power conferred bv this section includes power to break open any package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale

⁵[Provided that the power to break open the package or door shall be exercised only after the owner or any other person in charge of the package or, as the ease may be, in Occupation of premises, if he is present therein, refuse,, to open the package or door on being called upon to do so, and in either case after recording the reasons for doing so :]

Provided further that the Food Inspector shall, in exercising the powers of entry upon, arid inspection of any place under this section, follow, as far as may be the provisions of the ⁶[Code of Criminal Procedure, 1973 (2 of 1974)], relating to the search or inspection of a place by a police officer executing a search-warrant issued under that Code.

(6) ⁷[Any adulterant found in the possession of a manufacturer or distributor of, or dealer in any article of food or in any of the premises occupied by him as such] and for the possession of which he is unable to account to the satisfaction of the Food Inspector and any books of account or other documents found in his possession or control and which would be useful for, or relevant to any investigation of proceeding under this Act, may be seized by the Food Inspector and a sample of such adulterant submitted for analysis to a public analyst :

⁸[Provided that no such books of account or other documents shall be seized by the Food Inspector except with the previous approval of the authority to which he is officially subordinated (7) Where the Food Inspector takes any action under Cl. (a) of subsection (1), sub-section (2), sub-section (4) or sub-section (6), he shall ⁹[call one or more persons to be present at the time when such action is taken and take his or their signatures].

¹⁰[(7-A) Where any books of account or other documents are seized under subsection (6), the Food Inspector shall within a period not exceeding thirty days from the date of seizure, return the same to the person from whom they were seized after copies thereof or extracts therefrom as certified by that person in such manner as may be prescribed have been taken:

Provided that where such person refuses to so certify, and a prosecution has been instituted against him under this Act, such books of account or other documents shall be returned to him only after copies thereof or extracts therefrom as certified by the Court have been taken.

(7-B) When any adulterant is seized under sub-section (6), the burden of proving that such adulterant is not meant for purposes of adulteration shall be on the person from whose possession such adulterant was seized.]

(8) Any Food Inspector i-nay exercise the powers of a police officer ¹¹[under Sec. 42 of the Code of Criminal Procedure, 1973 (2 of 1974)] for the purpose of ascertaining the true name and residence of the person from whom a sample is taken or an article of food is seized.

(9) Any Food Inspector exercising powers under this Act or under the rules made thereunder who-

(a) Vexatiously and without any reasonable grounds of suspicion seizes any article of food ¹¹[or adulterant]: or

(b) Commits any other act, to the injury of any person without having reason to believe that such act is necessary for the execution of his duty; Shall be guilty of an offence under this Act and shall be punishable for such offence ¹¹[with fine which shall not be less than five hundred rupees but which may extend to one thousand rupees].

——————–

1. Vinod Kumar v. State of Punjab, 1983 Cr. L.J.177 at p. 178 (P. & H.) I see also Hariram v. State of M.P., 1992 Cr.L.J.2135 at p. 3138 (M.P.) 1993 (1) E.F.R 160 at p. 168 (M.P); State of U.P. v Hanif. 1992 Cr.L.J. 1429 at {. 1431 (S.C.).

2. Subs. by Act 34 of 1976, Sec. 8 (w.e.f. I st April, 1976)

3. Ins. by Act 34 of 1976, Sec. 8 (w.e.f. I st April, 1976).

4. Ins. by Act 49 of 1964, Sec. 6 (w.e.f. Ist March. 1965).

5. Subs. by Act 34 of 1976. Sec. 8, for the first proviso (w.e.f. Ist April 1976).

6. Subs by ibid. for “the code of Criminal Procedure. 1898” (w.e.f. Ist April 1976).

7. Subs. by 34 of 1976. Sec. 8, for certain words (w.e.f. Ist April, 1976).

8. Subs. by ibid, for the former proviso (w.e.f. 1st April, 1976).

9. Subs. by Act of 1964, Sec. 6. For certain words (w.e.f. 1st March, 1965)

10. Ins. by Act 34 of 1976, Sec. 8 (w.e.f. 1st April, 1976).

11. Sadhram v. State of M.P.1995 (1) E.F.R. 638 at p. 639 (M.P.).

Section 11. Procedure to be followed by Food Inspectors

(1) When a Food Inspector takes a sample of food for analysis, he shall-

(a) Give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any whose name, address and other particulars have been disclosed Sec. 14-A:

(b) Except in special cases provided by rules under this Act, divide the sample then and there into three part and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as maybe prescribed:

Provided that where such person refuses to sign or put his thumb impression the Food Inspector shall call upon one or more witnesses and take his or their signature or thumb impressions, as the case may be, in lieu of the signature or thumb impression of such person;

(C) (i) Send one of the parts for analysis to the public analyst under Intimation to the Local (Health) Authority: and

(ii) Send the remaining two parts to the Local (Health) Authority for the purposes of sub-section (2) of this section of sub-Sections (2-A) and (2-F,) of Sec.13.

(2) Where the part of the sample sent to the public analyst under sub- clause (i) of Cl. (c) of’ sub-section (1) is lost or damaged, the Local (Health) Authority shall, on a requisition made to it by the public analyst or the Food Inspector despatch one of the parts of the sample sent to it under sub- clause (ii) of the said C1. (C) To the public analyst for analysis.]

(3) When a sample of any article of food ¹[or adulterant] is taken under sub- section (1) or sub-section (2) of Sec. 10. ²[the Food Inspector shall, by the immediately succeeding working day, send a sample of the article of food or adulterant or both, as the may be,] in accordance with the rules prescrilbed for shambling to the public analyst for the local area concerned.

³[(4) An article of food seized under- sub-section (4) of See, 10,’Unless destroyed under sub-section (4-A) of that section, and any adulterant seized under sub-sections (6) of’ the section, shall be produced before a Magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the public analyst].

Provided ⁴[* * *] that if an application is made to the Magistrate in this behalf by the person from whom any article of food has been seized, the Magistrate shall , by order in writing direct the Food Inspector to produce such article before him within such time as may be specified in

⁵[(5) If it appears to the Magistrate on taking such evidence as he may deem necessary-

(a) That the article of food produced before him under sub- section (4) is adulterated or misbranded he may order it-

(i) To be forfeited to’ the Central Government, the State Government or the local authority, as the case may be , or

(ii) To be destroyed at the cost of the owner or the person from whom it was seized so as to prevent its being used as human food; or

(iii) To be so disposed of’ as to prevent its being again exposed for sale or used for food under its deceptive name; or

(iv) To be returned to the owner, on his executing a bond with or without sureties, for being sold under its appropriate name or, where the Magistrate is satisfied that the article of food is capable of being made to conform to prescribed standards for human consumption after reprocessing, for being sold after reprocessing under the supervision of such officer as may be specified in the order;

(b) That the adulterant seized under sub-section (6) of Sec. 10 and produced before him is apparently of a kind which may be employed for purposes of adulteration and for the possession of which the manufacturer, distributor or dealer, as the case may be, is unable to account satisfactorily, he may order it to be forfeited to the Central Government, the State Government or the local authority, as the case may be.]

(6) ⁶[If it appears Io the Magistrate that- any such-

(a) Article of food is not adulterated: or

(b) Adulterant which is purported to be an adulterant is not an adulterant,

The person from whose possession the article of food or adulterant was taken] shall be entitled to have it restored to him and it shall be in the discretion of the Magistrate to award such person from such fund as the State Government may direct in this behalf, such compensation not exceeding the actual loss which he has sustained as the Magistrate may think proper.

STATE AMENDMENT

Maharashtra. – In Sec.11 of the principal Act in sub-section (5), in Cl. (a) for the words “local authority”. the words “State Government” shall be substituted. ⁷

——————–

1. Ins. by Act 34 of 1976, Sec.9 (w.e.f. Ist April 1976).

2. Subs. by ibid., (w.e.f.) Ist April, 1976) .

3. Subs. by ibid., Sec. 9 (w.e.f. Ist April. 1976), for sub –section (4)and first proviso.

4. The word “further’’ omitted by ibid., Act 34 of 1976. Sec 9 (w.e.f. Ist April , 1976).

5. Subs. by ibid., for the sub- section (5).

6. Subs. by Act 34 of 1976. Sec. 9. for certain words.

7. Vide Maharashtra Act, 1975 (L of 1975) ‘ published in the Maharashtra Government Gazette. Pt. IV, dated 16th’October. 1975 (‘W.e.f. 11th April, 1977).

Section 12. Purchaser may have food analysed

Nothing contained in this Act shall be held to prevent a purchaser of any article of food other than a Food Inspector ¹[or a recognised consumer association, whether the purchaser is a member of that association or not,] from having such article analysed by the public analyst on payment of such fees as may be prescribed and from receiving from the public analyst a report of’ his analysis:

Provided that ²[such purchaser or recognised consumer association shall inform the vendor at the time of purchase of his or its intention] to have such article so analysed provided further that the provisions of sub-sections (1), (2) and (3) of Sec. 11 shall, as far as may be, apply to a ³[purchaser of article of food or recognised consumer association who or which intends] to have such articles so analysed, as they apply to a Food Inspector who takes sample of food for analysis:

Provided also that if the report of the public analyst shows that the article of food is adulterated, the ⁴[purchaser or recognised consumer association shall be entitled to get refund of the fees paid by him or it] under this section.

⁵[Explanation. -For the purposes of this section and Sec. 20 recognised consumer association” means a voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or under any other law for the time being in force].

——————–

1. Ins. by Act 70 of 1986, Sec,. 2 (w.e.f. I st May, 11)87).

2. Subs. by Act 70 of 1986. Sec. 2, for words “such purchaser shall inform the vendor at the time of purchase of his intention.”

3. Subs. by Sec. 2, ibid. For the words purchaser of article. Of food who intends”.

4. Subs. by Sec. 2, ibid. for the words “purchaser shall be entitled to get refund of the fees paid by him”.

5. Ins. by Sec. 2. Ibid.

Section 13. Report of public analyst

¹[(1) The public analyst shall deliver, in such from as may be prescribed. a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.

(2) On receipt of the report of the result of the analysis under subsection (1) to the effect that the article of food is adulterated the Local (Health) Authority shall, after the institution of prosecution against persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Sec. 14-A forward, in Such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of ‘receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

²(2-A) When an application is made to the Court under sub-section (2), the Court shall require the Local (Health) Authority to forward the parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the Court within a period of five days from the date o receipt of such requisition.

(2-B) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2-A), the Court shall first ascertain that the mark and sea] or fastening as provided in Cl. (b) of sub-section (1) of Sec. 11 are intact and the signature or thumb impression, as the ease may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.

(2-C) Where two parts of ‘the sample have been sent to the Court and only one part of- the sample has been sent by the Court to the Director of the Central Food Laboratory under subsection (2-B), the Court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the Court:

Provided that where the part of the sample sent by the Court to Director of the Central Food Laboratory is lost or damaged, the Court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the Court and on receipt thereof the Court shall proceed in the manner provided in sub-section (2-B).

(2-D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the Court shall not continue with the proceedings pending before it in relation to the prosecution.

(2-E) It, after considering the report, if any, of the Food Inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of sub-sections(2) to (2-D)) shall, so far as may be, apply.]

(3) The certificate issued by the Director of the Central Food Laboratory under sub-section (2-B) shall supersede the report given by the public analyst under subsection (1).

(4) Where a certificate obtained from the Director of the Central Food Laboratory ²[under sub- section (2-B)] is produced in any proceeding under this Act or under Sees. 272 to 276 of the Indian Penal Code (45 of 1860), it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis.

(5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sees. 272 to 276 of the Indian Penal Code:

³[Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory [not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub- section (I -A) of Sec. 161 shall be final and conclusive evidence of the facts stated therein.]

⁴[Explanation-In this section, and in Cl. (9 of sub-section (1) of Sec. 16, “Director of the Central Food Laboratory” shall include the officer I or the time being in charge of any Food Laboratory (by whatever designation he is known) recognised by the Central Government for the purposes of this section.

——————–

1. Subs. by Act 34 61’1 976. Sec. I 0. for sub-section (1) and (2) (w.e.f. I st April 1976).

2. Subs. by Act 34 of 1976. Sec.10 for under sub-section(2)” (w.e.f. I st April 1976).

3. Subs. by Act 34 of 1976. Sec. 10 for proviso (w .e . f. I st April 1976).

4. Ins. Ibid. (W.e.f. Ist April. 1976).

Section 14. Manufacturers, distributors, and dealers to give warranty

¹[Manufacturers, distributors, and dealers to give warranty. No ²[manufacturer or distributor of, or dealer in] any article of food shall sell such article to any vendor unless lie also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor :

³[Provided that a bill, cash memorandum or invoice in respect of the sale of’ any article of food given by a manufacturer or distributor of, or dealer in such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section]

Explanation-In this section, in sub-section (2) of Sec. 19 and in Sec. 20-A, the expression “distributor” shall include a commission agent.

——————–

1. Subs. by Act 49 of 1964. Sec. 14 (w.e.f. Ist March 1965).

2. Subs. by Act 34 of 1976, Sec, 7 for Sec. (w.e.f. Ist April, 1976).

3. Ins, by ibid. For the proviso (w.e.f. . I st April 1976).

Section 14 A. Vendor to disclose the name, etc. of the person from whom the article of food was purchased

Every vendor of an article of food shall, if so required, disclose to the Food Inspector the name, address and other particular of the persons from whom he purchased the article of food.

Section 15. Notification of food poisoning

¹[The Central Government or the State Government] may, by notification in the Official Gazette, require medical practitioners carrying on their profession in any local area specified in the, notification to report all occurrences of food poisoning coming within their cognizance to such officer as may be specified in the notification.

——————–

1. Municipal Corporation of Delhi v. Ram Chand. (1985) I-F A.C 79 at P. 84 (Delhi).

Section 16. Penalties

¹[(1) Subject to the provisions of subsection (I -A) it any person, -

(a) Whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food—

(i) Which is adulterated within the meaning of sub-clause (m) Of Cl. (i-a) of Sec. 2 or misbranded within the meaning of Cl. (ix) Of that section or the sale of’ which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;

(ii) Other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder ; or

(b) Whether by himself or bv any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any adulterant which is not injurious to health; or

(c) Prevents a Food Inspector from taking a sample as authorised by this Act : or

(d) Prevents a Food Inspector from exercising any other power conferred on him by or under this Act : or

(e) Being a manufacturer of an article of food, has in his possession, or in any of- the premises occupied by him, any adulterant which is not injurious to health; or

(f) Uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory or by a public analyst or any extent thereof for the purpose of ‘advertising any article of food; or

(g) Whether by himself or by any other person on his behalf, gives to the vendor, a false warranty in writing in respect of any article of food sold by him, he shall, in addition to the penalty to which he may be liable under the provisions of Sec. 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees’:

Provided that-

(i) If the offence is under sub-clause (i) of Cl. (a) and is with respect to an article of food, being primary food which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of Cl. (ix) of Sec. 2or

(ii) If the offence is under sub-section (ii) of Cl. (a), but not being an offence with respect to the contravention of any rule made under Cl. (a) or Cl. (g) of sub-section (I-A) of See. 23 or under Cl. (b) of sub-section (2) of See 24,

The Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees:

Provided further that if offence is under sub-clause (ii) of Cl. (a) and is with respect to the contravention of any rule made under Cl. (a) or Cl. (g) of sub-section (I -A) of Sec. 23 or under Cl. (b) of sub-section (2) of Sec. 24, the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees.]

²[(I-A) If ‘any person whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes, -

(i) Any article of food which is adulterated within the meaning of any of sub- clauses (e) to (1) (I-) both inclusive) of Cl. (i-a) of Sec. 2, or

(ii) Any adulterant which is injurious in addition to the penalty to which he may be liable under the provisions of’ Sec.6, be punishable with imprisonment for a term which shall not be less than one year but which may extend to six years and with fine which shall not be less than two thousand rupees :

Provided that if such article of food or adulterant when consumed by any person is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Sec. 320 of the Indian Penal Code (45 of 1860), he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with line which shall not be less than five thousand rupees.]

³[(i-AA) If any person in whose safe, custody any article of food has been kept under sub-section (4) of Sec. 10, tampers or in any manner interferes with such article, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which shall not less than one thousand rupees.]

⁴[(l -B) If any Person in whose safe, custody any article of food has been kept under sub- section (4) of ‘Sec. IO sells or distributes such article, which is found by the Magistrate before whom it is produced to be adulterated within the meaning of sub-clause (h) of Cl. (i-a) of Sec. 2 and which, when consumed by any person, is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Sec. 320 of the Indian Penal Code (45 of 1860), then, notwithstanding anything contained in sub-section (I -AA), he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees.]

(I-C) If any person contravenes the provisions of Sec. 14 or Sec. 14-A, he shall be punishable with imprisonment for a term, which may extend to six months and with fine, which shall not be less than five hundred rupees.

(I -D) If any person convicted of an offence under this Act commits a like offence afterwards, then, without prejudice to the provisions of’ sub-section (2), the Court, before which the second or subsequent conviction takes place, may order the cancellation of the licence, if any, granted to him under this Act and thereupon such licence shall, notwithstanding anything contained in this Act or in the rules made thereunder, stand cancelled.

(2) If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the Court before which the second or subsequent conviction takes place to cause the offender’s name and place of residence, the offence and the penalty imposed to be published at the offender’s expense in such newspapers or in such other manner as the Court may direct. The expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner- as a fine.

STATE AMENDMENT

West Bengal. -In Se. 16. -

(a) In sub-section (1),,for the words “a term which shall riot be less their? Six months but which may extend to six year. And with fine which shall not be less than one thousand rupees.” The world “ life and shall also be liable to fine” shall be substituted:

(b) In the proviso to sub-section (1) for the worlds “ the Court may for any adequate and special reasons to be mentioned in the judgment. Impose a sentence of imprisonment for a term of less than six months and fine of less than one thousand rupees”. The following words shall be substituted. namely:

“If the Court thinks that for any adequate and special reasons to be mentioned in the judgment a lesser sentence would serve the end of justice. The judgment the Court may impose a sentence which is less than a sentence of imprisonment for life.”

In subsection (I -B), _for the words “a term of six year and with fine which shall not be less than one thousand rupee.” the words “life and shall also be liable to fine” shall be substituted. ⁵

——————–

1. Subs. Act 34 of 1976, Sec. 12 (w.e.f. Ist April 1976),

2. Ins. by Act 34 of 1976. Sec. 12 (w.e.f.Ist April 1976).

3. Sub-section (1-A) renumbered (as sub- section I-AA) by Sec. 12 of the Act 34 of 1976 (w.e.f. 1st April. 1976 ).

4. Subs. by ibid. For sub-section (1-B) (w.e.f.1 st April. 1976).

5. Vide the West Bengal Act (XLIIof-1973) published in the Calcutta Gazette. Pt.11I No. 267. dated 29th April 1974.

Section 16 A. Power of Court to try cases summarily

¹[Power of Court to try cases summarily. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under subsection (1) of Sec. 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Secs. 262 to 265 (both inclusive) of the said Code shall, as far is may be, apply to such trial:

Provided that in the ease of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year:

Provided further that when at the commencement of, or in the course of a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence Of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.]

——————–

1. Ins. by Act 34 of 1976, Sec. 13 (w.e.f. lst April, 1976).

Section 17. Offences by companies

¹[Offences by companies. (1) Where an offence under this Act has been committed by a company-

(a) (i) The person, if any, has been nominated under sub-section (2)to be in charge of, and responsible to the company for the conduct of the business of the company (hereafter in this section referred to as the person responsible), or

(ii) Where no person has been so nominated, every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company; and

(b) The company

Shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.

(2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated.

Explanation-Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.

(3) The person nominated under sub-section (2) shall, until-

(i) Further notice cancelling such nomination is received from the company by the Local (Health) Authority; or

(ii) He ceases to be a director or, as the case may be, manager of the company: or

(iii) He makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination which request shall be complied with by the Local (Health) Authority, whichever is the earliest, continue to be the person responsible:

Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of’ such cesser to the Local (Health) Authority:

Provided further that where such person makes a request under Cl. (iii) the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made.

(4) Notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company not being a person nominated under subsection (2), such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation-For the purposes of this section, -

(a) “Company” means any body corporate and includes a firm or other association of individuals:

(b) “Director”, in relation to a firm, means a partner in the firm; and

(c) “Manager” in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it.

——————–

1. Subs. by Act 34 of 1976. Sec. 14, for Sec. 17 (w.e.f. 1st April 1976).

Section 18. Forfeiture of property

Where any person has been convicted under this Act for the contravention of any of the provisions of this Act or of any rule there under, the article of food in respect of which the contravention has been committed may be forfeited to the Government.

¹[Provided that where the Court is satisfied that the article of food is capable of being made to conform to prescribed standards for human consumption after reprocessing, the Court may order the article of food to be returned to the owner, on his executing a bond with or without sureties, or being sold, subject to the other provisions of this Act, after reprocessing under the supervision of such officer as may be specified therein.

——————–

1. Ins by Act 34 of 1976, Sec. 15 (w.e.f. 1st April 1976)

Section 19. Defences, which may or may not be allowed in prosecutions under this Act

(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any Adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.

¹(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if lie proves-,

(a) That he purchased the article of- food–

(i) In a case where a licence is prescribed for the sale thereof, from a daily licensed manufacturer, distributor or dealer;

(ii) In any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and

(b) That the article of food while in his possession was property stored and That he sold it in the same State as he purchased it.]

(3) Any person by whom a warranty as is referred to, ²[in Sec. 14] is alleged to have been given shall be entitled to appear at the hearing and give evidence.

STATE AMENDMENTS

Uttar Pradesh. –After Sec. 19, the Allowing section shall be inserted. namely:

“19A.Burden of proof. –. When any article intended for food is seized from any person under sub-section (4) of ‘Sec I 0 by a Food inspector in the reasonable belief that the same is adulterated or misbranded, the burden of proving that Such article intended for food is not adulterated or. Misbranded shall be on the person from whose possess such article intended for food was seized. “³

West Bengal. -After Sec. 19. The, following section shall be inserted, namely: Burden-of–proof. -When any article intended for food is seized from any person in the reasonable belief that the same is adulterated or misbranded the burden of proving that such article intended for _food is not adulterated or misbranded shall be on the person from whose possession such article intended for food was seized.⁴

——————–

1. Subs. by Act 49 of 1964 sec 10 (w.e.f. 1st March. 1965).

2. Subs. by ibid for the words “in sub-section (2)” (w.e.f. 1st march, 1965).

3. Vide the Prevention of Adulterated of Food, Drugs and Cosmetics (Uttar Pradesh Amendment) Act. 1974 (U.P. Act No- 47 of 1975) (w.e f. 15th December, 1975).

4. Vide the West Bengal Act XLII of 19’73. published in the Calcutta Gazette, Pt. 111, No. 267, dated 29th April, 19,14 (w.e.f. 29tti April, 1974).

Section 20. Cognizance and trial of offences

¹[(1) No prosecution for an offence under this Act, not being an offence under this Sec. 14 or Sec. 14-A] shall be instituted except by, or with the written consent of, ²[the Central Government or the State Government ³[***] or a person authorised in this behalf by general or special order, by the Central Government or the State Government ²[***]:

Provided that a prosecution for an offence under this Act may be instituted by a purchaser ⁴[or recognisede consumer association] referred instituted to in Sec. 12 ⁵[if he or it produces] in Court a copy of the report of the public analyst along with the complaint.

⁶[(2) No Court interior to that of Metropolitan Magistrate or a, Judicial Magistrate of the first class shall try any offence under this Act.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence, punishable under sub-section (I -AA) of Sec. 16 shall be cognizable and non-bailable.]

STATE AMENDMENT

West Bengal. -For Sec. 20, the following section shall be inserted, namely:”20. Cognizance offences and arrest without warrant. -(1) All offences punishable under this Act shall be cognizable and non-bailable.

(2) Any police officer not below the rank of a Sub- Inspector of police may arrest without warrant any person against whom a reasonable complaint has been made or credible information has been received 0f his having been concerned in any of the offences punishable under this Act.” ⁷

——————–

1. Subs. by Act 34 of 1976, Sec. 16 (w.e.f. Ist, April 1976).

2. Subs by Act 49 to 1964, Sec. II for certain words (w.e.f. Ist March 1965).

3. The words “or a local Authority” emitted by Act 34 oi’1976, Sec. 16 I-or certain words (w.e.f. Ist April 1976).

4. Ins. by Act 70 of 1986, Sec. 3 (a) (w.e.f.Ist May, 1987).

5. Subs. by sec. 3 (b), ibid. (w.e.f. Ist May, for the words “if he produces”.

6. Subs. by Act 34 of 1976, sec. 16.

7. Vide the west Bangal Act (XLII of 1973), published in the Calcutta Gazette, pt. III. No.267, dated 29th April, 1974 (w.e.f.29th April, 1974).

Section 20 A. Power of Court to implead manufacturers, etc

¹[Power of Court to implead manufacturers, etc. Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then the Court may, notwithstanding anything contained in ²[sub-section (3) of Sec. 319 of the Code of Criminal Procedure, 1973 (2 of 1974)], or in Sec. 20 proceed against him as though a prosecution had been instituted against him under Sec. 20.]

——————–

1. Ins. by Act 49 of 1964, Sec. 12 (w.e.f. 1 st March, 1965).

2. Subs. by Act 34 of 1976, Sec. 17, for certain words (w.e.f. I st April. 1976).

Section 20 AA. Application of the Probation of Offenders Act, 1958 and Sec. 360 of the Code of Criminal Procedure, 1973

¹[Application of the Probation of Offenders Act, 1958 and Sec. 360 of the Code of Criminal Procedure, 1973. Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958), or Sec. 360 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age.

——————–

1. Ins. by Act 34 of 1976 . Sec. 18 (w.e.f. 1st April, 1976).

Section 21. Magistrate’s power to impose enhanced penalties

¹[Magistrate’s power to impose enhanced penalties. Notwithstanding anything contained in Sec. 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the first class to pass any sentence authorised by this Act, except a sentence of imprisonment for life or for a term exceeding six years, in excess of his powers under the said section.]

——————–

1. Subs. by Act 34 of 1976, sec 19 (w.e.f. 1st April, 1976)

Section 22. Protection of action taken in good faith

No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act.

Section 22 A. Power of Central Government to give directions

¹[Power of Central Government to give directions. The Central Government may give such directions as it may deem necessary to a State Government regarding the carrying into execution of all or any of the provisions of this Act and the State Government shall comply with such directions.]

——————–

1. Ins. by Act 34 of- 1976. Sec. 20 (w.e.f. 1 st April, 1976).

Section 23. Power of the Central Government to make rules

¹(1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of ‘this Act:

Provided that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen which render it necessary to make rules without such consultation, but in such a case, the Committee shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the amendment, of the said rules.]

²[(1-A) ³[in particular arid without particular and without prejudice to the generality of the foregoing power, such rules may provide lot- all or any of the following matters, namely:]

(a) Specifying the article of food or classes of’ food for the import of which a licence is required] and prescribing the form and Conditions of’ such licence, the authority empowered to issue the same, ⁴[the fees payable therefor, the deposit of any sum as security for the performance of the conditions of the licence and the circumstances under which such licence or security may be cancelled or forfeited]:

(b) Defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food:

(c) Laying down special provisions for imposing rigorous control over the production, distribution and sale of any article or class of articles of food which the Central Government may, by notification in the Official Gazette, specify in this behalf including registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such article or class or articles;

(d) Restricting the packing and labelling of any article of food arid the design of any such package or label with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article or to preventing adulteration;

(e) Defining the qualifications, powers and duties of Food Inspectors and public analyst;

(ee) Defining the laboratories where samples of articles of food or adulterants may be analysed by public analyst under this Act;

(f) Prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture or sale of any article of food

(g) Defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health

(h) Specifying the manner in which containers for samples of food purchased for analysis shall be sealed tip or fastened up

(hh) Defining the methods of ‘analysis:]

(i) Specifying a list of permissible preservatives, other than common salt arid sugar, which alone shall be used in preserved fruits, vegetables, or their products or any other article of food as well as the maximum amount of each preservative:

(j) Specifying the colouring matter and the maximum quantities therefor which may be used in any article of food;

(k) Providing for exemption from this Act or of any requirements contained there and subject to such condition, if any as may be Specified of any article or class of articles of food;

(l) Prohibiting or regulating the manufacture, transport or sale of any article known to be used as an adulterant of food;

(m) Prohibiting or regulating-

(i) The addition of any water, or other diligent or adulterant to any article of food;

(ii) The abstraction of-any ingredient from any article of food

(iii) The sale of any article of food to which such addition or from which such abstraction has been made or which has been otherwise artificially treated;

(iv) The mixing of two or more articles of food which are similar in nature or appearance, ,

(n) Providing for the destruction of such articles of food as are not in accordance with the provisions of this Act or of the rules made thereunder

⁵[(2) Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days ⁶[which may be comprised in one session or in two or more successive sessions, and it before the expiry of ‘the session immediately following the session or the successive sessions aforesaid] both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be: so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]

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1. Ins. by Act 34 of 1976, Sec. 21 (w.e.f. I st April 1976).

2. Remunerated by Act 34 of 1976, Sec. 21 (w.e.f. Ist April 1976).

3. Subs. by ibid, for certain words (w.e.f. Ist April, 1976).

4. Subs. by Act 49 of 1964, Sec.13. for the words and fees payable therefor” (w.e.f- Ist March, 1965).

5. Subs. by Act 49 of 19b4. NCC. 13 (w.e.f. lst March, 1965).

6. Subs. by Act 34 of 1976, Sec. 21, for certain words (w.e.f. Ist April, 1976).

Section 24. Power of the State Government to make rules

(1) The State Government may, after consultation with Committee and subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act in i-natters not falling within the purview of Sec. 23.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may-

(a) Define the powers and duties of the Food (Health) Authority, ¹[local authority and Local (Health) Authority under this Act ²[* * *]:

(b) Prescribe the forms of licences for the manufacture for sale, for the storage, for the sale and for the distribution of articles of food or any specified article of food or class of articles of food, the form of’ application for such licences the conditions subject to which such licences may be issued, the authority empowered to issue the same, ³[the fees payable therefor], the deposit of any sum as security for the performance of the conditions of the licences and the circumstances under which such licences or security ⁴[may be suspended, cancelled or forfeited]:

(c) Direct a fee to be paid for analysing any article of food or for any matter, for which a fee may be prescribed under this Act,

(d) Direct that the whole or any part of the fines imposed under this Act shall be paid to a local authority on realization

(e) Provide for the delegation of the powers and functions conferred by this Act on the State Government or the Food (Health) Authority to subordinate authorities or to local authorities.

(3) All rules made by the State Government under this Act, shall, as soon as possible after they are made, be laid before the respective State legislatures.

STATE AMENDMENT

Maharashtra. -In Sec. 24 o the principal Act, in sub -section (2), in Cl. (d) for the words “shall be paid to a local authority on realization”, the words “shall, on realization, be paid either to ct local authority. Or officer of the State Government is appointed, as the local authority, be credited to the Consolidated fund of the State” shall be substituted⁵.

——————–

1. Subs. by Act 34 of 1976, Sec. 22, for “and local authority”.

2. Certain words omitted by Act 49 of 1964, Sec. 14 (w.e.f. I st March 1965).

3. Subs. by ibid. for the words “and the fees payable therefor”.

4. Subs. by Act 34 of 1976, Sec. 22, for the words “may be cancelled for forfeited” (w.e.f. Ist April 1976),

5. Vide Maharashtra Act (I of 1975) published in the Maharashtra Government Gazette, Pt. IV, dated the 16th October 1975 (w.e.f. 11 Th April 1977).

Section 25. Repeal and saving

(1) It immediately before the commencement of this Act, there is in force in any State to which this Act extends any law Corresponding to this Act, that corresponding law shall upon such commencement stand repealed.

(2) Notwithstanding the repeal by this Act of any corresponding law, all rules, regulations and bye-laws relating to the prevention of adulteration of food made under such corresponding law and in force immediately before the commencement of this Act shall, except where and so far as they are inconsistent with or repugnant to the provisions of this Act, continue in force until altered, amended or repealed by rules made under this Act¹.

——————–

1. In its application to the State of Jammu and Kashmir in Sec. 25 after sub-section (2), the following sub-section shall be inserted, namely:

Plantation Labour Act

November 30, 2014

Preamble

[Act No. 69 of 1951]

AN ACT TO PROVIDE FOR THE WELFARE OF THE LABOUR, AND TO REGULATE THE CONDITIONS OF WORK, IN PLANTATIONS Be it enacted by Parliament in the fifth year of Republic of India as follows :

Section 1. Short title, extent, commencement and application.

(1) This Act may be called the Plantation Labour Act, 1951.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification in the official Gazette, appoint.

(4) It applies to the following plantations, that is to say, – (a) to any land used or intended to be used for growing tea, coffee, rubber cinchona or cardamom which admeasures 5 hectares or more and in which fifteen or more persons are employed or were employed on any day of the proceeding twelve months;

(b) to any land used or intended to be used for growing any other plant, which admeasures 5 hectares or more and in which fifteen or more persons are employed or were employed on any day of the preceding twelve months, if, after obtaining the approval of the Central Government, the State Government, by notification in the official Gazette, so directs.

Explanation : Where any piece of land used for growing any plant, referred to in Cl. (a) or Cl. (b) of this sub-section admeasures less than 5 hectares and is contiguous to any other piece of land not being so used but capable of being so used, and both such piece of land are under the management of the same employer, then, for the purposes of this sub-section, the piece of land first mentioned shall be deemed to be a plantation, if the total area of the both such pieces of the land admeasures 5 hectares or more.

(5) The State Government may, by notification in the official Gazette, declare that all or any of the provision of this Act shall apply also to any land used or intended to be used for growing any plant referred to Cl. (a) or Cl. (b) of sub-section (4), notwithstanding that -

(a) it admeasures less than 5 hectares, or

(b) the number of persons employed therein is less than fifteen :

Provided that no such declaration shall be made in respect of such land which admeasured less than 5 hectares or in which less than fifteen persons were employed, immediately before the commencement of this Act.

Section 2. Definitions.

In this Act, unless the context otherwise requires, -

(a) “adolescent” means a person who has completed his fourteenth year but has not completed his eighteenth year :

(b) “adult” means a person who has completed his eighteenth year;

(c) “child” means a person who has not completed his fourteenth year;

(d) “day” means a period of twenty – four hours beginning at midnight;

(e) “employer”, when used in relation to a plantation, means the person who has the ultimate control over the affairs of the plantation, and where the affairs of any plantation are entrusted to any other person (whether called a managing agent, manager, superintendent or by other name) such other person shall be deemed to be the employer in relation to that plantation;

(ee) “family”, when used in relation to a worker, means – (i) his or her spouse, and

(ii) the legitimate and adopted children of the worker dependent upon him or her, who have not completed their eighteenth year. and includes, where the worker is a male, his parents dependent upon him.

(eee) “Inspector” means an inspector of plantations appointed under sub-section (1) of Sec. 4 and includes an additional inspector of plantations appointed under sub-section (1-A) of that section;

(f) “plantation” means any plantation to which this Act, whether wholly or in part, applies and includes offices, hospitals, dispensaries schools, and any other premises used for any purpose connected with such plantation, but does not include any factory on the premises to which the provisions of the Factories Act, 1948 (64 of 1948), apply.

(g) “prescribed” means prescribed by rules under this Act;

(h) “qualified medical practitioner” means a person holding a qualification granted by an authority specified or notified under Sec. 3 of the Indian Medical Degrees act, 1916 (7 of 1916), or specified in the Schedules to the Indian Medical Council Act, 1956 (102 of 1956), and includes any person having a certificate granted any Provincial or State Medical Council Act;

(i) “wages” has the meaning assigned to it in Cl. (h) of Sec. 2 of the Minimum Wages Act, 1948 (11 of 1948).

(j) “week” means a period of seven days beginning at midnight on Saturday night or such other night as may be fixed by the State Government in relation to plantations in any area after such consultation as may be prescribed with reference to the plantations concerned in that area;

(k) “worker” means a person employed in a plantation for hire or reward, whether directly or through any agency, to do any work, skilled, unskilled, manual or clerical, but does not include – (i) a medical officer employed in the plantation;

(ii) any person employed in the plantation (including any member of the medical staff whose monthly wages exceed rupees seven hundred and fifty,

(iii) any person employed in the plantation primarily in a managerial capacity, notwithstanding that his monthly wages do not exceed rupees seven hundred and fifty; or

(iv) any person temporarily employed in the plantation in any work relating to the construction, development or maintenance of buildings, roads, bridges, drains or canals;

(l) “young person” means a person who is either a child for an adolescent.

Section 3. Reference to time of day.

In this Act, references to time of day are references to Indian Standard Time being five and a half hours ahead of Greenwhich Means Time : Provided that for any area in which the Indian Standard Time is not ordinarily observed, the State Government may make rules – (a) specifying the area;

(b) defining the local mean time ordinarily observed therein; and

(c) permitting such time to be observed in all or any of the plantations situated in that area.

Section 3A. Appointment of registering officers.

The State Government may by notification in the official gazette, – (a) appoint such persons, being gazetted officers of Government, as it thinks fit, to be registering officers for the purpose of this chapter, and

(b) define the limits within which a registering officer shall exercise the powers and discharge the functions conferred or imposed on him by or under this chapter.

Section 3B. Registration of plantations.

(1) Every employer of the plantation, existing at the commencement of the Plantations Labour (Amendment) Act, 1981, shall within a period of sixty days of such commencement, and every employer of any other plantation coming into existence after such commencement shall, within a period of sixty days of the coming into existence of such plantation, make an application to the registering officer for the registration of such plantation : Provided that the registering officer may entertain any such application after the expiry of the period aforesaid if he is satisfied that the applicant was prevented by sufficient cause from making the application within such period.

(2) Every applicant made under sub-section (1) shall be in such form and shall contain such particulars and shall be accompanied by such fees as may be prescribed.

(3) After the receipt of an application under sub-section (1) the registering officer shall register the plantation.

(4) Where a plantation is registered under this section, the registering officer shall issue a certificate of registration to the employer thereof in such form as many be prescribed.

(5) Where, after the registration of a plantation under this section, any change occurs in the on ownership or management or in the extent of the area or other prescribed particulars in respect of such plantation, the particulars regarding such change shall be intimated by the employer to the registering officer within thirty days of such change in such form as may be prescribed.

(6) Where as a result of any intimation received under sub-section (5), the registering officer is satisfied that the plantation is no longer required to be registered under this section, he shall, by order in writing, cancel the registration thereof and shall, as soon as practicable, cause such order to be published in any one newspaper in the language of, and having circulation in, the area where the plantation is situated.

Section 3C Appeals against order of registering officer.

(1) Any person aggrieved by the order of a registering officer under sub-section (6) of Sec. 3-B may, within thirty days of the publication of such order in the newspaper under that sub-section, prefer an appeal to such authority as may be prescribed. Provided that the appellate authority may entertain an appeal under this sub-section after the expiry of the aforesaid period if it is satisfied that the appellant was prevented by sufficient cause from referring the appeal within such period.

(2) After the receipt of an appeal under sub-section (1), the appellate authority may, after giving the appellant, the employer refereed to in sub-section (5) of Sec. 3-B and the registering officer an opportunity of being heard in the matter, dispose of the appeal as expeditiously as possible.

Section 3D. Power to make rules.

(1) State Government may, by notification in the official Gazette, make rules to carry out the purposes of this Chapter.

(2) In particular, and without prejudice to the generality of the fore-going power, such rules may provide for all or any of the following matters, namely :

(a) the form of application for the registration of a plantation, the particulars to be contained in such application and the fees to be accompanied along with such application;

(b) the form of the certificate of registration;

(c) the particulars regarding any change in respect of which intimation shall be given by the employer to the registering officer under sub-section

(5) of sec. 3-B and the form in which such change shall be intimated;

(d) the authority to which an appeal may be preferred under Sec. 3-C and the fees payable in respect of such appeal;

(e) the registers to be kept and maintained by the registering officer.

Section 4. Chief inspector and inspectors.

(1) The State Government may, by notification in the official Gazette, appoint for the State a duly qualified person to be the chief inspector of plantation and so many duly qualified person to be inspectors of plantation subordinate to the chief inspector as it thinks fit.

(1-A) The State Government may also, by notification in the official Gazette, appoint such officers of the State Government or of any local authority under its control, as it thinks fit, to be additional inspectors of plantation for all or any of the purpose of this Act.

(2) Subject to such rules as may be made in this behalf by the State Government, the chief inspector may declare the local area or areas within which, or the plantation with respect to which, inspectors shall exercise their powers under this Act, and may himself exercise the powers of an inspector within such limits as may be assigned to him by the State Government.

(3) The chief inspector and all inspectors shall be deemed to be public servants within the meaning of the Indian Penal Code, 1860 (45 of 1860).

Section 5. Power and functions of inspectors.

Subject to any rules made by the State Government in this behalf, an inspector may, within the local limits for which he is appointed – (a) make such examination and inquiry as he thinks fit in order to ascertain whether the provisions of the Act and of the rules made thereunder are being observed in the case of any plantation;

(b) with such assistants, if any, as he thinks fit, enter, inspect and examine any plantation or part thereof at any reasonable time for the purpose of carrying out the objects of this Act;

(c) examine the crops grown in any plantation or any worker employed therein or require the production of any register or other document maintained in pursuance of this Act, and take on the spot or otherwise statements of any person which he may consider necessary for carrying out the purpose of this Act;

(d) exercise such other powers as may be prescribed :

Provided that no person shall be compelled under this section to answer any question or make any statement tending to incriminate himself.

Section 6. Facilities to be afforded to inspectors.

Every employer shall afford the inspector all reasonable facilities for making any entry, inspection, examination or inquiry under this Act.

Section 7. Certifying surgeons.

(1) The State Government may appoint qualified medical practitioners to be certifying surgeons for the purposes of this Act within such local limits or for such plantation or class of plantations or it may assign to them respectively.

(2) The certifying surgeon shall carry out duties as may be prescribed in connection with – (a) the examination and certification of workers;

(b) the exercise of such medical supervision as may be prescribed where adolescents and children are, or are to be; employed in any work in any plantation which is likely to cause injury to their health.

Section 8. Drinking water.

In every plantation effective arrangements shall be made by the employer to provide and maintain at convenient places in the plantation a sufficient supply of wholesome drinking water for all workers.

Section 9. Conservancy.

(1) There shall be provided separately for males and females in every plantation a sufficient number of latrines and urinals of prescribed types so situated as to be convenient and accessible to workers employed therein.

(2) All latrines and urinals provided under sub-section (1) shall be maintained in a clean and sanitary condition.

Section 10. Medical facilities.

(1) In every plantation there shall be provided and maintained so as to be readily available such medical facilities for the workers and their families as may be prescribed by the State Government.

(2) If in any plantation medical facilities are not provided and maintained as required by sub-section (1) the chief inspector may cause to be provided therein such medical facilities and recover the cost thereof from the defaulting employer.

(3) For the purposes of such recovery the chief inspector may certify the costs to be recovered to the Collector, who may recover the amount as an arrear of land-revenue.

Section 11. Canteens.

(1) The State Government may make rules requiring that in every plantation wherein one hundred and fifty workers are ordinarily employed, one or more canteens shall be provided and maintained by the employer for the use of the workers.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for – (a) at date by which the canteen shall be provided :

(b) the number of canteens that shall be provided and the standards in respect of construction, accommodation, furniture and other equipments of the canteens;

(c) the foodstuffs which may be served therein and the charges which may be made therefor;

(d) the constitution of a managing committee for the canteen and the representation of the workers in the management of the canteen;

(e) the delegation to the chief inspector, subject to such conditions as may be prescribed, of the power to make rules under Cl. (c).

Section 12. Creches.

(1) In every plantation wherein fifty or more women workers (including women workers employed by any contractor) are employed or employed on any day of the preceding twelve months, or where the number of children of women workers (including women workers employed by any contractor) is twenty or more, there shall be provided and maintained by the employer suitable rooms for the use of children of such women workers.

Explanation : For the purposes of this sub-section (1-A) “children” means persons who are below the age of six years. (1-A) Notwithstanding anything contained in sub-section (1), if in respect of any plantation wherein less than fifty women workers (including women workers employed by any contractor) are employed or were employed on any day of the preceding twelve months, or where the number of children of such women workers is less than twenty, the State Government, having regard to the number of children of such women workers deems it necessary that suitable rooms for the use of such children should be provided and maintained by the employer, it may by order, direct the employer to provide and maintain such rooms and thereupon the employer shall be bound to comply with such direction.

(2) The rooms referred to in sub-section (1) or sub-section (1-A) shall : (a) provide adequate accommodation;

(b) be adequately lighted and ventilated;

(c) be maintained in a clean and sanitary conditions; and

(d) be under the charge of a woman trained in the care of children and infants.

(3) The State Government may make rules prescribing the location and the standards of the rooms referred to in sub-section (1) or sub-section (1-

A) in respect of their construction and the equipment and amenities to be provided therein.

Section 13. Recreational facilities.

The State Government may make rules requiring every employer to make provision in his plantation for such recreational facilities for the workers and children employed therein as may be prescribed.

Section 14. Educational facilities.

Where the children between the ages of six and twelve of workers employed in any plantation exceed twenty-five in number the State Government may make rules requiring every employer to provide educational facilities, for the children in suck manner and of such standard as may be prescribed.

Section 15. Housing facilities.

It shall be the duty of every employer to provide and maintain necessary housing accommodation, -

(a) for every worker (including his family) residing in the plantation;

(b) for every worker (including his family) residing outside the plantation, who has put in six months continuous service in such plantation and who has expressed a desire in writing to reside in the plantation :

Provided that the requirement of continuous service of six months under this clause shall not apply to a worker who is a member of the family of a deceased worker, who, immediately before his death, was residing in the plantation.

Section 16. Power to make rules relating to housing.

The State Government may make rules for the purpose of giving effect to the provisions of Sec. 15 and, in particular providing for – (a) the standard and specification of the accommodation to be provided;

(b) the selection and preparation of sites for the construction of houses and the size of such plot;

(c) the constitution of advisory boards consisting of representatives of the State Government, the employer and the workers for consultation in regard to matters connected with housing and the exercise by them of such powers, functions and duties in relation thereto as may be specified;

(d) the fixing of rent, if any, for the housing accommodation provided for workers;

(e) the allotment to workers and their families of housing accommodation and of suitable strips of vacant land adjoining such accommodation for the purpose of maintaining kitchen gardens, and for the eviction of workers and their families from such accommodation;

(f) access to the public to those parts of the plantation wherein the workers are housed.

Section 16A. Liability or employer in respect or accidents resulting from collapse of houses provided by him.

(1) If death or injury is caused to any worker or a member of his family as a result of the collapse of a house provided under Sec. 15, and the collapse is not solely and directly attributable to a fault on the part of any occupant of the house or to a natural calamity, the employer shall be liable to pay compensation.

(2) The provisions of Sec. 4 of, and Sch. IV to the Workmen’s Compensation Act, 1923 (8 of 1923), as in force for the time being, regarding the amount of compensation payable to a workman under that Act shall, so far as may be, apply for the determination of the amount of compensation payable under sub-section (1).

Section 16B. Appointment or commissioners.

The State Government may, by notification in the official Gazette, appoint as many persons, possessing the prescribed qualifications, as it thinks fit, to be commissioners to determine the amount of compensation payable under Sec. 16-A and may define the limits within which each such Commissioner shall exercise the powers and discharge the functions conferred or imposed on him by or under this Act.

Section 16C. Application for compensation.

An application for payment or compensation under Sec. 16-A may be made to the Commissioner, -

(a) by the person who has sustained the injury; or

(b) by any agent duly authorized by the person who has sustained the injury; or

(c) where the person who has sustained the injury is a minor, by his guardian; or

(d) where death has resulted out of the collapse of the house, by any dependent of the deceased or by any agent duly authorized by such dependent, or, if such dependant is a minor, by his guardian.

(2) Every application under sub-section (1) shall be in such form and shall contain such particulars as may be prescribed.

(3) No application for compensation under this section shall be entertained unless it is made within six months of the collapse of the house :

Provided that the Commissioner may, if he is satisfied that the applicant was prevented by sufficient cause from making the application within the aforesaid period of six months entertain such application within a further period of six months.

Explanation : In this section, the expression “dependant” has the meaning assigned to it in Cl. (d) of Sec. 2 of the Workmen’s Compensation Act, 1923 (8 of 1923).

Section 16D. Procedure and powers.

(1) On receipt of an application under Sec. 16-C, the Commissioner may make an inquiry into the matter covered by the application.

(2) In determining the amount of compensation payable under Sec. 16-A, the Commissioner may, subject to any rules that may be made in this behalf, follow such summary procedure as he thinks fit.

(3) The Commissioner shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely :

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any court or office;

(e) issuing commissions for the examination of witnesses or documents;

(f) any other matter which may be prescribed.

(4) Subject to any rules that may be made in this behalf, the Commissioner may, for the purpose of determining any claim or compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist him in holding the inquiry.

Section 16E. Liability to pay compensation, etc. To be decided by commissioner.

(1) Any question as to the liability of an employer to pay compensation under Sec. 16-A, or as to the amount thereof, or as to the person to whom such compensation is payable, shall be decided by the Commissioner.

(2) Any person aggrieved by a decision of the Commissioner refusing to grant compensation, or as to the amount of compensation granted to him, or to the apportionment thereof, may prefer an appeal to the High Court having jurisdiction over the place where the collapse of the house has occurred, within ninety days of the communication of the order of the Commissioner to such person : Provided that the High Court may entertain any such appeal after the expiry of the period aforesaid if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within such period; Provided further that nothing in this sub-section shall be deemed to authorize the High Court to grant compensation in excess of the amount of compensation payable under Sec. 16-A.

(3) Subject to the decision of the High Court in cases in which an appeal is preferred under sub-section (2), the decision of the Commissioner under sub-section (1) shall be final and shall not be called in question in any Court.

Section 16F. Saving as to certain rights.

The right of any person to claim compensation under Sec. 16-A shall be without prejudice to the right of such person to recover compensation payable under any other law for the time being in force, but no person shall be entitled to claim compensation more than once in respect of the same collapse of the house.

Section 16G. Power to make rules.

The State Government may, by notification in the official Gazette, make rules for giving effect to the provisions of Secs. 16-A to 16-F (both inclusive).

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for -

(i) the qualifications and conditions of service of Commissioners;

(ii) the manner in which claims for compensation may be inquired into and determined by the Commissioner;

(iii) generally for the effective exercise of any powers conferred on the Commissioner.

Section 17. Other facilities.

The State Government may make Rules requiring that in every plantation the employer shall provide the workers with such number and type of umbrellas, blankets, rain coats or other like amenities for the protection of workers from rain or cold as may be prescribed.

Section 18. Welfare officers.

(1) In every plantation wherein three hundred or more workers are ordinarily employed the employer shall employ such number of welfare officers as may be prescribed.

(2) The State Government may prescribe the duties, qualifications and conditions of service of officers employed under sub-section (1).

State Amendments

Section 18-A. Chief inspector to provide facilities on default by employer.

If in any plantation, facilities are not provided or maintained by the employer as required by Sec. 8. Sec. 9 or Sec. 12 or Sec. 15 or the rules made under Sec. 11 or Sec. 14 or Sec, 17, the Chief Inspector may cause to be provided or maintained therein such facilities and recover the cost thereof from the defaulting employer :

Provided that before providing or maintaining such facilities the employer shall be given an opportunity of being heard.

(2) For the purpose of recovery of the cost under sub-section (1) the Chief Inspector may certify the amount to be recovered to the Collector, who may thereupon recover such amount as an arrear of land revenue. – Vide Kerala Act 25 of 1969, Secs. 2 and 3 (w.e.f. 1st December, 1969).]

Section 19. Weekly hours.

(1) Save as otherwise expressly provided in this Act, no adult worker shall be required or allowed to work on any plantation in excess of forty-eight hours a week and no adolescent of child for more than twenty seven hours a week.

(2) Where an adult worker works in any plantation on any day in excess of the number of hours constituting a normal working day or for more than forty eight hours in any week, he shall, in respect of such overtime work, be entitled to twice the rates of ordinary wages :

Provided that no such worker shall be allowed to work for more than nine hours on any day and more than fifty-four hours in any week.

(3) For any work done on any closed holiday in the plantation or on any day of rest, a worker shall be entitled to twice the rates of ordinary wages as in the case of overtime work.

Section 20. Weekly holidays.

(1) The State Government may, by rules made in this behalf – (a) provide for a day of rest in every period of seven days which shall be allowed to all workers;

(b) provide for the conditions subject to which, and the circumstances in which, an adult worker may be required or allowed to work overtime.

(2) Notwithstanding anything contained in Cl. (a) of sub-section (1) where a worker is willing to work on any day of rest which is not a closed holiday in the plantation, nothing contained in this section shall prevent him from doing so :

Provided that in so doing a worker does not work for more than ten days consecutively without a holiday for a whole day intervening.

Explanation I : Where on any day a worker has been prevented from working in any plantation by reason of tempest, fire, rain or other nature causes, that day, may, if, he so desires be treated as his day of rest for the relevant period of seven days within the meaning of sub-section (1).

Explanation II : Nothing contained in this section shall apply to any worker whose total period of employment including any day spent on leave is less than six days.

Section 21. Daily intervals for rest.

The period of work on each day shall be so fixed that no period shall exceed five hours and that no worker shall work for more than five hours before he has had an interval for rest for at least half an hour.

Section 22. Spread-over.

The period of work of an adult worker in a plantation shall be so arranged that inclusive of his interval for rest under Sec.21 it shall not spread over more than twelve hours including the time spent in waiting for work on any day.

Section 23. Notice of period of work.

(1) There shall be displayed and correctly maintained in every plantation a notice of periods of work in such form and manner as may be prescribed showing clearly for every day the periods during which the workers may be required to work.

(2) Subject to the other provisions contained in this Act, no worker shall be required or allowed to work in any plantation otherwise than in accordance with the notice of periods of work displayed in the plantation.

(3) An employer may refuse to employ a worker for any day if on that day he turns up for work more than half an hour after the time fixed for the commencement of the day’s work.

24. OMITTED BY ACT 61 OF SEC. 24(b), (W.E.F., 23RD DECEMBER, 1986).

Section 24. Omitted by act 61 of sec. 24(b), (w.e.f., 23rd december, 1986).

24. OMITTED BY ACT 61 OF SEC. 24(b), (W.E.F., 23RD DECEMBER, 1986).

Section 25. Night work for women and children.

Except with the permission of the State Government, no woman or child worker shall be employed in any plantation otherwise than between the hours of 6 A.M. and 7 P.M.

Provided that nothing in this section shall be deemed to apply to midwives and nurses employed as such in any plantation.

Section 26. Nonadult workers to carry to tokens.

No child and no adolescent shall be required or allowed to work in any plantation unless – (a) a certificate of fitness granted with reference to him under Sec. 27 is in the custody of the employer; and

(b) such child of adolescent carries with him while he is at work a token giving a reference to such certificate.

Section 27. Certificate of fitness.

(1) A certifying surgeon shall, on the application of any young person or his parent or guardian accompanied by a document signed by the employer or any other person on his behalf that such person will be employed in the plantation if certified to be fit for work, or on the application of the employer or any other person on his behalf with reference to any young person intending to work, examine such person and ascertain his fitness for work either as a child or as an adolescent.

(2) A certificate of fitness granted under this section shall be valid for a period of twelve months from the date thereof, but may be renewed.

(3) Any fee payable for a certificate under this section shall be paid by the employer and shall not be recoverable from the young person, his parents or guardian.

Section 28. Power to require medical examination.

An inspector may, if he thinks necessary so to do, cause any young person employed in a plantation to be examined by a certifying surgeon.

Section 29. Application of chapter.

(1) The provisions of this chapter shall not operate to the prejudice of any rights to which a worker may be entitled under any other law or under other terms of any award, agreement, or contract of service :

Provided that where such award, agreement or contract of service provides for a longer leave with wages than provided in this chapter the worker shall be entitled only to such longer leave.

Explanation : For the purpose of this chapter leave shall not, except as provided in Sec. 30, include weekly holidays or holidays for festivals or other similar occasions.

Section 30. Annual leave with wages.

(1) Every worker shall be allowed leave with wages for a number of days calculated at the rate of -

(a) if an adult, one day for every twenty days of work performed by him, and

(b) if a young person, one day for every fifteen days of work performed by him :

Explanation: For the purpose of calculating leave under this sub-section -

(a) any day on which no work or less than half a day’s work is performed shall not be counted, and

(b) any day on which half or more than half a day’s work is performed shall be counted as one day.

Explanation II : The leave admissible under this sub-section shall be exclusive of all holidays, whether occurring during, or at either end of, the period of leave.

(2) If a worker does not in any one period of twelve months take the whole of the leave allowed to him under sub-section (1) any leave not taken by him shall be added to the leave to be allowed to him under that sub-section in the succeeding period of twelve months.

(3) A worker shall cease to earn any leave under this section when the earned leave due to him amounts to thirty days.

(4) If the employment of a worker who is entitled to leave under this section is terminated by the employer before he has taken the entire leave to which he is entitled, the employer shall pay him the amount payable under Sec. 3 in respect of the leave not taken, and such payment shall be made before the expiry of the second working day after such termination.

Section 31. Wages during leave period.

(1) For the leave allowed to a worker under Sec. 30, he shall be paid, – (a) if employed wholly on a time-rate basis, at a rate equal to the daily wages payable to him immediately before the commencement of such leave under any law or under the terms of any award, agreement or contract of service, and (b) in other cases, including cases where he is, during the preceding twelve calendar months, paid partly on a time-rate basis and partly on a piece-rate basis, at the rate of the average daily wage calculated over the preceding twelve calendar months. Explanation : For the purposes of Cl.(b) of sub-section (1), the average daily wage shall be computed on the basis of his total full time earnings during the preceding twelve calendar months, exclusive of any overtime earnings of bonus, if any, but inclusive of dearness allowance.

(1-A) In addition to the wages for the leave period at the rates specified in sub-section (1), a worker shall also be paid the cash value of food and other concessions, if any, allowed to him by the employer in addition to his daily wages unless these concessions are continued during the leave period.

(2) A worker who has been allowed leave for lpa-35 any period not less than four days in the case of an adult and five days in the case of a young person under Sec. 30 shall, before his leave begins, be paid his wages for the period of the leave allowed.

Section 32. Sickness and maternity benefits.

(1) Subject to any rules that may be made in this behalf, every worker shall be entitled to obtain from his employer – in the case of sickness certified by a qualified medical practitioner, sickness allowance, at such rate, for such period and at such intervals as may be prescribed.

(2) The State Government may make rules regulating the payment of sickness allowance and any such rules may specify the circumstances in which such allowance shall not be payable or shall cease to be payable, and in framing any rules under this section the State Government shall have due regard to the medical facilities that may be provided by the employer in any plantation.

Section 32A. Notice of accident.

Where in any plantation, an accident occurs which causes death or which causes bodily injury to a worker by reason of which the worker injured is prevented from working for a period of forty-eight hours or more immediately following the accident, or which is of such a nature as may be prescribed in this behalf, the employer thereof shall send notice thereof to such authorities, in such form, and within such time, as may be prescribed.

Section 32B. Register of accidents.

The employer shall maintain a register of all accidents which occur in the plantation in such form and in such manner as may be prescribed.

Section 33. Obstruction.

(1) Whoever obstructs an inspector in the discharge of his duties under this Act or refuses or wilfully neglects to afford the inspector any reasonable facility for making any inspection, examination or inquiry authorised by ar under this Act in relation to any plantation, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

(2) Whoever wilfully refuses to produce on the demand of an inspector any register or other document kept in pursuance of this Act, or prevents or attempts to prevent or does anything which he has reason to believe is likely to prevent any person from appearing before or being examined by an inspector acting in pursuance of his duties under this Act, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Section 34. Use of false certificate of fitness.

Whoever knowingly uses or attempts to use as a certificate of fitness granted to himself under Sec. 27 a certificate granted to another person under that section, or having been granted a certificate of fitness to himself, knowingly allows it to be used, or allows an attempt to use it to be made by another person, shall be punishable with imprisonment which may extend to one month, or with fine which may extend to fifty rupees, or with both.

Section 35 Contravention of provisions regarding employment of labour.

Whoever, except as otherwise permitted by or under this Act, contravenes any provision of this Act or of any rules made thereunder prohibiting, restricting or regulating the employment of persons in a plantation, shall be punishable with imprisonment for a term, which may extend to three months, or fine, which may extend to five hundred rupees, or with both.

Section 36. Other offences.

Whoever contravenes any of the provisions of this Act or of any rules made thereunder for which no other penalty is elsewhere provided by or under this Act shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Section 37. Enhanced penalty after previous conviction.

If any person who has been convicted of any offence punishable under this Act is again guilty of an offence involving a contravention of the same provision, he shall be, punishable on a subsequent conviction with imprisonment which may extend to six months, or with fine which may extend to one thousand rupees, or with both :

Provided that for the purposes of this section no cognizance shall be taken of any conviction made more than two years before the commission of the offence which is being punished.

Section 37A. Power of court to make orders.

(1) Where an employer is convicted of an offence punishable under Sec. 36, the Court may, in addition to, awarding any punishment, by order in writing, require him within such period as may be specified in the order (which the Court may if it thinks fit and on an application made in this behalf by the employer, from time to time, extend) to take such measures as may be so specified for remedying the matters in respect of which the offence was committed.

(2) Where an order is made under sub-section (1), the employer shall not be liable under this Act in respect of the continuation of the offence during the period or extended period, as the case may be, specified by the Court, but if, on the expiry of such period or extended period, the order of the Court has not been fully complied with, the employer shall be deemed to have committed a further offence and he shall, on conviction, be punishable with imprisonment for a term which may extend to six months and with fine which may extend to three hundred rupees for every day after such expiry.

Section 38. Exemption of employer from liability in certain cases.

Where an employer charged with an offence under this Act, alleges that another person is the actual offender, he shall be entitled upon complaint made by him in this behalf to have, on giving to the prosecutor in this behalf three cleat days’ notice in writing of his intention so to do, that other person brought before the Court on the day appointed for the hearing of the case and if, after the commission of the offence has been proved, the employer proves to the satisfaction of the Court that -

(a) he has used due diligence to enforce the execution of the relevant provisions of this Act; and

(b) that the other person committed the offence in question without his knowledge, consent or connivance; the said other person shall be convicted of the offence and shall be liable to the like punishment as if he were the employer and the employer shall be acquitted :

Provided that – (a) the employer may be examined on oath and his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges to be the actual offender and by the prosecutor, and (b) if, inspite of due diligence, the person alleged as the actual offender cannot be brought before the Court on the day appointed for the hearing of the case, the Court shall adjourn the hearing thereof from time to time so, however, that the total period of such adjournment does not exceed three months, and if, by the end of the said period, the person alleged as the actual offender cannot still be brought before the Court, the court shall proceed to hear the case against the employer.

Section 39. Cognizance of offences.

No Court shall take cognizance of any offence under this Act except on complaint made by, or with the previous sanction in writing of, the chief inspector and no Court inferior to that of a presidency magistrate or a magistrate of the second class shall try any offence punishable under this Act.

Section 40. Limitation of prosecutions.

No court shall take cognizance of an offence punishable under this Act unless the complaint thereof has been made or is made within three months from the date on which the alleged commission of the offence came to the knowledge of an inspector :

Provided that where the offence consists of disobeying a written order made by an inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.

Section 41. Power to give directions.

The Central Government may give directions to the Government of any State as to the carrying into execution in the State of the provisions contained in this Act.

Section 42. Power to exempt.

The State Government may, by order in writing exempt, subject to such conditions and restrictions as it may thinks fit to impose, any employer or class of employers from all or any of the provisions of this Act :

Provided that no such exemption other than exemption from Sec. 19 shall be granted except with the previous approval of the Central Government.

Section 43. General power to make rules.

(1) The State Government may, subject to the condition of previous publication, make rules to carry out the purposes of this Act : Provided that the date to be specified under Cl. (3) of Sec. 23 of the General Clauses Act, 1978 (10 of 1978), shall not be less than six weeks from the date on which the draft of the proposed rules was published.

(2) In particular, and without prejudice to the generality of the foregoing power, any such rules may provide for -

(a) the qualifications required in respect of the chief inspector and inspector;

(b) the powers which may be exercised by inspectors and the areas in which and the manner in which such powers may be exercised;

(c) the medical supervision which may be exercised by certifying surgeons;

(d) the examination by inspectors or other persons of the supply and distribution of drinking water in plantations;

(e) appeals from any order of the chief inspector or inspector and the form in which, the time within which and the authorities to which, such appeal may be preferred;

(f) the time within which housing recreational, educational or other facilities required by this Act to be provided and maintained may be so provided;

(g) the types of latrines and urinals that should be maintained in plantations;

(h) the medical, recreational and educational facilities that should be provided in plantations;

(i) the form and manner in which notices of periods of work shall be displayed and maintained;

(j) the registers which should be maintained by the employers and the returns, whether occasional or periodical, as in the opinion of the State Government may be required for the purposes of this Act;

(k) the hours of work for a normal working day for the purpose of wages and overtime;

(l) any other matter which is required to be, or may be prescribed.

(3) All rules made under this Act shall, if made by any Government, other than the Central Government, by subject to the previous approval of the Central Government.

Appendix

In relation to the areas or establishments to which the Maternity Benefit Act, 1961 (53 of 1961) applies, Sec. 32 of the Plantations Labour Act, 1951, has been amended by Sec. 29 of the former Act as follows :

“29. Amendment of Act 69 of 1951. – In Sec. 32 of the Plantations Labour Act, 1951, – (a) in sub-section (1), the letter and brackets “(a)” before the words “in the case of sickness” the word “and” after the words “sickness allowance” and Cl. (b) shall be omitted;

(b) in sub-section (2), the word “or maternity” shall be omitted.

Indian Contract Act

November 30, 2014

Preliminary

1. Short title

This Act may be called the Indian Contract Act, 1872.

Extent, Commencement. -It extends to the whole of India ¹[except the State of Jammu and Kashmir]; and it shall come into force on the first day of September 1872.

Saving.- ²[* * *] Nothing herein contained shall affect the provisions of any Statute, Act or Regulation not hereby expressly repealed, nor any usage or custom of trade, nor any incident of any contract, not inconsistent with the provisions of this Act.

1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “except Part B States”.

2. The words “The enactments mentioned in the Schedule hereto are repealed to the extent specified in the third column thereof, but” rep. by Act 10 of 1914, sec. 3 and Sch. 11.

2. Interpretation

In this Act the following words and expressions are used in the following senses, unless contrary intention appears from the context:

(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal;

(b) When a person to whom the proposal is made, signifies his assent thereto, the proposal is said to be accepted. A proposal, when a accepted, becomes a promise;

(c) The person making the proposal is called the “promisor”, and the person accepting the proposal is called “promisee”,

(d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise;

(e) Every promise and every set of promises, forming the consideration for each other, is an agreement;

(f) Promises which form the consideration or part of the consideration for each other, are called reciprocal promises;

(g) An agreement not enforceable by law is said to be void;

(h) An agreement enforceable by law is a contract;

(i) An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract;

(j) A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable.

At the desire of the promisor

Suit would lie for the recovery of a promised subscription where on the faith of the promisee, the promiser entered into a contract with a contractor; Kedarnath Bhattacharji v. Gorie Mohomed, (1886) ILR 14 Cal 64.

Consideration and motive

A promise founded on motive of generosity, prudence and natural duty is a promise without consideration; Abdul Aziz v. Masum Ali, (1914) ALJR 36 All 268.

Contract

A contract comes into existence only when all the terms and conditions have been finalised. If the facts of a particular case show that execution of a written contract was a condition precedent for coming into force of the contract between the parties, then it cannot be said that any concluded contract in absence of a written contract being executed has come into force between the parties; J.K. Industries Ltd. v. Mohan Investments and Properties Pvt. Ltd., AIR 1992 Del 305.

Proposal: Offer and statement of intention

The proposal when accepted gives rise to an agreement. It is at this stage that the agreement is reduced into writing and a formal document is executed on which parties affix their signature or thumb impression so as to be bound by the terms of the agreement set out in that document. Such an agreement has to be lawful; Tarsem Singh v. Sukhmider Singh, AIR 1998 SC 1400.

Valid consideration

The consideration should be something which not only the parties regard but the law can also regard as having some value. It must be real and not illusory, whether adequate or not; Chidambara v. P.S. Renga, AIR 1965 SC 193: (1966) 1 SCR 168.

When Strangers may not sue – the general rule

A person not a party to a contract can sue on it; Venkata Chinnaya Rau Garu v. Venkataramaya Garu, 1881 ILR 4 Mad 137.

Creating legal relations

If there being no agreement, there was no breach of contract committed by the respondent and also that since there was no breach of contract, the petitioner cannot retain or forfeit the earnest money deposited by the respondent by way of penalty; State of Tripura v. Bhowmik & Co., AIR 2004 Gau 21.

Chapter I – Of the Communication, Acceptance and Revocation of Proposals

3. Communication, acceptance and revocation of proposals.

The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptance, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking, by which he intends to communicated such proposal, acceptance or revocation, or which has the effect of communicating it.

Communication of acceptance

An offer is accepted when the acceptance is communicated. The communication must be made to the offeror and a communication of acceptance made to a third person creates no contract; Felthouse v. Bindely, (1862) 6 LT 157.

Exposure of goods: offer or not

The Exposure of goods by a shopkeeper does not amount to an offer to sell. On picking the goods, it is an offer by the customer to buy, and sale is not effected until the buyer’s offer price is accepted by the shopkeeper; Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd., (1952) 2 QB 795.

Offer to the whole world

Though an offer may be made to the whole world, a contract can arise only by acceptance of the offer. Hence knowledge of the terms of the offer is essential for acceptance. Thus where a person sent his servant in search of his missing boy and subsequently offered a reward to any one who would find the boy, the servant, on finding the boy, could not claim the reward, as his search for the boy could not be regarded as a consideration for the promise of reward; Lalman Shukul v. Gauri Dat, (1913) 11 AQLJ 489.

Unaccepted offer creates no right or obligation

A mere making of an offer does not form part of the cause of action for damages for breach of contract which has resulted from the acceptance of the offer. Ordinarily it is the acceptance of the offer and intimation of that acceptance which results in a contract; Bhagwan Das Goverdhan Das Kedia v. Girdhari Lal & Co., AIR 1966 SC 543.

4. Communication when complete

The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.

The communication of an acceptance is complete,—

as against the proposer, when it is put in a course of transmission to him so as to be out of the power of the acceptor;

as against the acceptor, when it comes to the knowledge of the proposer.

The communication of a revocation is complete,—

as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it; as against the person to whom it is made, when it comes to his knowledge.

Illustrations

(a) A proposes, by letter, to sell a house to B at a certain price.

The communication of the proposal is complete when B receives the letter.

(b) B accepts A’s proposal by a letter sent by post.

The communication of the acceptance is complete,

as against A when the letter is posted;

as against B, when the letter is received by A.

(c) A revokes his proposal by telegram.

The revocation is complete as against A when the telegram is despatched.

It is complete as against B when B receives it.

B revokes his acceptance by telegram. B’s revocation is complete as against B when the telegram is despatched, and as against A when it reaches him.

Communication of proposal and acceptance

The advertisement of the Corporation for tenders was an ‘invitation to make an offer’. The tenders when submitted to the Corporation were ‘offers’ or ‘proposals’ in terms of section 4 of the Act and the ‘communication’ of ‘proposal’ or ‘offers’ was complete when received by the Corporation. In terms of section 4 of the Act, the ‘acceptance’ was not complete as it was never made, and never put into transmission. The revocation within the meaning of section 4 was complete as it was received and within the knowledge of the Corporation. The offers on tenders were revoked before it was accepted. The contract never saw the light of the day; Shyam Biri Works Pvt. Ltd. v. U.P. Forest Corporation, AIR 1990 All 205.

Where an offer is made by a method of instantaneous communication like telex, the contract is only complete when the acceptance is received by the offerer, and the contract is made at the place where the acceptance is received; Entores Ltd. v. Miles Far East Corporation, (1955) 2 All ER 493: (1955) 2 QB 327: (1955) 3 WLR 48.

Contract by correspondence: Antecedents and subsequent negotiations

The communication of acceptance of the highest bid is necessary for completed contract; Haridwar Singh v. Begum Sumbrui, AIR 1972 SC 1942.

Dispensing with notice of acceptance

A notification of acceptance is required for the benefit of the person who makes the offer, the person who makes the offer may dispense with notice to himself if he thinks it desirable to do so: there can be no doubt that where a person in an offer made by him to another person expressly or impliedly, intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated mode of acceptance; and if the person making the offer expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification; Carlill v. Carbolic Smoke Ball Co., (1893) 1 QBD 256.

5. Revocation of Proposals and acceptance

A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards.

An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but no afterwards.

Illustrations

A proposes, by a letter sent by post, to sell his house to B.

B accepts the proposal by a letter sent by post.

A may revoke his proposal at any time before or at the moment when B posts his letter of acceptance, but not afterwards.

B may revoke his acceptance at any time before or at the moment when the letter communicating it reaches A, but not afterwards.

Revocation

Where an offer gives the offerer an option to accept within a fixed period, it may be withdrawn even before the expiry of that period unless there is some consideration for keeping it open; Airfred Schonlank v. Muthurayna Chetty, (1892) 2 Mad LJ 57.

6. Revocation how made

A proposal is revoked -

(1) by the communication of notice of revocation by the proposer to the other party;

(2) by the lapse of the time prescribed in such proposal for its acceptance, or, if no time is so prescribed, by the lapse of a reasonable time, without communication of the acceptance;

(3) by the failure of the acceptor to fulfil a condition precedent to acceptance; or

(4) by the death or insanity of the proposer, if the fact of the death or insanity comes to the knowledge of theacceptor before acceptance.

7. Acceptance must be absolute

In order to convert a proposal into a promise the acceptance must -

(1) be absolute and unqualified.

(2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted; and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but; if he fails to do so, he accepts the acceptance.

Acceptance must be unqualified and without condition

The cardinal principle in the light of section 7 of the Act is that the offer and acceptance of an offer must be absolute without giving any room of doubt. It is well settled that the offer and acceptance must be based or founded on three components—Certainty, commitment and communication. If any one of three components is lacking either in the offer or in the acceptance there cannot be a valid contract; Kilburn Engineering Ltd. v. Oil and Natural Gas Corporation Ltd., AIR 2000 Bom 405.

When the acceptor puts in a new condition while accepting, the contract already signed by the proposer is not complete until the proposer accepted the condition; Haridwar Singh v. Begum Sumbrui, AIR 1972 SC 1942.

An acceptance with a variation is no acceptance; it is simply a counter proposal which must be accepted by the original promisor before a contract is made; Haji Mohd. Haji Jiva v. E. Spinner, (1900) 24 Bom 510.

No second acceptance

The rule of law is that a mere offer to sell property, which can be withdrawn at any time, and which is made dependant on the acceptance of the person to whom it is made, is a mere nudum pactum. The person to whom, the offer has been made, cannot, by acceptance make a binding contract after he knows that the person who has made the offer has sold the property to someone else; Dickinson v. Dodds, 1876 Ch. D. 463.

8. Acceptance by performing conditions, or receiving consideration

Performance of the conditions of proposal, for the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal.

Performance by act: Interference of acceptance

The defendant company advertised that they would pay pound 1,000 to any person who used their carbolic smoke ball for a certain time any yet contracted influenza. The plaintiff purchased the medicine, used it for the stated time but contracted the disease. It was held that the contract was accepted by being acted upon, that the defendant had not stipulated for any communication of acceptance and therefore the plaintiff was entitled to recover the amount; Carlill v. Carbolic Smoke Ball Co., (1893) 1 QBD 256.

9. Promise, express and implied

In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.

Implied terms

A contract can be implied and it is very clear from section 9 of the Contract Act, but it is a fundamental principle of law that the court should not make a contract for the parties. A contract implied in fact requires meeting of minds. The court should refuse to read an implied term into a contract which is silent on the point or did not clearly indicate the nature of the term. However, when the stipulations are clear and in contemplation of the parties or which necessarily arise out of the contract between the parties, they will be implied; State of Maharashtra v. Saifuddin Mujjaffarali Saifi, AIR 1994 Bom 48.

Chapter II – Of contracts, violable, contracts and void agreements

10. What agreements are contracts

All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.

Nothing herein contained shall affect any law in force in ¹India, and not hereby expressly repealed, by which any contract is required to be made in writing ²or in the presence of witnesses, or any law relating to the registration of documents.

Breach of statutory provision

Railway invited tenders for the supply of jaggery to the railway grain shops. The respondent submitted his tender for the supply of 14,000 imperial maunds of cane jaggery during the month of February and March and the tender was accepted by the letter. So far, the offer of a supply of a definite quantity of jaggery during a specified period at a certain rate and the acceptance of the offer would constitute an agreement, but would fall short of amounting to a legal contract inasmuch as the date of delivery of the jaggery was not specified. Once the order is placed for such supply on such dates, that order amounts to a binding contract making it incumbent on the respondent to supply jaggery in accordance with the terms of the order and also making it incumbent on the Dy. General Manager to accept the jaggery delivered in pursuance of that order; Union of India v. Maddala Thathaiah, (1964) 3 SCR 774.

What agreements are Contract

If entering into a contract containing prescribed terms and conditions is a must under the statute then that contract becomes a statutory contract. If contract incorporates certain terms and conditions in it, which are statutory then the said contract to that extent is statutory; Thermal Power Ltd. v. State of Madhya Pradesh, AIR 2000 SC 1005.

In order to constitute a contract, both the parties must consent to the agreement; Steel Authority of India Ltd. v. Salem Stainless Steel Suppliers, AIR 1994 SC 1415.

A person who by reason of infancy is incompetent to contract cannot make a contract within the meaning of the Act. The question whether a contract is void or voidable presupposes the existence of a contract within the meaning of the Act, and cannot arise in the case of an infant; Mohoribibi v. Dharmodas Ghose, (1903) 30 IA 114.

What agreements are not Contract

Agreement subject to ratification by others who are not parties to it is not a conclusive contract; M.V. Shankar Bhat v. Claude Pinto (Deceased) by LRs, (2003) 4 SCC 86.

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1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “Part A States and Part C States”. Earlier the words “Part A States and Part C States” were substituted by the A.O. 1950, for the words “the Provinces”.

2. See e.g., sec. 25, the Copyright Act, 1957 (14 of 1957), section 19, the Carriers Act, 1865 (3 of 1865) sections 6 and 7; the Companies Act, 1956 (1 of 1956) sections 12, 30, 46 and 109.

11. Who are competent to contract

Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is sound mind and is not disqualified from contracting by any law to which he is subject.

Minor’s contract of service

A contract of marriage, entered into by a father for the benefit of his minor child is not void for want of consideration, unlike a contract of service by a minor which is a contract of service entered into by a father on behalf of the minor which is not enforceable as it is void for want of consideration; Raj Rani v. Prem Adib, AIR 1949 Bom 215.

Minor’s contract void

Where a mortgage was made by a minor and the money lender who had advanced money to the minor on the security of the mortgage sued the minor on the strength of the contract. It is held, having regard to sections 2, 10 and 11 of the Contract Act, that the Act makes it essential that the contracting parties should be competent to contract and that a minor’s contract is void; Mohoribibee v. Dharmodas Ghose, (1903) ILR 30 Cal 539 (PC).

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1. See the Indian Majority Act, 1875 (9 of 1875).

12. What is a sound mind for the purposes of contracting

A person is said to be of sound mind for the propose of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgement as to its effect upon his interest.A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.

Illustrations

(a)   A patient in a lunatic asylum, who is, at intervals, of sound mind, may contract during those intervals.

(b)   A sane man, who is delirious from fever, or who is so drunk that he cannot understand the terms of a contract, or form a rational judgment as to its effect on his interests, cannot contract whilst such delirium or drunkenness lasts.

13. “Consent” defined -

Two or more person are said to consent when they agree upon the same thing in the same sense.

14. “Free consent” defined -

Consent is said to be free when it is not caused by -

(1) coercion, as defined in section 15, or

(2) undue influence, as defined in section 16, or

(3) fraud, as defined in section 17, or

(4) misrepresentation, as defined in section 18, or

(5) mistake, subject to the provisions of section 20,21, and 22.

Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation, or mistake.

15. “Coercion” defined

“Coercion” is the committing, or threating to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.

Illustrations

A, on board an English ship on the high seas, causes B to enter into an agreement by an act amounting to criminal intimidation under the Indian Penal Code (45 of 1860).

A afterwards sues B for breach of contract at Calcutta.

A has employed coercion, although his act is not an offence by the law of England, and although section 506 of the Indian Penal Code (45 of 1860) was not in force at the time when or place where the act was done.

An act forbidden by the Penal Code

The threat of suicide amounts to coercion within section 15; Chikam Amiraju v. Chickam Seshamma, (1912) 16 IC 344.

16. “Undue influence” defined

¹[16.‘Undue influence’ defined.—(1) A contract is said to be induced by “under influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generally of the foregoing principle, a person is deemed to be in a position to dominate the will of another -

(a) where he hold a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or

(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.

Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872)

Illustrations

(a) A having advanced money to his son, B, during his minority, upon B’s coming of age obtains, by misuse of parental influence, a bond from B for a greater amount than the sum due in respect of the advance. A employs undue influence.

(b) A, a man enfeebled by disease or age, is induced, by B’s influence over him as his medical attendant, to agree to pay B an unreasonable sum for his professional services, B employes undue influence.

(c) A, being in debt to B, the money-lender of his village, contracts a fresh loan on terms which appear to be unconscionable. It lies on B to prove that the contract was not induced by undue influence.

(d) A applies to a banker for a loan at a time when there is stringency in the money market. The banker declines to make the loan except at an unusually high rate of interest. A accepts the loan on these terms. This is a transaction in the ordinary course of business, and the contract is not induced by undue influence.]

Unconsiderable transaction

The circumstance that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction; Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib, AIR 1967 SC 878.

Undue influence

Merely because the parties were nearly related to each other no presumption of undue influence can arise; Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib, AIR 1967 SC 878.

Undue influence and fraud

(i) Undue influence is said to be a subtle species of fraud whereby mastery is obtained over the mind of the victim, by insidious approaches and seductive artifices; Mahboob Khan v. Hakim Abdul Rahim, AIR 1964 Raj 250.

(ii) Where pardanashin and illiterate woman acting under full confidence of the defendant who projected a false impression of the contents of a documents, put this thumb impression on such documents, their comment is a vitiated one; Kharbuja Kuer v. Jangbahadur Rai, AIR 1963 SC 1203.

What to prove—Burden of proof

If the transaction appears to be unconscionable then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other; Shrimati v. Sudhakar R. Bhatkar, Air 1998 Bom 122.

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1. Subs. by Act 6 of 1899, sec. 2, for section 16.

17. “fraud defined “

“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agents,¹ with intent to deceive another party thereto his agent, or to induce him to enter into the contract;

(1) the suggestion as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent.

Explanation.—Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak², or unless his silence, is, in itself, equivalent to speech.

Illustrations

(a) A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horse’s unsoundness. This is not fraud in A.

(b) B is A’s daughter and has just come of age. Here the relation between the parties would make it A’s duty to tell B if the horse is unsound.

(c) B says to A—‘‘If you do not deny it, I shall assume that the horse is sound”. A says nothing. Here, A’s silence is equivalent to speech.

(d) A and B, being traders, enter upon a contract. A has private information of a change in prices which would affect B’s willingness to proceed with the contract. A is not bound to inform B.

Cases where there is duty to speak

It is the duty of the assured to put the insurer in possession of all material facts affecting the risk covered; Mithoo Lal Nayak v. L.I.C. of India, AIR 1962 SC 814.

Pleading and proof of fraud

The transaction designed to defeat the plaintiff creditors was fraudulent. Fraud was fully carried into effect in letter and spirit. In as much as the plaintiff himself was the preparator of fraud, he should not be granted any discretionary relief. Once it is found that the parties are in pari delicto the court will not assist the party who enters into illegal transaction and makes that transaction the basis of his claim; Sultan Ahmad v. Rashid Ahmad, AIR 1990 All 47.

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1. Cf. section 238, infra.

2. See section 143, infra.

18. “Misrepresentation” defined

“Misrepresentation” means and includes -

(1) the positive assertion, in a manner not warranted by the information of the person making it, of that whichis not true, though he believes it to be true;

(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or anyone claiming under him; by misleading another to his prejudice, or to the prejudice of any one claiming under him;

(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is subject of the agreement.

A statement is said to be warranted by the information of the person making it when he receives the information from a trustworthy source. It should not be a mere hearsay; Mohanlal v. Sri Gungaji Cotton Mills Co., (1900) 4 CWN 369.

19. Voidability of agreements without free consent

When consent to an agreement is caused by coercion, ¹fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. A party to contract, whose consent was caused by fraud or mispresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put on the position in which he would have been if the representations made had been true.

Exception : If such consent was caused by misrepreentation or by silence, fraudulent within the meaning of section 17, the contract, neverthless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.

Explanation : A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable.

Illustrations

(a) A, intending to deceive B, falsely represents that five hundred maunds of indigo are made annually at A’s factory, and thereby induces B to buy the factory. The contract is voidable at the option of B.

(b) A, by a misrepresentation, leads B erroneously to believe that five hundred maunds of indigo are made annually at A’s factory. B examines the accounts of the factory, which show that only four hundred maunds of indigo have been made. After this B buys the factory. The contract is not voidable on account of A’s misrepresentation.

(c) A fraudulently informs B that A’s estate is free from incumbrance. B thereupon buys the estate. The estate is subject to a mortgage. B may either avoid the contract, or may insist on its being carried out and mortgage-debt redeemed.

(d) B, having discovered a vein of ore on the estate of A, adopts means to conceal, and does conceal the existence of the ore from A. Through A’s ignorance B is enabled to buy the estate at an under-value. The contract is voidable at the option of A.

(e) A is entitled to succeed to an estate at the death of B; B dies: C, having received intelligence of B’s death, prevents the intelligence reaching A, and thus induces A to sell him his interest in the estate. The sale is voidable at the option of A.

Scope

The defendant represented himself to be a partner of the firm by his conduct and through documents and got a loan of Rs. 60,000 from the plaintiff bank. The plaintiff bank gave loan to all the defendants believing them to be partners of the defendant. It was held that the defendant had represented himself to be a partner and therefore liable with other defendants; Oriental Bank of Commerce v. S.R. Kishore & Co., AIR 1992 Del 174.

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1. The words “undue influence” rep. by Act 6 of 1899, sec. 3.

19-A. Power to set aside contract induced by undue influence -

When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused.

Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the Court may seem just.

Illustrations

(a) A’s son has forged B’s name to a promissory note. B under threat of prosecuting A’s son, obtains a bond from A for the amount of the forged note. If B sues on this bond, the Court may set the bond aside.

(b) A, a money-lender, advances Rs. 100 to B, an agriculturist, and, by undue influence, induces B to execute a bond for Rs. 200 with interest at 6 per cent. per month. The Court may set the bond aside, ordering B to repay the Rs. 100 with such interest as may seem just.]

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1. Ins. by Act 6 of 1899, sec. 3.

20. Agreement void where both parties are under mistake as to matter of fact

Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement the agreement is void.

Explanation.—An erroneous opinion as to the value of the thing which forms the subject-matter of the agreement, is not to be deemed a mistake as to a matter of fact.

Illustrations

(a) A agrees to sell to B a specific cargo of goods supposed to be on its way from England to Bombay. It turns out that, before the day of the bargain the ship conveying the cargo had been cast away and the goods lost. Neither party was aware of these facts. The agreement is void.

(b) A agrees to buy from B a certain horse. It turns out that the horse was dead at the time of the bargain, though neither party was aware of the fact. The agreement is void.

(c) A, being entitled to an estate for the life of B, agrees to sell it to C, B was dead at the time of agreement, but both parties were ignorant of the fact. The agreement is void.

Mistake

There can be a mistake of identity only when a person bearing a particular identity exists within the knowledge of the plaintiff and the plaintiff intends to deal with him only; King’s Nortan Metal Co. v. Edridge, Merrett & Co., (1897) 14 TLR 98 (CA).

21. Effect of mistake as to law

A contract is not voidable because it was caused by a mistake as to any law in force in ¹India; but mistake as to a law not in force in India has the same effect as a mistake of fact.

²[***]

Illustration

A and B make a contract grounded on the erroneous belief that a particular debt is barred by the Indian Law of Limitation; the contract is not voidable.

³[***]

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1. The original words “British India” have successively been amended by the A.O. 1948 and the A.O. 1950 to read as above.

2. Paragraph 2 omitted by the A.O. 1950. Earlier paragraph 2 was inserted by the A.O. 1937.

3. The second Illustration rep. by Act 24 of 1917, sec. 3 and Sch. II

22. Contract caused by mistake of one party as to matter of fact

A contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact.

23. What consideration and objects are lawful, and what not

The consideration or object of an agreement is lawful, unless -It is forbidden by law; oris of such nature that, if permitted it would defeat the provisions of any law or is fraudulent; ofinvolves or implies, injury to the person or property of another; orthe Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

Illustrations

(a) A agrees to sell his house to B for 10,000 rupees. Here, B’s promise to pay the sum of 10,000 rupees is the consideration for A’s promise to sell the house and A’s promise to sell the house is the consideration for B’s promise to pay the 10,000 rupees. These are lawful considerations.

(b) A promises to pay B 1,000 rupees at the end of six months, if C, who owes that sum to B, fails to pay it. B promises to grant time to C accordingly. Here, the promise of each party is the consideration for the promise of the other party, and they are lawful considerations.

(c) A promises, for a certain sum paid to him by B, to make good to B the value of his ship if it is wrecked on a certain voyage. Here, A’s promise is the consideration for B’s payment, and B’s payment is the consideration for A’s promise, and these are lawful considerations.

(d) A promises to maintain B’s child, and B promises to pay A 1,000 rupees yearly for the purpose. Here, the promise of each party is the consideration for the promise of the other party. They are lawful considerations.

(e) A, B and C enter into an agreement for the division among them of gains acquired or to be acquired, by them by fraud. The agreement is void, as its object is unlawful.

(f) A promises to obtain for B an employment in the public service and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful.

(g) A, being agent for a landed proprietor, agrees for money, without the knowledge of his principal, to obtain for B a lease of land belonging to his principal. The agreement between A and B is void, as it implies a fraud by concealment, by A, on his principal.

(h) A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful.

(i) A’s estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited from purchasing the estate. B, upon an understanding with A, becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect, a purchase by the defaulter and would so defeat the object of the law.

(j) A, who is B’s mukhtar, promises to exercise his influence, as such, with B in favour of C, and C promises to pay 1,000 rupees to A. The agreement is void, becuase it is immoral.

(k) A agrees to let her daughter to hire to B for concubinage. The agreement is void, because it is immoral, though the letting may not be punishable under the Indian Penal Code (45 of 1860).

Applicability

The notification permitting refund of sales tax was contrary to the statute. The tax paid is not an amount spent by the appellant but realised on sale by it. The constitutional requirements of levy of tax being for the welfare of the society and not for a specific individual the agreement or promise made by the Government was in contravention of public purpose thus violative of public policy and void under section 23 of the Contract Act; Amrit Bansapati Co Ltd. v. State of Punjab, AIR 1992 SC 1076.

Illegal and void agreements

The distinction between illegal and void contracts is very thin but it is there. The law may either forbid an agreement to be made, or it may merely say that if it is made the courts will not enforce it. In the former case, it is illegal in the latter only void; Nutan Kumar v. IInd Additional District Judge, Banda, AIR 1994 All 298.

Object of agreement is valid thereof

The exemption clause containing that the carrier shall be under no liability for any damages to passengers, is valid and it legally excludes all liability for negligence and such clause cannot be held bad under section 23 of Act; Indian Airlines v. Madhuri Chowdhuri, AIR 1965 Cal 252.

Scope

If an agreement is merely collateral to another or constitutes an aid facilitating the carrying out of the object of the other agreement which though void, is not prohibited by law it may be enforced as a collateral agreement. Where a person entering into an illegal contract promises expressly or by implication that the contract is blameless such a promise amount to collateral agreement upon which the other party if in fact innocent of turpitude may sue for damages; Rajat Kumar Rath v. Government of India, AIR 2000 Ori 32.

The appellation ‘void’ in relation to a juristic act, means without legal force, effect or consequence, not binding, invalid, null, worthless, cipher, useless and ineffectual etc.; Nutan Kumar v. IInd Additional District Judge, Banda, AIR 1994 All 298.

An agreement offending a statute or public policy or forbidden by law is not merely void but it is invalid from nativity. It cannot become valid even if the parties thereto agree to it; Nutan Kumar v. IInd Additional District Judge, Banda, AIR 1994 All 298.

While the term ‘object’ unlike the term ‘consideration’ has not been defined in section 2 of the Act, but has been held to mean as ‘purpose’ or ‘design’ of the contract. If the object is opposed to public policy or tends to defeat any provision of law, it becomes unlawful and thereby it is void under section 23 of the Act; Nutan Kumar v. IInd Additional District Judge, Banda, AIR 1994 All 298.

The term ‘law’ in section 23 of the Act must be understood in the sense of the term explained in the Article 13(3) of the Constitution; Nutan Kumar v. IInd Additional District Judge, Banda, AIR 1994 All 298.

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1. See sections 26, 27, 28 and 30, infra.

24. Agreements void, if consideration are objects unlawful in part

If any part of a single consideration for one or more objects, or any one or any part of any one of several consideration of a single object, is unlawful, the agreement is void.

Illustration

A promises to superintend, on behalf of B, a legal manufacturer of indigo, and an illegal traffic in other articles. B promises to pay to A a salary of 10,000 rupees a year. The agreement is void, the object of A’s promise, and the consideration for B’s promise, being in part unlawful.

General Rule

Non-compoundable offences, which are a matter of public concern, cannot be subject matter of private bargains and administration of criminal justice should not be allowed to pass from the hands of judges to private individuals. Where the offence is of public nature, no agreement can be valid that is founded on the consideration of stifling of a prosecution for it. The payment of 470 million US dollars by the Union Carbide Corporation to Union of India was held not to be stifling of prosecution and the payment not unlawful; Union Carbide Corporation v. Union of India, AIR 1992 SC 248.

25. Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law

An agreement made without consideration is void, unless -

(1) it is expressed in writing and registered under the law for the time being in force for the registration of ¹documents, and is made on account of natural love and affection between parties standing in a near relation to each other; or unless.

(2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless.

(3) it is a promise, made in writing and signed by the person to be charged therewith or by his agent generally or specially authorised in that behalf, to pay wholly or in part debt of which the creditor might have enforced payment but for the law for the limitation of suits. In any of these cases, such an agreement is a contract.

Explanation 1 : Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made.

Explanation 2 : An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given.

Illustrations

(a) A promises, for no consideration, to give to B Rs. 1,000. This is a void agreement.

(b) A, for natural love and affection, promises to give his son, B, Rs. 1,000. A puts his promise to B into writing and registers it. This is a contract.

(c) A finds B’s purse and gives it to him. B promises to give A Rs. 50. This is a contract.

(d) A supports B’s infant son. B promises to pay A’s expenses in so doing. This is a contract.

(e) A owes B Rs. 1,000, but the debt is barred by the Limitation Act. A signs a written promise to pay B Rs. 500 on account of the debt. This is a contract.

(f) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A’s consent to the agreement was freely given. The agreement is a contract notwithstanding the inadequacy of the consideration.

(g) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A denies that his consent to the agreement was freely given.

The inadequacy of the consideration is a fact which the Court should take into account in considering whether or not A’s consent was freely given.

Natural love and affection as a consideration

In order to rely upon clause (1) of section 25, the existence of the factum of natural love and affection between parties standing in a near relation to each other is a condition precedent; Rajlukhy Dabee v. Bhootnath Mookherjee, (1900) 4 CWN 488.

Voluntary services

If the services are rendered voluntarily, without the desire of the promisor or otherwise than at his request and the promisor undertakes to recompense the person who has rendered his services for it. In such cases, the promise does not need a consideration to support it, and the case falls under section 25 of the Act; Sindha Shri Ganpatsingji v. Abraham alias Vazir Mahomed Akuji, (1895) 20 Bom 755.

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1. Subs. by Act 12 of 1891, sec. 2 and Sch. II, Pt. I, for “assurances”.

26. Agreement in restraint of marriage, void

Every agreement in restraint of the marriage of any person, other than a minor, is void.

Agreement in restraint of marriage

An agreement between two co-widows that if any of them remarried, she should forfeit her right to her share in the deceased husband’s property is not in restraint of marriage; A. Suryanarayan Murthi v. P. Krishna Murthy, AIR 1957 Ori 125.

27. Agreement in restraint of trade, void

Every agreement by which anyone is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void.

Exception 1 : Saving of agreement not to carry on business of which good will is sold – One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, provided that such limits appear to the court reasonable, regard being had to the nature of the business.

Agreement in restraint of trade

The words “restrained from exercising a lawful profession, trade or business”, do not mean an absolute restriction, and are intended to apply to a partial restriction, a restriction limited to same particular place; Mahbub Chander v. Raj Coomar, (1874) XIV Bengal Law Reports 76.

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1.Exceptions 2 and 3 rep. by Act 9 of 1932, sec. 73 and Sch. II.

28. Agreements in restrain of legal proceedings, void

¹[***]Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to the extent.

Exception 1 : Saving of contract to refer to arbitration dispute that may arise.This section shall not render illegal contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subject shall be referred to arbitration, and that only and amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.

²[***]

Exception 2: Saving of contract to refer question that have already arisen – Nor shall this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to reference to arbitration. ³

Agreement restricting law of limitation

The clause in the agreement that the appellant would not have any right under the bond after the expiry of six months from the date of termination of the contract has been held not to be contrary to section 28 of the Act nor it imposed any restriction to file a suit within six months; Food Corporation of India v. New India Assurance Co. Ltd., AIR 1994 SC 1896.

Jurisdiction of the proper court

It has been held that it is not open to the parties by agreement to confer jurisdiction on any court which it did not otherwise possess under section 20 of Code of Civil Procedure; Patel Roadways v. Prasad Trading Company, AIR 1992 SC 1514.

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1. Subs. by Act 1 of 1997, sec. 2, for certain words (w.e.f. 8-1-1997).

2. The second clause of Exception 1 rep. by Act 1 of 1877, sec. 2 and Sch.

3. Cf. the Arbitration Act, 1940 (10 of 1940) and the Companies Act, 1956 (1 of 1956), section 389.

29. Agreements void for uncertainty

Agreements, the meaning of which is not certain, or capable of being made certain, are void.

Illustrations

(a) A agrees to sell B “a hundred tons of oil”. There is nothing whatever to show what kind of oil was intended. The agreement is void for uncertainty.

(b) A agrees to sell B one hundred tons of oil of a specified description, known as an article of commerce. There is no uncertainty here to make the agreement void.

(c) A, who is a dealer in coconut-oil only, agrees to sell to B “one hundred tons of oil”. The nature of A’s trade affords an indication of the meaning of the words, and A has entered into a contract for the sale of one hundred tons of coconut-oil.

(d) A agrees to sell B “all the grain in my granary at Ramnagar”. There is no uncertainty here to make the agreement void.

(e) A agrees to sell to B “one thousand maunds of rice at a price to be fixed by C”. As the price is capable of being made certain, there is no uncertainty here to make the agreement void.

(f) A agrees to sell to B “my white horse for rupees five hundred or rupees one thousand”. There is nothing to show which of the two prices was to be given. The agreement is void.

30. Agreements by way of wager, void

Agreements by way of wager are void; and no suit shall be brought for recovering anything alleged to be won on any wager, or entrusted to any person to abide the result of any game or other uncertain event on which may wager is made. Exception on favour of certain prizes for horse-racing: This section shall not be deemed to render unlawful a subscription or contribution, or agreement to subscribe or contribute, made or entered into for or toward any plate, prize or sum of money, of the value or amount of five hundred rupees or upwards, to be rewarded to the winner or winners of any horse-race.

Section 294A of the Indian Penal Code not affected : Nothing in this section shall be deemed to legalize any transaction connected with horse-racing, to which the provisions of section 294A of the(45 of 1860) apply.

Scope

To treat an agreement by way of wager as void is that the law discourages people to enter into games of chance and make earning by trying their luck instead of spending their time, energy and labour for more fruitful and useful work for themselves, their family and the society; Subhash Kumar Manwani v. State of Madhya Pradesh, AIR 2000 MP 109.

Wagering Contract

A chit-fund does not come within the scope of wager; Narayana Ayyangar v. K.V. Ambalam, (1927) ILR 50 Mad 696 (FB).

Chapter III – Of contingent contracts

31. “Contingent contract” defined

A “contingent contract” is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen.

Illustration

A contracts to pay to B Rs.10,000 if B’s house is burnt. This is a contingent contract.

32. Enforcement of Contracts contingent on an event happening

Contingent contracts to do or not to do anything in an uncertain future event happens, cannot be enforced by law unless and until that event has happened. If the event becomes impossible, such contracts become void.

Illustrations

(a) A makes a contract with B to buy B’s horse if A survives C. This contract cannot be enforced by law unless and until C dies in A’s lifetime.

(b) A makes a contract with B to sell a horse to B at a specified price, if C, to whom the horse has been offered, refuses to buy him. The contract cannot be enforced by law unless and until C refuses to buy the horse.

(c) A contracts to pay B a sum of money when B marries C. C dies without being married to B. The contract becomes void.

Applicability

The essential idea upon which doctrine of frustration is based is that of impossibility of performance of contract; Satyabrata Ghose v. Mugneeram Bangur, AIR 1954 SC 44.

33. Enforcement of contract contingent on an event not happening

Contingent contracts to do or not to do anything if an uncertain future event does not happen, can be enforced when the happening of that event becomes impossible, and not before.

Illustration

A agrees to pay B a sum of money if a certain ship does not return. The ship is sunk. The contract can be enforced when the ship sinks.

34. When event on which contract is contingent to be deemed impossible, if it is the future conduct of a living person

If the future event on which a contract is contingent is the way in which a person will act at an unspecified time, the event shall be considered to become impossible when such person does anything which renders it impossible that the should so act within any definite time, or otherwise than under further contingencies.

Illustration

A agrees to pay B a sum of money if B marries C, C marries D. The marriage of B to C must now be considered impossible, although it is possible that D may die and that C may afterwards marry B.

35. When contracts become void, which are contingent on happening of specified event within fixed time

Contingent contracts to do or not to do anything, if a specified uncertain event happens within a fixed time, become void, if, at the expiration of the time fixed, such event has not happened, or if, before the time fixed, such event becomes impossible.

When contracts may be enforced, which are contingent on specified event not happening within fixed time : Contingent contract tutu or not to do anything, if a specified uncertain event does not happen within a fixed time, may be enforced by law when the time fixed has expired and such event has not happened, or before the time fixed has expired, if it become certain that such event will not happen.

Illustrations

(a) A promises to pay B a sum of money if a certain ship returns within a year. The contract may be enforced if the ship returns within the year; and becomes void if the ship is burnt within the year.

(b) A promises to pay B a sum of money if a certain ship does not return within a year. The contract may be enforced if the ship does not return within the year, or is burnt within the year.

36. Agreements contingent on impossible event void

Contingent agreements to do or not to do anything, if an impossible event happens, are void, whether the impossibility of the event is known or not to the parties to agreement at the time when it is made.

Illustrations

(a) A agrees to pay B 1,000 rupees if two straight lines should enclose a space. The agreement is void.

(b) A agrees to pay B 1,000 rupees if B will marry A’s daughter C. C was dead at the time of the agreement. The agreement is void.

Chapter IV – Of the performance of contracts which must be performed

37. Obligations of parties to contract

The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance in dispensed with or excused under the provision of this Act, or of any other law.

Promises bind the representative of the promisor in case of the death of such promisors before performance, unless a contrary intention appears from the contract.

Illustrations

(a) A promises to deliver goods to B on a certain day on payment of Rs.1,000. A dies before that day. A’s representatives are bound to deliver the goods to B, and B is bound to pay the Rs. 1,000 to A’s representatives.

(b) A promises to paint a picture for B by a certain day, at a certain price. A dies before the day. The contract cannot be enforced either by A’s representatives or by B

Assignment of Contract

A person cannot be subject to the obligation of a contract to which he is not a party and the logical consequence is that a stranger cannot acquire rights under a contract; Harnam Singh v. Purbi Devi, AIR 2000 HP 108.

Scope

If the agreement makes express provision for enhancement of rate of interest, held, bank need not put borrower on notice before charging higher rate on the basis of the agreement; Syndicate Bank v. R. Veeranna, (2003) 2 SCC 15.

It is well settled principle of law that an arbitration clause is assignable, if the main contract is assignable. An arbitration agreement will find not only the actual parties to it, but also an assignee of the contract containing it; R. K. Associates v. V. Channappa, AIR 1993 Kant 248.

38. Effect of refusal to accept offer of performance

Where a promisor has made an offer of performance to the promisee, and the offer has not been accepted, the promisor is not responsible for non-performance, nor does he thereby lose his rights under the contract.

Every such offer must fulfil the following conditions -

(1) it must be unconditional;

(2) it must be made at a proper time and place, and under such circumstances that the person to whom it is made may have a reasonable opportunity of ascertaining that the person by whom it is been made is able and willing there and then to do the whole of what he is bound by his promise to do;

(3) if the offer is an offer to deliver anything to the promisee, the promisee must have a reasonable opportunity of seeing that the thing offered is the thing which the promisor is bound by his promise to deliver. An offer to one of several joint promisees has the same legal consequences as an offer to all of them.

Illustration

A contracts to deliver to B at his warehouse, on the 1st March, 1873, 100 bales of cotton of a particular quality. In order to make an offer of performance with the effect stated in this section. A must bring the cotton to B’s warehouse, on the appointed day, under such circumstances that B may have a reasonable opportunity of satisfying himself that the thing offered is cotton of the quality contracted for, and that there are 100 bales.

Tender must be strict

Where the instructions have been issued to Bidders asking them to state against each work item unit rate in Indian Currency and in U.S. Dollar or Japanese Yen. Then the quoating of the unit rate 50 per cent. in Indian Rupee and 50 per cent. in U.S. Dollar will not be treated as clerical or Mechinical error and cannot be allowed to be corrected; West Bengal Electricity Board v. Patel Engg. Co. Ltd., AIR 2001 SC 683.

39. Effect of refusal of party to perform promise wholly

When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract,unless he has signified, by words or conduct, his acquiescence in its continuance

Illustrations

(a) A, a singer, enters into a contract with B, the manager of a theatre, to sing at his theatre two nights in every week during next two months, and B engages to pay her 100 rupees for each night’s performance. On the sixth night A wilfully absents herself from the theatre. B is at liberty to put an end to the contract.

(b) A, a singer, enters into a contract with B, the manager of a theatre, to sing at his theatre two nights in every week during next two months, and B engages to pay her at the rate of 100 rupees for each night. On the sixth night A wilfully absents herself. With the assent of B, A sings on the seventh night. B has signified his acquiescence in the continuance of the contract, and cannot now put an end to it, but is entitled to compensation for the damage sustained by him through A’s failure to sing on the sixth night.

40. Person by whom promises is to be performed

If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contain in it should be performed by the promisor himself, such promise must be performed by the promisor.

In other cases, the promisor or his representative may employ a competent person to perform it.

Illustrations

(a) A promises to pay B a sum of money. A may perform this promise, either by personally paying the money to B or by causing it to be paid to B by another; and, if A dies before the time appointed for payment, his representatives must perform the promise, or employ some proper person to do so.

(b) A promises to paint a picture for B. A must perform this promise personally.

41. Effect of accepting performance from this person

When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor.

42. Devolution of joint liabilities

When two or more person have made a joint promise, then, unless a contrary intention appears by the contract, all such persons, during their joint lives, and, after the death of any of them, his representative jointly with the survivor or survivors, and, after the death of the last survivor the representatives of all jointly, must fulfil the promise.

43. Any one of joint promisors may be compelled to perform

When two or more persons make a joint promise, the promise may, in the absence of express agreements to the contrary, compel any ¹one or more of such joint promisors to perform the whole promise.

Each promisor may compel contribution : Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract.

Sharing of loss by default in contribution : If any one of two or more joint promisors make default in such contribution, the remaining joint promisors mus bear the loss arising from such default in equal shares.

Explanation : Nothing in this section shall prevent a surety from recovering, from his principal, payments made by the surety on behalf of the principal, or entitle the principal to recover anything from the surety on account of payments made by the principal.

Illustrations

(a) A, B and C jointly promise to pay D 3,000 rupees. D may compel either A or B or C to pay him 3,000 rupees.

(b) A, B and C jointly promise to pay D the sum of 3,000 rupees. C is compelled to pay the whole. A is insolvent, but his assets are sufficient to pay one-half of his debts. C is entitled to receive 500 rupees from A’s estate, and 1,250 rupees from B.

(c) A, B and C are under a joint promise to pay D 3,000 rupees. C is unable to pay anything, and A is compelled to pay the whole. A is entitled to receive 1,500 rupees from B.

(d) A, B and C are under a joint promise to pay D 3,000 rupees. A and B being only sureties for C. C fails to pay. A and B are compelled to pay the whole sum. They are entitled to recover it from C.

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1. Subs. by Act 12 of 1891, sec. 2 and Sch. II Pt. I, for “one”.

44. Effect of release of one joint promisor

Where two or more persons have made a joint promise, a release of one of such joint promisors by the promisee does not discharge the other joint promisor,neither does it free the joint promisor so released from responsibility to the other joint promisor or joint promisors.¹

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1. See section 138. infra.

45. Devolution of joint rights

When a person has made a promise to two or more persons jointly, then unless contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and, after the death of any one of them, with the representative of such deceased person jointly with the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly.¹

Illustration

A, in consideration of 5,000 rupees lent to him by B and C, promises B and C jointly to repay them that sum with interest on a day specified. B dies. The right to claim performance rests with B’s representative jointly with C during C’s life, and after the death of C, with the representatives of B and C jointly.

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1. For an exception to section 45 in case of Government securities, see the Public Debt Act, 1944 (18 of 1944), section 8.

46. Time for performance of promise, where no application is to be made and no time is specified

Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time.

Explanation : The question “what is a reasonable time” is, in each particular case, a question of fact.

47. Time and place for performance of promise, where time is specified and no application to be made

When a promise is to be performed on a certain day, and the promisor has undertaken to perform it without the application by the promisee, the promisor may perform it at any time during the usual hours of business on such day and at the place at which the promise ought to be performed.

Illustration

A promises to deliver goods at B’s warehouse on the first January. On the day A brings the goods to B’s warehouse, but after the usual hour closing it, and they are not received. A has not performed his promise.

48. Application for performance on certain day to be at proper time and place

When a promise is to be performed on a certain day, and the promisor has not undertaken to perform it without application by the promisee, it is the duty of the promisee to apply for the performance at a proper place within the usual hours of business.

Explanation : The question “what is proper time and place” is, in each particular case, a question of fact.

49. Place for the performance of promise, where no application to be made and no place fixed for performance

When a promise is to be performed without application by the promisee, and not place is fixed for the performance of it, it is the duty of the promisor to apply to the promisee to appoint a reasonable place for the performance of the promise, and to perform it at such a place.

Illustration

A undertakes to deliver a thousand maunds of jute to B on a fixed day. A must apply to B to appoint a reasonable place for the purpose of receiving it, and must deliver it to him at such place.

50. Performance in manner or at time prescribed or sanctioned by promise

The performance of any promise may be made in any manner, or at any time which the promisee prescribes or sanctions

Illustrations

(a) B owes A 2,000 rupees. A desires B to pay the amount to A’s account with C, a banker. B, who also banks with C, orders the amount to be transferred from his account to A’s credit, and this is done by C. Afterwards, and before A knows of the transfer, C fails. There has been a good payment by B.

(b) A and B are mutually indebted. A and B settle an account by setting off one item against another, and B pays A the balance found to be due from him upon such settlement. This amounts to a payment by A and B, respectively, of the sums which they owed to each other.

(c) A owes B 2,000 rupees. B accepts some of A’s goods in reduction of the debt. The delivery of the goods operates as a part payment.

(d) A desires B, who owes him Rs.100, to send him a note for Rs.100 by post. The debt is discharged as soon as B puts into the post a letter containing the note duly addressed to A.

Manner and time of performance

If any agreement states that a particular act relating to the furtherance of a contract is to be done in a particular manner, it should be done in that manner and it is not open to the parties to chalk out his own manner of performing his part of contract; Bishamber Nath Agarwal v. Kishan Chand, AIR 1990 All 70.

51. Promisor not bound to perform, unless reciprocal promisee ready and willing to perform

When a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise.

Illustrations

(a) A and B contract that A shall deliver goods to B to be paid for by B on delivery. A need not deliver the goods, unless B is ready and willing to pay for the goods on delivery.

B need not pay for the goods, unless A is ready and willing to deliver them on payment.

(b) A and B contract that A shall deliver goods to B at a price to be paid by instalments, the first instalment to be paid on delivery.

A need not deliver, unless B is ready and willing to pay the first instalment on delivery.

B need not pay the first instalment, unless A is ready and willing to deliver the goods on payment of the first instalment.

52. Order of performance of reciprocal promises

Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order, and where the orders is not expressly fixed by the contract, they shall be performed in that order which the nature of transaction requires.

Illustrations

(a) A and B contract that A shall build a house for B at a fixed price. A’s promise to build the house must be performed before B’s promise to pay for it.

(b) A and B contract that A shall make over his stock-in-trade to B at a fixed price, and B promise to give security for the payment of the money. A’s promise need not be performed until the security is given, for the nature of transaction requires that A should have security before he delivers up his stock.

53. Liability of party preventing event on which contract is to take effect

When a contract contains reciprocal promises and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented; and he is entitled to compensation ¹from the other party for any loss which he may sustain in consequence of the non-performance of the contract.

Illustration

A and B contract that B shall execute certain work for A for a thousand rupees. B is ready and willing to execute the work accordingly, but A prevents him from doing so. The contract is voidable at the option of B; and, if he elects to rescind it, he is entitled to recover from A compensation for any loss which he has incurred by its non-performance.

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 1.See section 73, infra.

54. Effect of default as to the promise which should be performed, in contract consisting or reciprocal promises

When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract.

Illustrations

(a) A hires B’s ship to take in and convey, from Calcutta to the Mauritius, a cargo to be provided by A, B receiving a certain freight for its conveyance. A does not provide any cargo for the ship. A cannot claim the performance of B’s promise, and must take compensation to B for the loss which B sustains by the non-performance of the contract.

(b) A contracts with B to execute certain builder’s work for a fixed price, B supplying the scaffolding and timber necessary for the work. B refuses to furnish any scaffolding or timber, and the work cannot be executed. A need not execute the work, and B is bound to make compensation to A for any loss caused to him by the non-performance of the contract.

(c) A contracts with B to deliver to him, at a specified price, certain merchandise on board a ship which cannot arrive for a month, and B engages to pay for the merchandise within a week from the date of the contract. B does not pay within the week. A’s promise to deliver need not be performed, and B must make compensation.

(d) A promises B to sell him one hundred bales of merchandise, to be delivered next day, and B promises A to pay for them within a month. A does not deliver according to his promise. B’s promise to pay need not be performed, and A must make compensation.

55. Effect of failure to perform a fixed time, in contract in which time is essential

When a party to a contract promises to do a certain thing at or before a specified time, or certain thins at or before a specified time and fails to do such thing at or before a specified time, and fails to do such thing at or before a specified time, the contract or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of essence of the contract.

Effect of such failure when time is not essential: If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.

Effect of acceptance of performance at time other than agreed upon: If, in case of a contract voidable on account of the promisor’s failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than agree, the promisee cannot claim compensation of any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of acceptance, he give notice to the promisor of his intention to do so.¹

Time – whether essence of Contract

The parties, may make time of the essence either expressly in terms which unmistakably provide that they intended to do so. Alternately, making of time as the essence of a contract may be inferred from the nature of the contract, the property or the surrounding circumstances; Swarnam Ramchandran v. Aravacode Chakungal Jayapalan, AIR 2000 Bom 410.

When the contract itself provides for extension of time, the same cannot be termed to be the essence of the contract and default, however, in such a case it does not make the contract voidable; Arosan Enterprises Ltd. v. Union of India, AIR 1999 SC 3804.

The deferred clause indicated that time was not the essence of the contract. But in the present case the defendants had kept quite for an unreasonably long time so the defendants cannot rely on this clause but the plaintiffs can seek the relief of possession prayed for; Y.A. Kader v. Muthulakshmi Ammal, AIR 1992 Mad 208.

In a contract for the sale of land or immovable property, it would normally be presumed that time was not of the essence of the contract; Gomathinayagam Pillai v. Palaniswami Nadar, AIR 1967 SC 868: (1967) 1 SCR 227.

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1. Cf. sections 62 and 63, infra.

56. Agreement to do impossible act

An agreement to do an act impossible in itself is void. Contract to do act afterwards becoming impossible or unlawful: A contract to do an act which, after the contract is made, becomes impossible or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.¹

Compensation for loss through non-performance of act known to be impossible or unlawful: Where one person has promised to be something which he knew or, with reasonable diligence, might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promise for any loss which such promisee sustains through the non-performance of the promise.

Illustrations

(a) A agrees with B to discover treasure by magic. The agreement is void.

(b) A and B contract to marry each other. Before the time fixed for the marriage, A goes mad. The contract becomes void.

(c) A contracts to marry B, being already married to C, and being forbidden by the law to which he is subject to practise polygamy. A must make compensation to B for the loss caused to her by the non-performance of his promise.

(d) A contracts to take in cargo for B at a foreign port. A’s Government afterwards declares war against the country in which the port is situated. The contract becomes void when war is declared.

(e) A contracts to act at a theatre for six months in consideration of a sum paid in advance by B. On several occasions A is too ill to act. The contract to act on those occasions becomes void.

Contracting party must not be in default

In contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility arising from the perishing of the person or thing shall excuse performance; Taylor v. Caldwel, 122 ER 30.

It is not permissible for the courts to travel outside the provisions of the section and import the principles of English law de hors the statutory provisions; Satyabrata Ghose v. Mugneeram Bangur & Co., AIR 1954 SC 44.

Impossibility may be in law or in fact

The doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of section 56; Satyabrata Ghose v. Mugneeram Bangur, AIR 1954 SC 44.

Scope and applicability

Section 56 lays a positive rule relating to frustration and does not leave the matter of frustration to the court to be determined. There can be no agreement on altered circumstances and it has also been held that if a consideration of the terms of the contract in the light of the circumstances when it was made shows that the parties never agreed to be bound in a fundamentally different situation which unexpectedly arises the contract ceases to bind at that point, not because the court in its discretion considers it just but on true construction it does not apply in that situation; Shyam Biri Works Pvt. Ltd. v. U.P. Forest Corporation, AIR 1990 SC 205.

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1. See section 65, infra.

57. Reciprocal promise to do things legal, and also other things illegal

Where persons reciprocally promise, firstly to do certain things which are legal, and, secondly under specified circumstances, to do certain other things which are illegal, the first set of promise is a contract, but the second is a void agreement.

Illustration

A and B agree that A shall sell B a house for 10,000 rupees, but that, if B uses it as a gambling house, he shall pay A 50,000 rupees for it.

The first set of reciprocal promises, namely, to sell the house and to pay 10,000 rupees for it, is a contract.

The second set is for an unlawful object, namely, that B may use the house as a gambling house, and is a void agreement.

58. Alternative promise, one branch being illegal

In the case of an alternative promise, one branch of which is legal and other other illegal, the legal branch alone can be enforced.

Illustration

A and B agree that A shall pay B 1,000 rupees, for which B shall afterwards deliver to A either rice or smuggled opium.

This is a valid contract to deliver rice, and a void agreement as to the opium.

59. Application of payment where debt to be discharged is indicated

Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying, that the payment is to be applied to the discharge of some particular debt, the payment if accepted, must be applied accordingly.

Illustrations

(a) A owes B, among other debts, 1,000 rupees upon a promissory note, which falls due on the first June. He owes B no other debt of that amount. On the first June, A pays to B 1,000 rupees. The payment is to be applied to the discharge of the promissory note.

(b) A owes to B, among other debts, the sum of 567 rupees. B writes to A and demands payment of this sum. A sends to B 567 rupees. This payment is to be applied to the discharge of the debt of which B had demanded payment.

Scope of applicability

To several distinct debts payable by a person and not to the various heads of one debt. The principal and interest due on a single debt or decree passed on such debt carrying subsequent interest cannot be held to several distinct debts. Accepting such an argument would amount to doing violence to the language employed in the section and the purpose sought to be achieved by it. Besides it would also be contradictory in terms; Industrial Credit and Development Syndicate now called I.C.D.S. Ltd. v. Smithaben H. Patel, AIR 1999 SC 1036.

The principle applies to several distinct debts and not to a single debt payable by instalments; Munno Bibi v. Commissioner of Income-tax, AIR 1952 All 514.

60. Application of payment where debt to be discharged is not indicated

Where the debtor has ommitted to intimate, and there are no other circumstances indicating to which debt the payment is to be applied, the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being as to the limitations of suits.

61. Application of payment where neither party appropriates

Where neither party makes any appropriation, the payment shall be applied in discharge of the debts in order of time, whether they are or are not barred by the law in force for the time being as to the limitation of suits. If the debts are of equal standing, the payment shall be applied in discharge of each proportionally.

62. Effect of novation, rescission, and alteration of contract-

If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.

Illustrations

 (a) A owes money to B under a contract. It is agreed between A, B and C, that B shall thenceforth accept C as his debtor, instead of A. The old debt of A to B is at an end, and a new debt from C to B has been contracted.

(b) A owes B 10,000 rupees. A enters into an agreement with B, and gives B a mortgage of his (A’s), estate for 5,000 rupees in place of the debt of 10,000 rupees. This is a new contract and extinguishes the old.

(c) A owes B 1,000 rupees under a contract, B owes C 1,000 rupees, B orders A to credit C with 1,000 rupees in his books, but C does not assent to the agreement. B still owes C 1,000 rupees, and no new contract has been entered into.

Alteration of Contracts

Person entering into agreement under section 8(1)(a) of Requisition and Acquisition of Immovable Property Act cannot later claim a legal right to obtain a court order directing reopening of the agreement, just because a subsequent award granted higher compensation for land similar to his own; Dayal Singh v. Union of India, (2003) 2 SCC 593.

If the parties to a Contract agree

The plaintiff Bank had agreed that the defendants could pay the amount of Rs.10,00,000 which would be convenient to both the parties subsequent to the filing of the suit. The parties have entered into a second agreement to supersede the liability and the entitlement formulated through the transaction and that under the circumstances the said subsequent agreement squarely comes within the ambit of section 62 of the Act; Central Bank of India v. V. G. Naidu & Sons (Leather) Pvt. Ltd., AIR 1992 Mad 139.

Material alteration

A material alteration is one which varies the rights, liabilities or legal position of the parties as ascertained by the deed from its original state, or otherwise varies the effect of the instrument as originally expressed or reduces to certainty some provisions which were originally unascertained and as such void, or which may otherwise prejudice the party bound by the deed as originally executed. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. The last line in the schedule of property regarding delivery of possession was held to be inserted not on the date of execution of agreement but subequent to it and have material alteration; Janab M. H. M. Yakoob v. M. Krishnan, AIR 1992 Mad 80.

Where an existing mortgage was replaced by a new agreement of mortgage, the new agreement being not enforceable for want of registration, the parties were still bound by the original mortgage; Shanker Lal Damodhar v. Ambalal Ajaipal, AIR 1946 Nag 260.

63. Promise may dispense with or remit performance of promise

Every promise may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, ¹or may accept instead of it any satisfaction which he thinks fit.

Illustrations

(a) A promises to paint a picture for B. B afterwards forbids him to do so. A is no longer bound to perform the promise.

(b) A owes B 5,000 rupees. A pays to B, and B accepts, in satisfaction of the whole debt, 2,000 rupees paid at the time and place at which the 5,000 rupees were payable. The whole debt is discharged.

(c) A owes B 5,000 rupees. C pays to B 1,000 rupees, and B accepts them, in satisfaction of his claim on A. This payment is a discharge of the whole claim.²

(d) A owes B, under a contract, a sum of money, the amount of which has not been ascertained. A, without ascertaining the amount, gives to B, and B, in satisfaction thereof, accepts, the sum of 2,000 rupees. This is a discharge of the whole debt, whatever may be its amount.

(e) A owes B 2,000 rupees, and is also indebted to another creditors. A makes an arrangement with his creditors, including B, to pay them a ³[composition] of eight annas in the rupee upon their respective demands. Payment to B of 1,000 rupees is a discharge of B’s demand.

Becomes void – discovered to be void

Section 65 starts from the basis of there being an agreement or contract between competent parties and has no application to a case in which there never was, and never could have been any contract, e.g. where one of the parties was a minor; Mohori Bibee v. Dharmodas Ghose, (1903) ILR 30 Cal 539 (PC).

Necessity for consideration

The plaintiff bank accepted the sum of Rs. 10,00,000 from the defendants towards the full discharge of the suit claim according to second agreement. It was held that having received the said compromise amount, it is not open for the plaintiff to claim the overdue interest to the extent of Rs. 69,571.20 for which there has been no agreement and that under the circumstances the claim, if any made by the plaintiff has been directly hit by section 63 of Contract Act; Central Bank of India v. V. G. Naidu & Sons (Leather) Pvt. Ltd., AIR 1992 Mad 139.

Waiver

A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right; Jagad Bandhu Chatterjee v. Nilima Rani, (1969) 3 SCC 455: (1970) 2 SCR 925: (1971) 1 SCJ 38.

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1. But See section 135, infra.

2. See section 41, supra.

3. Subs. by Act 12 of 1891, sec. 2 and Sch. II, Pt. I, for “compensation”.

64. Consequence of rescission of voidable contract

When a person at whose option a contract is voidable rescinds it, the other party thereto need to perform any promise therein contained in which he is the promisor. The party rescinding a voidable contract shall, if he have received any benefit thereunder from another party to such contract restore such benefit, so far as may be, to the person from whom it was received.¹

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1.See section 75, infra.

65. Obligation of person who has received advantage under void agreement, or contract that becomes void -

When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore, it, or to make compensation for it, to the person from whom he received it.

Illustrations

 (a) A pays B 1,000 rupees, in consideration of B’s promising to marry C, A’s daughter. C is dead at the time of the promise. The agreement is void, but B must repay A the 1,000 rupees.

 (b) A contracts with B to deliver to him 250 maunds of rice before the first of May. A delivers 130 maunds only before that day, and none after. B retains the 130 maunds after the first of May. He is bound to pay A for them.

 (c) A, a singer, contracts with B, the manager of a theatre, to sing at his theatre for two nights in every week during the next two months, and B engages to pay her a hundred rupees for each night’s performance. On the sixth night, A wilfully absents herself from the theatre, and B, in consequence, rescinds the contract. B must pay A for the five nights on which she had sung.

 (d) A contracts to sing for B at a concert for 1,000 rupees, which are paid in advance. A is too ill to sing. A is not bound to make compensation to B for the loss of the profits which B would have made if A had been able to sing, but must refund to B the 1,000 rupees paid in advance.

Frustrated Contracts

Where under a contract of Insurance the insured gave a cheque to the insurer for payment of first premium amount, but the cheque was dishonoured by the drawee-bank due to inadequacy of the funds in the account of the drawer, the insurer is not liable in such a situation to honour the claim of the insured. Even if the insurer has disbursed the amount covered by the policy to the insured before the cheque was returned dishonoured insurer is entitled to get the money back; National Insurance Company Ltd. v. Seema Malhotra, AIR 2001 SC 1197.

66. Mode of communicating or revoking rescission of voidable contract

The rescission of a voidable contract may be communicated or revoked in the same manner, and subject to some rules, as apply to the communication or revocation of the proposal. proposal.¹

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1.see sections 3 and 5, supra.

67. Effect of neglect or promise to afford promisor reasonable facilities for performance

If any promisee neglects or refuses to afford the promisee reasonable facilities for the performance of his promise, the promisor is excused by such neglect or refusal as to non-performance caused thereby.

Illustration

A contracts with B to repair B’s house.

B neglects or refuses to point out to A the places in which his house requires repair.

A is excused for the non-performance of the contract, if it is caused by such neglect or refusal.

Chapter V – Of certain relations resembling those created by contract

68. Claim for necessaries supplied to person incapable of contracting, or on his account

If a person, incapable of entering into a contract, or anyone whom he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person.

Illustrations

(a) A supplies B, a lunatic, with necessaries suitable to his condition in life. A is entitled to be reimbursed from B’s property.

 (b) A suplies the wife and children of B, a lunatic, with necessaries suitable to their condition in life. A is entitled to be reimbursed from B’s property.

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1.   The property of a Government ward in Madhya Pradesh is not liable under this section; see the C.P. Court of Wards Act, 1899 (C.P. Act 24 of 1899), section 31(I).

69. Reimbursement of person paying money due by another, in payment of which he is interested

A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.

Illustration

B holds land in Bengal, on a lease granted by A, the zamindar. The revenue payable by A to the Government being in arrear, his land is advertised for sale by the Government. Under the revenue law, the consequence of such sale will be the annulment of B’s lease. B to prevent the sale and the consequent annulment of his own lease, pays the Government the sum due from A. A is bound to make good to B the amount so paid.

Contribution and reimbursement

Where a person is jointly liable with other to pay, a payment by him of the other’s share would not give him a right of recovery under this section; Jagpatiraju v. Sadnusannama, AIR 1916 Mad 980.

70. Obligation of person enjoying benefit of non-gratuitous act

Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such another person enjoys the benefit thereof, the letter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.

71. Responsibility of finder of goods

A person who finds goods belonging to another, and takes them into his custody, is subject to the same responsibility as a bailee.¹

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1.See sections 151 and 152,infra.

72. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion

A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it.

Illustrations

 (a) A and B jointly owe 100 rupees to C, A alone pays the amount to C, and B, not knowing this fact, pays 100 rupees over again to C. C is bound to repay the amount to B.

 (b) A railway company refuses to deliver up certain goods to the consignee except upon the payment of an illegal charge for carriage. The consignee pays the sum charged in order to obtain the goods. He is entitled to recover so much of the charge as was illegal and excessive.

Ingredients of unjust enrichment

Under this Section the principle of unjust enrichment cannot be extended to give a right to the State to recover or realise vend fee after the concerned statute for realisation or recovery of vend fee has been struck down; M/s. Somaiya Organics (India) Ltd. V. State of Uttar Pradesh, AIR 2001 SC 1725.

Chapter VI – Of the consequences of breach of contract

73. Compensation of loss or damage caused by breach of contract

When a contract has been broken, the party who suffers by such breach is entitled to receive, form the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss of damage sustained by reason of the breach.

Compensation for failure to discharge obligation resembling those created by contract : When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.

Explanation : In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by non-performance of the contract must be taken into account.

Illustrations

(a) A contracts to sell and deliver 50 maunds of saltpetre to B, at a certain price to be paid on delivery. A breaks his promise. B is entitled to receive from A, by way of compensation, the sum, if any, by which the contract price falls short of the price for which B might have obtained 50 maunds of saltpetre of like quality at the time when the saltpetre ought to have been delivered.

 (b) A hires B’s ship to go to Bombay, and there takes on board, on the first of January, a cargo, which A is to provide, and to bring it to Calcutta, the freight to be paid when earned. B’s ship does not go to Bombay, but A has opportunities of procuring suitable conveyance for the cargo upon terms as advantageous as those on which he had chartered the ship. A avails himself of those opportunities, but is put to trouble and expense in doing so. A is entitled to receive compensation from B in respect of such trouble and expense.

 (c) A contracts to buy of B, at a stated price, 50 maunds of rice, no time being fixed for delivery. A afterwards informs B that he will not accept the rice if tendered to him. B is entitled to receive from A, by way of compensation, the amount, if any, by which the contract price exceeds that which B can obtain for the rice at the time when A informs B that he will not accept it.

 (d) A contracts to buy B’s ship for 60,000 rupees, but breaks his promise. A must pay to B, by way of compensation, the excess, if any, of the contract price over the price which B can obtain for the ship at the time of the breach of promise.

 (e) A, the owner of a boat, contracts with B to take a cargo of jute to Mirzapur, for sale at that place, starting on a specified day. The boat, owing to some avoidable cause, does not start at the time appointed, whereby the arrival of the cargo at Mirzapur is delayed beyond the time when it would have arrived if the boat had sailed according to the contract. After that date, and before the arrival of the cargo, the price of jute falls. The measure of the compensation payable to B by A is the difference between the price which B could have obtained for the cargo at Mirzapur at the time when it would have arrived if forwarded in due course, and its market price at the time when it actually arrived.

 (f) A contracts to repair B’s house in a certain manner, and receives payment in advance. A repairs the house, but not according to contract. B is entitled to recover from A the cost of making the repairs conform to the contract.

 (g) A contracts to let his ship to B for a year, from the first of January, for a certain price. Freights rise, and, on the first of January, the hire obtainable for the ship is higher than the contract price. A breaks his promise. He must pay to B, by way of compensation, a sum equal to the difference between the contract price and the price for which B could hire a similar ship for a year on and from the first of January.

 (h) A contracts to supply B with a certain quantity of iron at a fixed price, being a higher price than that for which A could procure and deliver the iron. B wrongfully refuses to receive the iron. B must pay to A, by way of compensation, the difference between the contract price of the iron and the sum for which A could have obtained and delivered it.

 (i) A delivers to B, a common carrier, a machine, to be conveyed, without delay, to A’s mill, informing B that his mill is stopped for want of machine. B unreasonably delays the delivery of the machine, and A, in consequence, loses a profitable contract with the Government. A is entitled to receive from B, by way of compensation, the average amount of profit which would have been made by the working of the mill during the time that delivery of it was delayed, but not the loss sustained through the loss of the Government contract.

 (j) A, having contracted with B to supply B with 1,000 tons of iron at 100 rupees a ton, to be delivered at a stated time, contracts with C for the purchase of 1,000 tons of iron at 80 rupees a ton, telling C that he does so for the purpose of performing his contract with B. C fails to perform his contract with A, who cannot procure other iron, and B, in consequence, rescinds the contract. C must pay to A 20,000 rupees, being the profit which A would have made by the performance of his contract with B.

 (k) A contracts with B to make and deliver to B, by a fixed day, for a specified price, a certain piece of machinery. A does not deliver the piece of machinery, at the time specified, and, in consequence of this, B is obliged to procure another at a higher price than that which he was to have paid to A, and is prevented from performing a contract which B had made with a third person at the time of his contract with A (but which had not been communicated to A), and is compelled to make compensation for breach of that contract. A must pay to B, by way of compensation, the difference between the contract price of the price of machinery and the sum paid by B for another, but not the sum paid by B to the third person by way of compensation.

 (l) A, a builder, contracts to erect and finish a house by the first of January, in order that B may give possession of it at that time to C, to whom B has contracted to let it. A is informed of the contract between B and C. A builds the house so badly that, before the first of January, it falls down and has to be re-built by B, who, in consequence, loses the rent which he was to have received from C, and is obliged to make compensations to C for the breach of his contract. A must make compensation to B for the cost of rebuilding of the house, for the rent lost, and for the compensation made to C.

(m) A sells certain merchandise to B, warranting it to be of a particular quality, and B, in reliance upon this warranty, sells it to C with a similar warranty. The goods prove to be not according to the warranty, and B becomes liable to pay C a sum of money by way of compensation. B is entitled to be reimbursed this sum by A.

 (n) A contracts to pay a sum of money to B on a day specified. A does not pay the money on that day. B, in consequence of not receiving the money on that day, is unable to pay his debts, and is totally ruined. A is not liable to make good to B anything except the principal sum he contracted to pay, together with interest upto the day of payment.

 (o) A contracts to deliver 50 maunds of saltpetre to B on the first of January, at a certain price, B, afterwards, before the first of January, contracts to sell the saltpetre to C at a price higher than the market price of the first of January. A breaks his promise. In estimating the compensation payable by A to B, the market price of the first of January, and not the profit which would have arisen to B from the sale to C, is to be taken into account.

 (p) A contracts to sell and deliver 500 bales of cotton to B on a fixed day. A knows nothing of B’s mode of conducting his business. A breaks his promise, and B, having no cotton, is obliged to close his mill. A is not responsible to B for the loss caused to B by closing of the mill.

 (q) A contracts to sell and deliver to B, on the first of January, certain cloth which B intends to manufacture into caps of a particular kind, for which there is no demand, except at that season. The cloth is not delivered till after the appointed time, and too late to be used that year in making caps. B is entitled to receive from A, by way of compensation, the difference between the contract price of the cloth and its market price at the time of delivery, but not the profits which he expected to obtain by making caps, nor the expenses which he has been put to in making preparation for the manufacture.

 (r) A, a ship owner, contracts with B to convey him from Calcutta to Sydney in A’s ship, sailing on the first of January, and B pays to A, by way of deposit, one-half of his passage-money. The ship does not sail on the first of January, and B, after being, in consequence, detained in Calcutta for some time, and thereby put to some expense, proceeds to Sydney in another vessel, and, in consequence, arriving too late in Sydney, loses a sum of money. A is liable to repay to B his deposit, with interest, and the expense to which he is put by his detention in Calcutta, and the excess, if any, of the passage-money paid for the second ship over that agreed upon for the first, but not the sum of money which B lost by arriving in Sydney too late.

Award of damages

When a contract is broken, the party who suffers by such breach is entitled to receive compensation for any loss or damage caused to him from the party who has broken the contract; K. Narayana Kurup v. Sankaranarayanan, AIR 2000 Ker 296.

Breach of Contract of carriage

A corporation had placed the order on telephone. The entire transaction was oral and no attempt was made to produce any witness of the alleged buyer to support the contention that the market value of the goods was at the rate of Rs. 3,000 per metric ton. The material on record does not show that the price of goods has risen to Rs. 3,000. Therefore the damages as a result of non-delivery of the alleged goods, have not been proved by the plaintiff and he is not entitled to any damages; Thakral and Sons v. Indian Petro Chemicals Corporation Ltd., AIR 1994 Del 226.

Damages for breach of contract

When there is a breach of contract, party to the contract cannot determine as to who has committed breach. Damages could be recovered from the person who has committed breach only after the same is determined. The conditions of contract would be considered as liquidated damages and could be recovered and no power has been conferred on the other contracting party to determine the damages; P.V. Paily v. State of Kerala, AIR 2000 Ker 268.

The party in breach must make compensation in respect of the direct consequences flowing from the breach and not in respect of loss or damage indirectly or remotely caused; Pannalal Jankidas v. Mohanlal, AIR 1951 SC 145: (1950) SCR 979.

Damages for breach of contract of service

A contract of service entered into by father on behalf of minor is void being without consideration; Raj Rani v. Prem Adib, AIR 1949 Bom 215.

Damages when become due

A seller who commits breach will be liable to compensate according to the prices at the place of sale and not at destination; Murlidhar Chiranji Lal v. Harish Chandra Dwarkadas, AIR 1962 SC 366: (1962) 1 SCR 653.

Limitation

The principle of awarding damages for a reasonable period or reasonable period of notice comes into play only when the contract of employment is not for a fixed period; S.S. Shetty v. Bharat Nidhi Ltd., AIR 1958 SC 12: (1958) SCR 442.

Measure of damages – Breach of contract for sale of goods

Damages are to be awarded as compensation for any loss or damage arising naturally in the usual course of things from the breach of contract; Karsandas H. Thacker v. Saran Engg. Co. Ltd., AIR 1965 SC 1981.

Natural and probable result of breach: Special damage

In cases of breach of contract the damages should be such as may fairly and reasonably be considered as arising naturally or the damages may be such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it. The damages, however cannot include compensation for any remote and indirect loss or damages sustained by reason of the breach; Hadley v. Bexendale, 9 Ex 742.

Taking advantage of benefit resulting from breach of contract

Where a vendee is in default and the vendor subsequently sells at a price higher than the market price on the date of delivery, the fact that by reason of the loss of the contract which the vendee had failed to perform, the vendor obtained the benefit of another contract which was of value to him did not entitle the vendee to the benefit of the later contract; Jamal v. Moola Dawood Sons & Co., (1916) AC 175.

74. Compensation of breach of contract where penalty stipulated for

¹[When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.

Explanation.— A stipulation for increased interest from the date of default may be a stipulation by way of penalty.]

Exception.— When any person enters into any bail-bond, recognizance or other instrument of the same nature or, under the provisions of any law, or under the orders of the ²[Central Government] or of any ³[State Government], gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein.

Explanation.— A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested.

Illustrations

 (a) A contracts with B to pay B Rs. 1,000 if he fails to pay B Rs. 500 on a given day. A fails to pay B Rs. 500 on that day. B is entitled to recover from A such compensation, not exceeding Rs. 1,000, as the Court considers reasonable.

 (b) A contracts with B that, if A practises as a surgeon within Calcutta , he will pay B Rs. 5,000. A practises as a surgeon in Calcutta . B is entitled to such compensation; not exceeding Rs. 5,000 as the court considers reasonable.

 (c) A gives a recognizance binding him in a penalty of Rs. 500 to appear in Court on a certain day. He forfeits his recognizance. He is liable to pay the whole penalty.

⁴[(d) A gives B a bond for the repayment of Rs. 1,000 with interest at 12 per cent. at the end of six months, with a stipulation that, in case of default, interest shall be payable at the rate of 75 per cent. from the date of default. This is a stipulation by way of penalty, and B is only entitled to recover from A such compensation as the Court considers reasonable.

 (e) A, who owes money to B, a money-lender, undertakes to repay him by delivering to him 10 maunds of grain on a certain date, and stipulates that, in the event of his not delivering the stipulated amount by the stipulated date, he shall be liable to deliver 20 maunds. This is a stipulation by way of penalty, and B is only entitled to reasonable consideration in case of breach.

 (f) A undertakes to repay B a loan of Rs. 1,000 by five equal monthly instalments, with a stipulation that, in default, of payment of any instalment, the whole shall become due. This stipulation is not by way of penalty, and the contract may be enforced according to its terms.

 (g) A borrows Rs. 100 from B and gives him a bond for Rs. 200 payable by five yearly instalments of Rs. 40, with a stipulation that, in default of payment of any instalment, the whole shall become due. This is a stipulation by way of penalty.]

Courts power to grant damages fined

Where the right to recover liquidated damages under section 74 is found to exit no question of ascertaining damages really arises; Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., AIR 1962 SC 1314.

Penalty and liquidated damages

A clause in a contract can be described as penal if the party who has to pay a certain amount of money fails to pay the amount within the time stipulated. In such a situation the other party will be at liberty to recover the entire sum with interest and costs. Such a clause would be penal in character. But if half payment is made within the time stipulated, the other party waves his right to the balance amount; Prithvichand Ramchand Sablok v. S.Y. Shinde, AIR 1993 SC 1934.

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1. Subs. by Act 6 of 1899, sec. 4, for the first paragraph.

2. Subs. by the A.O. 1937, for “Government of India ”.

3. Subs. by the A.O. 1950, for “Provincial Government”.

4. Ins. by Act 6 of 1899, sec. 4(2).

75. Party rightfully rescinding contract, entitled to compensation

A person who rightfully rescinds a contract is entitled to consideration for any damage which he has sustained through the no fulfillment of the contract.

Illustration

A, a singer, contracts with B, the manager of a theatre, to sing at his theatre for two nights in every week during the next two months, and B engages to pay her 100 rupees for each night’s performance. On the sixth night, A wilfully absents herself from the theatre, and B, in consequence, rescinds the contracts. B is entitled to claim compensation for the damage which he has sustained through the non-fulfilment of the contract.

Chapter VII – Sale of Goods

Section 76 to 123 -

Repealed

Chapter VIII – Of indemnity and guarantee

124. “Contract of indemnity” defined

A contract by which one party promises to save the other from loss caused to him by the contract of the promisor himself, or by the conduct of any other person, is called a “contract of indemnity”.

Illustration

A contracts to indemnify B against the consequences of any proceedings which C may take against B in respect of a certain sum of 200 rupees. This is a contract of indemnity.

Idemnity and guarantee

Acknowledgement of debt by principal debtor binds the guarantor in all respects as if he had given express consent; United Commercial Bank v. B. M. Mahadev Babu, AIR 1992 Kant 294.

125. Right of indemnity-holder when sued -

The promisee in a contract of indemnity, acting within the scope of his authority, is entitled to recover from the promisor-

 (1) all damages which he may be compelled to pay in any suit in respect of any matter to which the promise to indemnify applies;

 (2) all costs which he may be compelled to pay in any such suit, if in bringing of defending it, he did not contravene the orders of the promisor, and acted as it would have been prudent for him to act in the absence of any contract of indemnity, or if the promisor authorised him to bring or defend the suit;

 (3) all sums which he may have paid under the terms of any compromise of any such suit, if the compromise was not contract to the orders of the promisor, and was one which it would have been prudent for the promise to make in the absence of any contract of indemnity, or if the promisor authorised him to compromise the suit.

126. “Contract of guarantee”, “surety”, “principal debtor” and “creditor” -

A “contract of guarantee” is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the “surety”, the person in respect of whose default the guarantee is given is called the “principal debtor”, and the person to whom the guarantee is given is called the “creditor”. A guarantee may be either oral or written.

Bank guarantee

Once it becomes apparent that there was no chance to fulfil the conditions in the bank guarantee, invocation of the bank guarantee would not be premature or unjustified; Daewoo Motors India Ltd. v. Union of India, (2003) 4 SCC 690.

It is well settled that bank guarantee is an autonomous contract. It is in common parlance that the issuance of guarantee is what a guarantor creates to discharge liability when the principal debtor fails in his duty and guarantee is in the nature of collateral agreement to answer for the debt; Syndicate Bank v. Vijay Kumar, AIR 1992 SC 1066.

127. Consideration for guarantee

Anything done, or any promise made, for the benefit of the principal debtor, may be a sufficient consideration to the surety for giving the guarantee.

Illustrations

 (a) B requests A to sell and deliver to him goods on credit. A agrees to do so, provided C will guarantee the payment of the price of the goods. C promises to guarantee the payment in consideration of A’s promise to deliver the goods. This is a sufficient consideration for C’s promise.

 (b) A sells and delivers goods to B. C afterwards requests A to forbear to sue B for the debt for a year, and promises that, if he does so, C will pay for them in default of payment by B. A agrees to forbear as requested. This is a sufficient consideration for C’s promise.

 (c) A sells and delivers goods to B. C afterwards, without consideration, agrees to pay for them in default of B. The agreement is void.

128. Surety’s liability

The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract.

Illustration

A guarantees to B the payment of a bill of exchange by C, the acceptor. The bill is dishonoured by C. A is liable, not only for the amount of the bill, but also for any interest and charges which may have become due on it.

General

Contract of guarantee does not provide any contra-note pertaining to the liability of the surety so as to create an exception within the meaning of section 128; Industrial Finance Corporation of India Ltd. v. Cannonore Spinning & Weaving Mills Ltd., (2002) 5 SCC 54.

Limitation

It is a settled law that the creditor would be entitled to adjust from the payment of a sum by a debtor towards the time barred debt from the guarantor’s account. The appellant did not act in violation of any law when he cut the amount from the fixed deposit of the respondent i.e. the surety when the principal debtor failed to pay; Punjab National Bank v. Surendra Prasad Sinha, AIR 1992 SC 1815.

Scope

The clauses of the guarantees executed by the appellant in favour of PICUP clearly show that the liability of the guarantors was to remain unaffected by the failure of PICUP to enforce its mortgage and hypothecation against the assets of the company. There is nothing in the contracts which can in any way be construed as contrary to the joint and several liability created under section 128; Kailash Nath Agarwal v. Pradeshiya Industrial & Investment Corporation of U.P. Ltd., (2003) 4 SCC 305.

The surety has given a continuing guarantee, limited in amount, to secure the floating balance which may from time to time be due from the principal debtor to the creditor, the guarantee is prima facie to be construed as being of part only of the debt. A continuing guarantee may even be for the fixed period. It is well settled that the guarantor cannot be made liable beyond the terms of the agreements; Aditya Naryan Chouresia v. Bank of India, AIR 2000 Pat 222.

Surety may be liable though the principals Contract is void

The Liability of the sureties is co-extensive with that of the principal debtor. Consequently creditor can proceed against the principal debtor or against the sureties, unless it is otherwise provided in the contract. The same should also be the principle with regard to the rights and liabilities between co-sureties as well. A co-surety cannot insist that the creditor should proceed either against the principal debtor or against other sureties before proceeding against him; Kerala State Financial Enterprises Ltd. v. C.J. Thampi, AIR 2000 Ker 36.

129. Continuing guarantee

A guarantee which extends to a series of transaction, is called, a “continuing guarantee”.

Illustrations

(a) A, in consideration that B will employ C in collecting the rents of B’s zamindari, promises B to be responsible, to the amount of 5,000 rupees, for the due collection and payment by C of those rents. This is a continuing guarantee.

 (b) A guarantees payment to B, a tea-dealer, to the amount of £ 100, for any tea he may from time to time supply to C. B supplies C with tea of above the value of £ 100, and C pays B for it. Afterwards, B supplies C with tea of the value of £ 200. C fails to pay. The guarantee given by A was a continuing guarantee, and he is accordingly liable to B to the extent of £ 100.

 (c) A guarantees payment to B of the price of five sacks of flour to be delivered by B to C and to be paid for in a month. B delivers five sacks to C. C pays for them. Afterwards B delivers four sacks to C, which C does not pay for. The guarantee given by A was not a continuing guarantee, and accordingly he is not liable for the price of the four sacks.

130. Revocation of continuing guarantee

A continuing guarantee may at any time be revoked by the surety, as to future transactions, by notice to the creditor.

Illustrations

 (a) A, in consideration of B’s discounting, at, A’s request, bills of exchange for C, guarantees to B, for twelve months, the due payment of all such bills to the extent of 5,000 rupees. B discounts bills for C to the extent of 2,000 rupees. Afterwards, at the end of three months, A revokes the guarantee. This revocation discharges A from all liability to B for any subsequent discount. But A is liable to B for the 2,000 rupees, on default of C.

 (b) A guarantees to B, to the extent of 10,000 rupees, that C shall pay all the bills that B shall draw upon him. B draws upon C, C accepts the bill. A gives notice of revocation. C dishonours the bill at maturity. A is liable upon his guarantee.

131. Revocation of continuing guarantee by surety’ death -

The death of the surety operates, in the absence of any contract to the contrary, as a revocation of ma continuing guarantee, so far as regards future transactions.

132. Liability of two persons, primarily liable, not affected by arrangement between them that one shall be surety on other’s default -

Where two persons contract with third person to undertake a certain liability, and also contract with each other that one of them shall be liable only on the default of the other, the third person not being a party to such contract the liability of each of such two persons to the third person under the first contract is not affected by the existence of the second contract,although such third person may have been aware of its existence.

Illustration

A and B make a joint and several promissory note to C. A makes it, in fact, as surety for B, and C knows this at the time when the note is made. The fact that A, to the knowledge of C, made the note as surety for B, is no answer to a suit by C against A upon the note.

133. Discharge of surety by variance in terms of contract-

Any variance made without the surety’s consent, in the terms of the contract between the principal ¹[debtor] and the creditor, discharges the surety as to transactions subsequent to the variance.

Illustrations

 (a) A becomes surety to C for B’s conduct as manager in C’s bank. Afterwards, B and C contract, without A’s consent, that B’s salary shall be raised, and that he shall become liable for one-fourth of the losses on overdrafts. B allows a customer to over-draw, and the bank loses a sum of money.

A is discharged from his suretyship by the variance made without his consent, and is not liable to make good this loss.

 (b) A guarantees C against the misconduct of B in an office to which B is appointed by C, and of which the duties are defined by an Act of the Legislature. By a subsequent Act, the nature of the office is materially altered. Afterwards, B misconducts himself. A is discharged by the change from future liability under his guarantee, though the misconduct of B is in respect of a duty not affected by the later Act.

 (c) C agrees to appoint B as his clerk to sell goods at a yearly salary, upon A’s becoming surety to C for B’s duly accounting for moneys received by him as such clerk. Afterwards, without A’s knowledge or consent, C and B agree that B should be paid by a commission on the goods sold by him and not by a fixed salary. A is not liable for subsequent misconduct of B.

 (d) A gives to C a continuing guarantee to the extent of 3,000 rupees for any oil supplied by C to B on credit. Afterwards B becomes embarrassed, and, without the knowledge of A, B and C contract that C shall continue to supply B with oil for ready money, and that the payments shall be applied to the then, existing debts between B and C. A is not liable on his guarantee for any goods supplied after this new arrangement.

 (e) C contracts to lend B 5,000 rupees on the 1st March. A guarantees repayment. C pays the 5,000 rupees to B on the 1st January, A is discharged from his liability, as the contract has been varied, inasmuch as C might sue B for the money before the first of March.

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1.Ins. by Act 24 of 1917, sec. 2 and Sch. I.

134. Discharge of surety by release or discharge of principal debtor -

The surety is discharged by any contract between the creditor and the principal debtor, by which the principal debtor is released, or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor.

Illustrations

 (a) A gives a guarantee to C for goods to be supplied by C to B. C supplies goods to B, and afterwards B becomes embarrassed and contracts with his creditors (including C) to assign to them his property in consideration of their releasing him from their demands. Here B is released from his debt by the contract with C, and A is discharged from his suretyship.

 (b) A contracts with B to grow a crop of indigo on A’s land and to deliver it to B at a fixed rate, and C guarantees A’s performance of this contract. B diverts a stream of water which is necessary for irrigation of A’s land, and thereby prevents him from raising the indigo. C is no longer liable on his guarantee.

 (c) A contracts with B for a fixed price to build a house for B within a stipulated time. B supplying the necessary timber. C guarantees A’s performance of the contract. B omits to supply the timber. C is discharged from his suretyship.

135. Discharge of surety when creditor compounds with, gives time to, or agrees not to sue, principal debtor

A contract between the creditor and the principal debtor, by which the creditor make a composition with, or promises to give time, or not to sue, the principal debtor, discharges the surety, unless the surety assents to such contract.

136. Surety not discharged when agreement made with third person to give time to principal debtor

Where a contract to give time to the principal debtor is made by the creditor with a third person, and not with the principal debtor, the surety is not discharged.

Illustration

C, the holder of an overdue bill of exchange drawn by A as surety for B, and accepted by B, contracts with M to give to B. A is not discharged.

137. Creditor’s forbearance to sue does not discharge surety

Mere forbearance on the part of the creditor to sue the principal debtor or to enforce any other remedy against him, dies not, in the absence of any provision in the guarantee to the contrary, discharge the surety.

Illustration

B owes to C a debt guaranteed by A. The debt becomes payable. C does not sue B for a year after the debt has become payable. A is not discharged from his suretyship.

138. Release of one co-surety does not discharge other -

Where there are co-sureties, a release by the creditor of one of them does not discharge the others neither does set free the surety so released from his responsibility to the other sureties.¹

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1.See section 44,supra.

139. Discharge of surety by creditor’s act or omission impairing surety’s eventual remedy -

If the creditor does any act which is inconsistent with the right of the surety, or omits to do any act which his duty to the surety requires him to do, and the eventual remedy of the surety himself against the principal debtor is thereby impaired, the surety is discharged.

Illustrations

 (a) B contracts to build a ship for C for a given sum, to be paid by instalments as the work reaches certain stages. A becomes surety to C for B’s due performance of the contract. C, without the knowledge of A, prepays to B the last two instalments. A is discharged by this prepayment.

(b) C lends money to B on the security of a joint and several promissory note made in C’s favour by B, and by A as surety for B, together with a bill of sale of B’s furniture, which gives power to C to sell the furniture, and apply the proceeds in discharge of the note. Subsequently, C sells the furniture, but, owing to his misconduct and wilful negligence, only a small price is realized. A is discharged from liability on the note.

 (c) A puts M as apprentice to B, and gives a guarantee to B for M’s fidelity. B promises on his part that he will at least once a month, see M make up the cash. B omits to see this done as promised, and M embezzles. A is not liable to B on his guarantee.

 (a) B contracts to build a ship for C for a given sum, to be paid by instalments as the work reaches certain stages. A becomes surety to C for B’s due performance of the contract. C, without the knowledge of A, prepays to B the last two instalments. A is discharged by this prepayment.

(b) C lends money to B on the security of a joint and several promissory note made in C’s favour by B, and by A as surety for B, together with a bill of sale of B’s furniture, which gives power to C to sell the furniture, and apply the proceeds in discharge of the note. Subsequently, C sells the furniture, but, owing to his misconduct and wilful negligence, only a small price is realized. A is discharged from liability on the note.

 (c) A puts M as apprentice to B, and gives a guarantee to B for M’s fidelity. B promises on his part that he will at least once a month, see M make up the cash. B omits to see this done as promised, and M embezzles. A is not liable to B on his guarantee.

140. Rights of surety on payment or performance -

Where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety upon payment or performance of all that he is liable for, is invested with all the rights which the creditor had against the principal debtor.

A guarantor will get invested with all the rights which the creditor had only “upon payment or performance of all that he is liable for”. A guarantor is liable for any payment or performance of any obligation only to the extent the principal debtor has defaulted; C.K. Aboobacker v. K.P. Ayishu, AIR 2000 Ker 29 (NOC).

141. Surety’s right to benefit of creditor’s securities -

A surety is entitled to the benefit of every security which the creditor has against the principal debtor at the time when the contract of suretyship entered into, whether the surety knows of the existence of such security or not; and if the creditor loses, or without the consent of the existence of such security or not; and if the creditor loses, or without the consent of the surety, parts with such security, the surety, the surety is discharged to the extent of the value of the security.

Illustrations

 (a) C, advances to B, his tenant, 2,000 rupees on the guarantee of A. C has also a further security for the 2,000 rupees by a mortgage of B’s furniture. C, cancels the mortgage. B becomes insolvent and C sues A on his guarantee. A is discharged from liability to the amount of the value of the furniture.

 (b) C, a creditor, whose advance to B is secured by a decree, receives also a guarantee for that advance from A. C afterwards takes B’s goods in execution under the decree, and then, without the knowledge of A, withdraws the execution. A is discharged.

 (c) A, as surety for B, makes a bond jointly with B to C, to secure a loan from C to B. Afterwards, C obtains from B a further security for the same debt. Subsequently, C gives up the further security. A is not discharged.

Meaning of security

Creditor cannot be said to have lost or parted with a security, without consent of the surety, unless there has been some voluntary act by him; Industrial Finance Corporation of India Ltd. v. Cannanore Spinning & Weaving Mills Ltd., (2002) 5 SCC 54.

142. Guarantee obtained by misrepresentation, invalid

Any guarantee which has been obtained by means of misrepresentation made by the creditor, or with his knowledge and assent, concerning a material part of the transaction, is invalid.

143. Guarantee obtained by concealment, invalid

Any guarantee which the creditor has obtained by means of keeping silence as to meterial circumstances, is invalid.

Illustrations

 (a) A engages B as clerk to collect money for him. B fails to account for some of his receipts, and A in consequence calls upon him to furnish security for his duly accounting. C gives his guarantee for B’s duly accounting. A does not acquaint C with B’s previous conduct. B afterwards makes default. The guarantee is invalid.

 (b) A guarantees to C payment for iron to be supplied by him to B to the amount of 2,000 tons. B and C have privately agreed that B should pay five rupees per ton beyond the market price, such excess to be applied in liquidation of an old debt. This agreement is concealed from A. A is not liable as a surety.

144. Guarantee on contract that creditor shall not act on it until co-surety joins -

Where a person gives a guarantee upon a contract that the creditor shall not act upon it until another person has jointed in it as co-surety, the guarantee is not valid that other person does not join.

145. Implied promise to indemnify surety -

In every contract of guarantee there is an implied promise by the principal debtor to indemnify the surety, and the surety is entitled to recover from the principal debtor whatever sum he has rightfully paid under the guarantee, but no sums which he has paid wrongfully.

Illustrations

 (a) B is indebted to C, and A is surety for the debt. C demands payment from A, and on his refusal sues him for the amount. A defends the suit, having reasonable grounds for doing so, but he is compelled to pay the amount of debt with costs. He can recover from B the amount paid by him for costs, as well as the principal debt.

 (b) C lends B a sum of money, and A, at the request of B, accepts a bill of exchange drawn by B upon A to secure the amount. C, the holder of the bill, demands payment of it from A, and, on A’s refusal to pay, sues him upon the bill. A, not having reasonable grounds for so doing, defends the suit, and has to pay the amount of the bill and costs. He can recover from B the amount of the bill, but not the sum paid for costs, as there was no real ground for defending the action.

 (c) A guarantees to C, to the extent of 2,000 rupees, payment for rice to be supplied by C to B. C supplies to B rice to a less amount than 2,000 rupees, but obtains from A payment of the sum of 2,000 rupees in respect of the rice supplied. A cannot recover from B more than the price of the rice actually supplied.

Surety’s right

There is an implied promise by the principal debtor to indemnify the surety and on its basis the latter is entitled to recover from the former whatever sum the latter had rightfully paid under the contract of guarantee; C.K. Aboobacker v. K.P. Ayishu, AIR 2000 Ker 29 (NOC).

146. Co-sureties liable to contribute equally -

Where two or more persons are co-sureties for the same debt or duty, either jointly or severally, and whether under the same or different contract, and whether with or without the knowledge of each other the co-sureties, in the absence of any contract to the contrary, are liable, as between themselves, to pay each an equal share of the whole debt, or of that part of it which remains unpaid by the principal debtor.¹

Illustrations

 (a) A, B and C are sureties to D for the sum of 3,000 rupees lent to E. E makes default in payment. A, B and C are liable, as between themselves, to pay 1,000 rupees each.

 (b) A, B and C are sureties to D for the sum of 1,000 rupees lent to E, and there is a contract between A, B and C that A is to be responsible to the extent of one-quarter, B to the extent of one-quarter, and C to the extent of one-half. E makes default in payment. As between the sureties, A is liable to pay 250 rupees, B 250 rupees, and C 500 rupees.

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1. See section 43, supra.

147. Liability of co-sureties bound in different sums -

Co-sureties who are bound in different sums are liable to pay equally as far as the limits of their respective obligations permit.

Illustrations

(a) A, B and C, as sureties for D, enter into three several bonds, each in a different penalty, namely, A in the penalty of 10,000 rupees, B in that of 20,000 rupees, C in that of 40,000 rupees, conditioned for D’s duly accounting to E. D makes default to the extent of 30,000 rupees. A, B and C are liable to pay 10,000 rupees.

 (b) A, B and C, as sureties for D, enter into three several bonds, each in a different penalty, namely, A in the penalty of 10,000 rupees, B in that of 20,000 rupees, C in that of 40,000 rupees, conditioned for D’s duly accounting to E. D makes default to the extent of 40,000 rupees. A is liable to pay 10,000 rupees, and B and C 15,000 rupees each.

 (c) A, B and C, as sureties for D, enter into three several bonds, each in a different penalty, namely, A in the penalty of 10,000 rupees, B in that of 20,000 rupees, C in that of 40,000 rupees, conditioned for D’s duly accounting to E. D makes default to the extent of 70,000 rupees. A, B and C have to pay the full penalty of his bond.

Chapter IX – Of bailment

148. ‘Bailment’, ‘bailor’ and ‘bailee’ defined.—

A ‘bailment’ is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the ‘bailor’. The person to whom they are delivered is called the ‘bailee’.

Explanation.—If a person is already in possession of the goods of other contracts to hold them as a bailee, he thereby becomes the bailee, and the owner becomes the bailor of such goods, although they may not have been delivered by way of bailment.

Bailment – general

One of the requirements of bailment is delivery of goods to the bailee. Delivery of possession to the bailee is sine qua non of bailment. In order to constitute a bailment change of possession is necessary; Kavita Trehan v. Balsara Hygiene Products Ltd., AIR 1992 Del 103.

149. Delivery to bailee how made -

The delivery to be bailee may be made by doing anything which has the effect of putting the goods in the possession of the intended bailee or of any person authorised to hold them on his behalf.

150. Bailor’s duty to disclose faults in goods bailed -

The bailor is bound to disclose to the bailee faults in the goods bailed, of which the bailor is aware, and which materially interfere with the use of them, or expose the bailee to extraordinary risk; and if he does not make such disclosure, he is responsible for damage arising to the bailee directly from such faults.

Illustrations

 (a) A lends a horse, which he knows to be vicious, to B. He does not disclose the fact that the horse is vicious. The horse runs away. B is thrown and injured. A is responsible to B for damage sustained.

 (b) A hires a carriage of B. The carriage is unsafe, though B is not aware of it, and A is injured. B is responsible to A for the injury.

151. Care to be taken by bailee -

¹151. Care to be taken by bailee.—In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quantity and value as the goods bailed.²

Care required

In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would under similar circumstances; Kavita Trehan v. Balsara Hygiene Products Ltd., AIR 1992 Del 103.

Railway company as bailee

Under section 73 of The Railways Act, the responsibility of railway administration as a carrier and also as a bailee commences from the moment the goods are entrusted to the railway administration for transit to be carried by railway and continues until the goods are unloaded at the destination point. When the responsibility under section 73 of the Railways Act terminates, the responsibility of the railway administration under section 77 of The Railway Act commences; Union of India v. Sattur Nataraja Traders, AIR 1992 Kant 301.

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1. The responsibility of the Trustees of the Port of Madras constituted under the Madras Port Trust Act, 1905 (Madras Act 2 of 1905), in regard to goods has been declared to be that of a bailee under these sections, without the qualifying words “in the absence of any special contract” in section 152, see section 40(1) of that Act.

2. As to railway contracts see the Indian Railways Act, 1890 (9 of 1890), section 72. [Ed. The Indian Railways Act, 1890 (9 of 1890) has been repealed by the Railways Act, 1989 (24 of 1989), sec. 200.] As to the liability of common carriers, see the Carriers Act, 1865 (3 of 1865), section 8.

152. Bailee when not liable for loss, etc, of thing bailed -

¹152. Bailee when not liable for loss, etc., of thing bailed. The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in section 151.

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1. The responsibility of the Trustees of the Port of Madras constituted under the Madras Port Trust Act, 1905 (Madras Act 2 of 1905), in regard to goods has been declared to be that of a bailee under these sections, without the qualifying words “in the absence of any special contract” in section 152, see section 40(1) of that Act

153. Termination of bailment by bailee’s act inconsistent with conditions -

A contract of bailment is voidable at the option of the bailor, if the bailee does any act with regard to the foods bailed, inconsistent with the conditions of the bailment.

Illustration

A lets to B, for hire, a horse for his own riding. B drives the horse in his carriage. This is, at the option of A, a termination of the bailment.

154. Liability of bailee making unauthorised use of goods bailed -

If the bailee makes any use of the goods bailed which is not according to the conditions of the bailment, he is liable to make compensation to the bailor for any damage arising to the goods from or during such use of them.

Illustrations

(a) A lends a horse to B for his own riding only. B allows C, a member of his family, to ride the horse. C rides with care, but the horse accidentally falls and is injured. B is liable to make compensation to A for the injury done to the horse.

 (b) A hires a horse in Calcutta from B expressly to march to Banaras. A rides with due care, but marches to Cuttack instead. The horse accidentally falls and is injured. A is liable to make compensation to B for the injury to the horse.

155. Effect of mixture with bailor’s consent, of his goods with bailee’s -

If the bailee, with the consent of the bailor, mixes the goods of the bailor with his own goods, the bailor and the bailee shall have an interest, in proportion to their respective shares, in the mixture thus produced.

156. Effect of mixture, without bailor’s consent, when the goods can be separated -

If the bailee, without the consent of the bailor, mixes the goods of the bailor with his own goods and the goods can be separated or divided, the property in the goods remains in the parties respectively; but the bailee is bound to be bear the expense of separation or division, and any damage arising from the mixture.

Illustration

A bails 100 bales of cotton marked with a particular mark to B. B, without A’s consent, mixes the 100 bales with other bales of his own, bearing a different mark; A is entitled to have his 100 bales returned, and B is bound to bear all the expense incurred in the separation of the bales, and any other incidental damage.

157. Effect of mixture, without bailor’s consent, when the goods cannot be separated -

If the bailee, without the consent of the bailor, mixes the foods of the bailor with his own goods in such a manner that it is impossible to separate the goods bailed from the other goods, and deliver them back, the bailor is entitled to be compensated by the bailee for the loss of the goods.

Illustration

A bails a barrel of Cape flour worth Rs. 45 to B. B, without A’s consent, mixes the flour with country flour of his own, worth only Rs. 25 a barrel. B must compensate A for the loss of his flour.

158. Repayment, by bailor, of necessary expenses -

Where, by the conditions of the bailment, the goods are to be kept or to be carried, or to have work done upon them by the bailee for the bailor, and the bailee is to receive no remuneration, the bailors shall repay to the bailee the necessary expenses incurred by him for the purpose of the bailment.

159. Restoration of goods lent gratuitously

The lender of a thing for use may at any time require its return, if the loan was gratuitous, even through he lent it for a specified time or purpose. But if, on the faith of such loan made for a specified time or purpose, the borrower has acted in such a manner that the return of the thing lent before the time agreed upon would cause him losses exceeding the benefit actually derived by him from the loan, the lender must, if he compels the return. indemnify the borrower for the amount in which the loss so occasioned exceeds the benefits so derived.

160. Return of goods bailed, on expiration of time or a accomplishment of purpose -

It is the duty of the bailee to return, or deliver according to the bailor’s directions, the goods bailed, without demand, as soon as the time for which they were bailed has expired, or the purpose for which they were bailed has been accomplished.

161. Bailee’s responsibility when goods are not duly returned -

¹161. Bailee’s responsibility when goods are not duly returned.—If by the fault of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time.

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1. Section 161 has been declared to apply to the responsibility of the Trustees of the Port of Madras as to goods in their possession see the Madras Port Trust Act, 1905 (Madras Act 2 of 1905).

2. As to Railway contracts, see the Indian Railways Act, 1890 (9 of 1890), section 72 [Ed. The Indian Railways Act, 1890 (9 of 1980) has been repealed by the Railways Act, 1989 (24 of 1989), sec. 200.]

162. Termination of gratuitous bailment by death -

A gratuitous bailment is terminated by the death either of the bailor or of the bailee.

163. Bailer entitled to increase or profit from goods bailed -

In the absence of any contract to the contrary, the bailee is bound to deliver to the bailer, or according to his directions, any increase or profit which may have accrued from the goods bailed.

Illustration

A leaves a cow in the custody of B to be taken care of. The cow has a calf. B is bound to deliver the calf as well as the cow to A.

164. Bailor’s responsibility to bailee -

The bailor is responsible to the bailee for any loss which the bailee may sustain the reason that the bailor was not entitled to make the bailment, or to receive back the goods, or to give directions, respecting them.

165. Bailment by several joint owners -

If several joint owners of goods bail them, the bailee may deliver them back to, or according to the directions of, one joint owner without the consent of all in the absence of any agreement to the contrary.

166. Bailee not responsible on redelivery to bailor without title -

If the bailor has no title to the goods, and the bailee, in good faith, delivers them back to, or according to the directions of the bailor, the bailee is not responsible to the owner in respect of such delivery.¹

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1. See the Indian Evidence Act, 1872 (1 of 1872), section 117.

167. Right of third person claiming goods bailed -

If a person, other than the bailor, claims goods bailed he may apply to the court to stop delivery of the goods to the bailor, and to decide the title to the goods.

168. Right to finder of goods may sue for specified reward offered -

The finder of goods has no right to use the owner for compensation for trouble and expense, voluntary incurred by him to preserve the goods and to find out the owner; but he may retain the goods again the owner until he receive such compensation; and where the owner has offered a specific required for the return of goods lost, the finder may sue for such reward, and may retain the goods until he received it.

169. When finder of thing commonly on sale may sell it -

When thing which is commonly the subject of sale is lost, if the owner cannot with reasonable diligence be found, or if he refuses upon demand, to pay the lawful charges of the finder, the finder may sell it -

 (1) when the thing is in danger of perishing or of losing the greater part of its value, or

 (2) when the lawful charges of the finder, in respect of the thing found, amount to two-thirds of its value.

170. Bailee’s particular lien -

Where the bailee has, in accordance with the purpose of the bailment, rendered any service involving the exercise of labour or skill in respect of the goods bailed he has in the absence of a contract to the contrary, a right to retain such goods until he receives due remuneration for the services he has rendered in respect of them.

Illustrations

(a) A delivers a rough diamond to B, a jeweller, to be cut and polished, which is accordingly done. B is entitled to retain the stone till he is paid for the services he has rendered.

 (b) A gives cloth to B, a tailor, to make into a coat. B promises A to deliver the coat as soon as it is finished, and to give a three months credit for the price. B is not entitled to retain the coat until he is paid.

171. General lien of bankers, factors, wharfinger, attorneys and policy brokers -

Bankers, factor, wharfingers, attorneys of a High Court and policy brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other person have a right retain, as a security for which balance, goods, bailed to them, unless is an express contract to that effect.¹

Banker’s lien

In mercantile system the Bank has a general lien over all forms of securities or negotiable instruments deposited by or on behalf of the customers in the ordinary course of banking business. The Bank has the liberty to adjust from the proceeds of the two FDR’s towards the dues to the Bank and if there is any balance left that would belong to the depositor; Syndicate Bank v. Vijay Kumar, AIR 1992 SC 1066.

General and particular lien

Section 171 of the Act is clear and categoric that unless a contract to the contrary is established by the plaintiffs, the bank’s right of lien will have to be accepted; Smt. K.S. Nagalambika v. Corporation Bank, AIR 2000 Kant 201.

Workman’s lien for remuneration

The proposition that the bailee, who exercises a lien, is not entitled to charge rent for storage of goods can never apply to a case where the lien is exercised for non-payment of rent or storage charges; Om Shankar Biyani v. Board of Trustees, Port of Calcutta, (2002) 3 SCC 168.

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1. As to lien of an agent, see section 221, infra. As to lien of a Railway Administration, see the Indian Railways Act, 1890 (9 of 1890), section 55. [Ed. The Indian Railways Act, 1890 (9 of 1890) has been repealed by the Railways Act, 1989 (24 of 1989) See. 200. Now see the Railways Act 1989 (24 of 1989, section 83.]

172. “Pledge”, “Pawnor”, and “Pawnee” defined -

The bailment of goods as security for payment of a debt or performance of a promise is called “pledge”. The bailor is in this case called “pawnor”. The bailee is called “pawnee”.

173. Pawnee’s right of retainer -

The pawnee may retain the goods pledged, not only for payment of the debt or the performance of the promise, but for the interests of the debt, and all necessary expenses incurred by him in respect to the possession or for the preservation of the goods pledged.

174. Pawnee not to retain for debt or promise other than for which goods pledged – presumption in case of subsequent advances -

The pawnee shall not, in the absence of a contract to that effect, retain the goods pledged for any debt or promise of other than the debtor promise for which they are pledged; but such contract, in the absence of anything to the contrary, shall be presumed in regard to subsequent advances made by the pawnee.

175. Pawnee’s right as to extraordinary expenses incurred -

The pawnee is entitled to receive from the pawnor extraordinary expenses incurred by him for the preservation of the goods pledged.

176. Pawnee’s right where pawnor makes default -

If the pawnor makes default in payment of the debt, or performance, at the stipulated time, or the promise, in respect of which the goods were pledged, the pawnee may bring as suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale.

If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater that the amount so due, the pawnee shall pay over the surplus to the pawnor.

Scope

It is the discretion of the pawnee to sell the goods in case the pawnor makes default but if the pawnee does not exercise that discretion no blame can be put on the pawenee and pawnee has the right to bring a suit for recovery of the debt and retain the goods pledged as collateral security; State Bank of India v. Smt. Neela Ashok Naik, AIR 2000 Bom 151.

177. Defaulting pawnor’s right to redeem -

If a time is stipulated for the payment of the debt, or performance of the promise, for which the pledged is made, and the pawnor makes default in payment of the debt or performance of the promise at the stipulated time, he may redeem the goods pledged at any subsequent time before the actual sale of them;¹ but he must, on that case, pay, in addition, any expenses which have arisen from his default.

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  1.   For limitation, see the Limitation Act, 1963 (36 of 1963), Schedule 1.

178. Pledge by mercantile agent -

¹[178. Pledge by mercantile agent.—Where a mercantile agent is, with the consent of the owner, in possession of goods or the documents of title to goods, any pledge made by him, when acting in the ordinary course of business of a mercantile agent, shall be as valid as if he were expressly authorised by the owner of the goods to make the same; provided that the pawnee acts in good faith and has not at the time of the pledge notice that the pawnor has not authority to pledge.

Explanation : In this section, the expression “mercantile agent” and “documents of title” shall have the meanings assigned to them in the Indian Sale of Goods Act, 1930 (3 of 1930).

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1.  Sections 178 subs. by Act 4 of 1930, sec. 2, for original section 178.

178A. Pledge by person in possession under voidable contract -

¹[178A. Pledge by person in possession under voidable contract.—When the pawnor has obtained possession of the other goods pledged by him under a contract voidable under section 19 of section 19A, but the contract has not been rescinded at the time of the pledge, the pawnee acquired a goods title to the goods, provided he acts in good faith and without notice of the pawnor’s defect of title.

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 1.  Sections 178A subs. by Act 4 of 1930, sec. 2, for original section 178.

179. Pledge where pawnor has only a limited interest -

Where person pledges goods in which he has only a limited interest, the pledge is valid to the extent of that interest.

180. Suit by bailor or bailee against wrong-doer -

If a third person wrongfully deprives the bailee of the use of possession of goods bailed, or does them any injury, the bailee is entitled to use such remedies as the owner might have used in the like case if no bailment has been made; and either the bailor or the bailee may bring a suit against a third person for such deprivation or injury.

181. Appointment of relief or compensation obtained by such suit –

Whatever is obtained by way of relief of compensation in any such suit shall, as between the bailor and the bailee, be dealt with according to their respective interests.

Chapter X – Agency, Appointment and Authority of Agents

182. “Agent” and “principal” defined -

An “agent” is a person employed to do any act for another, or to represent another in dealing with third persons. The person for whom such act is done, or who is so represented, is called the “principal”.

Principle of agency

D.e.s.u. is not an insurance agent within the meanings of life Insurance Corporation Act, 1956 and the Life Insurance Corporation of India (Agents) Regulations, 1972 but D.E.S.U. is certainly an agent as defined in section 182 of the Act. When there is no insurance agent as defined in the Regulations and the Insurance Act, general principles of the law of agency as contained in the Contract Act are to be applied; D.E.S.U. v. Basanti Devi, AIR 2000 SC 43.

183. Who may employ agent -

Any person who is of the age of majority according to the law to which he is subject, and who is of sound mind, may employ an agent.

Scope

Since the defendant is weak, mentally infirm and cannot comprehend for herself, the power of attorney which authorised to act as agent of the defendant had been exhausted because of the defendant’s incapacity; Mahendra Pratap Singh v. Padam Kumari Devi, AIR 1993 All 182.

184. Who may be an agent -

As between the principal and third persons, any person may become an agent, but no person who is not of the age of majority and sound mind can become an agent, so as to be responsible to the principal according to the provisions in that behalf herein contained.

185. Consideration not necessary.—-

No consideration is necessary to create an agency.

186. Agent’s authority may be expressed or implied.—

The authority of an agent may be expressed or implied.¹

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1. See, however, the Registration Act, 1908 (16 of 1908), section 33; See also the Code of Civil Procedure, 1908 (5 of 1908), Schedule I, Order III, rule 4.

187. Definitions of express and implied -

An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case.

Illustration

A owns a shop in Serampor, living himself in Calcutta, and visiting the shop occasionally. The shop is managed by B, and he is in the habit of ordering goods from C in the name of A for the purposes of the shop, and of paying for them out of A’s funds with A’s knowledge. B has an implied authority from A to order goods from C in the name of A for the purposes of the shop.

188. Extent of agent’s authority –

An agent, having an authority to do an act, has authority do every lawful thing which is necessary in order to do so such act.An agent having an authority to carry on a business, has authority to do every lawful thing necessary for the purpose, or usually done in the course, of conducting such business.

Illustrations

 (a) A is employed by B, residing in London, to recover at Bombay a debt due to B. A may adopt any legal process necessary for the purpose of recovering the debt, and may give a valid discharge for the same.

 (b) A constitutes B his agent to carry on his business of a ship-builder. B may purchase timber and other materials, and hire workmen, for the purpose of carrying on the business.

189. Agent’s authority in an emergency -

An agent has authority, in an emergency, to do all such acts for the purpose of protecting his principal from loss and would be done by a person or ordinary prudence, in his own case, under similar circumstances.

Illustrations

 (a) An agent for sale may have goods repaired if it be necessary.

 (b) A consigns provisions to B at Calcutta, with directions to send them immediately to C, at Cuttack. B may sell the provisions at Calcutta, if they will not bear the journey to Cuttack without spoiling.

190. When agent cannot delegate -

An agent cannot lawful employ another to perform acts which he has expressly or impliedly undertaken to perform personally, unless by the ordinary custom of trade a sub-agent may, or, from the nature or agency, a sub-agent must, be employed.

191. “Sub-agent” defined -

A “sub-agent” is a person employed by, and acting undue the control of, the original agent in the business of the agency.

192. Representation of principal by sub-agent properly appointed -

Where a sub-agent is properly appointed, the principal is, so far as regards third persons, represented by the sub-agent, and is bound by and responsible for his acts, as if he were an agent originally appointed by the principal.

Agent’s responsibility for sub-agent: The agent is responsible to the principal for the acts of the sub-agent.Sub-agent’s responsibility:

The sub-agent is responsible for his acts to the agent, but not to the principal, except in cases of fraud, or wilful wrong.

193. Agent’s responsibility for sub-agent appointed without -

authorityWhere an agent, without having authority to do so, has appointed a person to act as a sub-agent stands towards such person in the relation of a principal to an agent, and is responsible for his act both to the principal and to third person; the principal is not represented, by or responsible for the acts of the person so employed, nor is that person responsible to the principal.

194. Relation between principal and person duly appointed by agent to act in business of agency -

When an agent, holding an express or implied authority to name another person to act for the principal in the business of the agency, has named another person accordingly, such person is not a sub-agent, but an agent of the principal for such part of the business of the agency as is entrusted to him.

Illustrations

(a) A directs B, his solicitor, to sell his estate by auction, and to employ an auctioneer for the purpose. B names C, an auctioneer, to conduct the sale. C is not a sub-agent, but is A’s agent for the conduct of the sale.

 (b) A authorizes B, a merchant in Calcutta, to recover the moneys due to A from C & Co. B instructs D, a solicitor, to take legal proceedings against C & Co. for the recovery of the money. D is not a sub-agent, but is solicitor for A.

195. Agent’s duty in naming such person -

In selecting such agent for his principal, an agent is bound to exercise the same amount of discretion as a man or ordinary prudence would exercise in his own case; and, if he does this, he is not responsible to the principal for the acts of negligence of the agent so selected.

Illustrations

(a) A instructs B, a merchant, to buy a ship for him. B employs a ship-surveyor of good reputation to choose a ship for A. The surveyor makes the choice negligently and the ship turns out to be unseaworthy and is lost. B is not, but the surveyor is, responsible to A.

 (b) A consigns goods to B, a merchant, for sale. B, in due course, employs an auctioneer in good credit to sell the goods of A, and allows the auctioneer to receive the proceeds of the sale. The auctioneer afterwards becomes insolvent without having accounted for the proceeds. B is not responsible to A for the proceeds.

196. Right of person as to acts done forhim without his authority, effect of ratification -

Where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as if they had been performed by his authority.

197. Ratification may be expressed or implied -

Ratification may be expressed or may be implied in the conduct of the person on whose behalf the acts are done.

Illustrations

 (a) A, without authority, buys goods for B. Afterwards B sells them to C on his own account; B’s conduct implies a ratification of the purchase made for him by A.

 (b) A, without B’s authority, lends B’s money to C. Afterwards B accepts interest on the money from C. B’s conduct implies a ratification of the loan.

198. Knowledge requisite for valid ratification -

No valid ratification can be made by a person whose knowledge of the facts of the case is materially defective.

199. Effect of ratifying unauthorized act forming part of a transaction -

A person ratifying any unauthorized act done on his behalf ratifies the whole of the transaction of which such act formed a part.

200. Ratification of unauthorized act cannot injure third person -

An act done by one person on behalf of another, without such other person’s authority, which, if done with authority, would have the effect of subjecting a third person to damages, or of terminating any right or interest of a third person, cannot, by ratification, be made to have such effect.

Illustrations

(a) A, not being authorized thereto by B, demands, on behalf of B, the delivery of a chattel, the property of B, from C who is in possession of it. This demand cannot be ratified by B, so as to make C liable for damages for his refusal to deliver.

 (b) A holds a lease from B, terminable on three months’ notice. C, an unauthorized person, gives notice of termination to A. The notice cannot be ratified by B, so as to be binding on A.

201. Termination of Agency -

An agency is terminated by the principal revoking his authority, or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors.

202. Termination of Agency, where agent has an interest in subject-matter -

Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.

Illustrations

 (a) A gives authority to B to sell A’s land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.

 (b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death.

Agent may enforce Contracts if personally enterested

A power of attorney executed in favour of an agent recording or recognizing an interest of the Agent/Attorney in the property which is the subject-matter of the Agency, cannot be revoked or terminated, even if the instrument does not state specifically that it is irrevocable, as then it would be a power coupled with an interest but a power of attorney simplicitor which merely authorised an agent to do certain acts in the name of or on behalf of the executant at any time in spite of the instrument that power of attorney be revoked or cancelled by the executant at any time in spite of the instrument stating that the Power of Attorney is irrevocable; Corporation Bank, Bangalore v. Lalitha H. Holla, AIR 1994 Kant 133.

203. When principal may revoke agent’s authority -

The principal may, save as is otherwise provided by the last preceding section, revoke the authority given to his agent at any time before the authority has been exercised so as to bind the principal.

204. Revocation where authority has been partly exercised -

The principal cannot revoke the authority given to his agent after the authority has been partly exercised, so far as regards such acts and obligations as arise from acts already done in the agency.

Illustrations

(a) A authorizes B to buy 1,000 bales of cotton on account of A and to pay for it out of A’s moneys remaining in B’s hands. B buys 1,000 bales of cotton in his own name, so as to make himself personally liable for the price. A cannot revoke B’s authroty so far as regards payment for the cotton.

(b) A authorizes B to buy 1,000 bales of cotton on account of A, and to pay for it out of A’s money remaining in B’s hands. B buys 1,000 bales of cotton in A’s name, and so as not to render himself personally liable for the price. A can revoke B’s authority to pay for the cotton.

205. Compensation for revocation by principal, or renunciation by agent -

Where there is an express or implied contract that the agency should be continued for any period of time, the principal must make compensation to the agent, or the agent to the principal, as the case may be, for any previous revocation or renunciation of the agency without sufficient cause.

206. Notice of revocation or renunciation -

Reasonable notice must be given of such revocation or renunciation; otherwise the damage thereby resulting to the principal or the agent, as the case may be, must be made good to the one by the other.

207. Revocation and Renunciation may be expressed or implied -

Revocation and renunciation may be expressed or may be implied in the conduct of the principal or agent respectively.

Illustration

A empowers B to let A’s house. Afterwards A lets it himself. This is an implied revocation of B’s authority.

208. When termination of agent’s authority takes effect as to agent, and as to third persons -

The termination of the authority of an agent does not, so far as regards the agent, take effect before it becomes known to him, or, so far as regards third persons, before it becomes known to them.

Illustrations

(a) A directs B to sell goods for him, and agrees to give B five per cent. commission on the price fetched by the goods. A afterwards by letter, revokes B’s authority. B after the letter is sent, but before he receives it, sells the goods for 100 rupees. The sale is binding on A, and B is entitled to five rupees as his commission.

 (b) A, at Madras, by letter directs B to sell for him some cotton lying in a warehouse in Bombay, and afterwards, by letter revokes his authority to sell, and directs B to send the cotton to Madras. B after receiving the second letter, enters into a contract with C, who knows of the first letter, but not of the second for the sale to him of the cotton. C pays B the money, with which B absconds. C’s payment is good as against A.

 (c) A directs B, his agent, to pay certain money to C. A dies, and D takes out probate to his will. B, after A’s death, but before hearing of it, pays the money to C. The payment is good as against D, the executor.

209. Agent’s duty on termination o agency by principal’s death or insanity -

When an agency is terminated by the principal dying or becoming of unsound mind, the agent is bound to take, on behalf of the representatives of his late principal, all reasonable steps for the protection and preservation of the interests entrusted to him.

210. Termination of Sub-agent’s authority -

The termination of the authority of an agent causes the termination (subject to the rules herein contained regarding the termination of an agent’s authority) of the authority of all sub-agents appointed by him.

211. Agent’s duty in conducting principal’s business -

An agent is bound to conduct the business of his principal according to the directions given by the principal, or, in the absence of any such directions, according to the custom which prevails in doing business of the same kind at the place where the agent conducts such business. When the agent acts otherwise, if any loss be sustained, he must make it good to his principal, and, if any profit accrues, he must account for it.

Illustrations

 (a) A, an agent engaged in carrying on for B a business, in which it is the custom to invest from time to time, at interest, the moneys which may be in hand, on its to make such investments. A must make good to B the interest usually obtained by such investments.

 (b) B, a broker in whose business it is not the custom to sell on credit, sells goods of A on credit to C, whose credit at the time was very high. C, before payment, becomes insolvent. B must make good the loss to A.

212. Skill and Diligence required from agent -

An agent is bound to conduct the business of the agency with as much skill as is generally possessed by persons engaged in similar business, unless the principal has notice of his want of skill. The agent is always bound to act with reasonable diligence, and to use such skill as he possesses; and to make compensation to his principal in respect of the direct consequences of his own neglect, want of skill or misconduct, but not in respect of loss or damage which are indirectly or remotely caused by such neglect, want of skill or misconduct.

Illustrations

 (a) A, a merchant in Calcutta, has an agent, B, in London, to whom a sum of money is paid on A’s account, with orders to remit. B retains the money for a considerable time. A, in consequence of not receiving the money, becomes insolvent. B is liable for the money and interest, from the day on which it ought to have been paid, according to the usual rate, and for any further direct loss—as, e.g., by variation of rate of exchange—but not further.

(b) A, an agent for the sale of goods, having authority to sell on credit, sells to B on credit, without making the proper and usual enquiries as to the solvency of B. B at the time of such sale is insolvent. A must make compensation to his principal in respect of any loss thereby sustained.

(c) A, an insurance-broker employed by B to effect an insurance on a ship, omits to see that the usual clauses are inserted in the policy. The ship is afterwards lost. In consequence of the omission of the clauses nothing can be recovered from the underwriters. A is bound to make good the loss to B.

(d) A, a merchant in England, directs B, his agent at Bombay, who accepts the agency, to send him 100 bales of cotton by a certain ship. B, having it in his power to send the cotton, omits to do so. The ship arrives safely in Engalnd. Soon after her arrival the price of cotton rises. B is bound to make good to A the profit which he might have made by the 100 bales of cotton at the time of ship arrived, but not any profit he might have made by the subsequent rise.

General

The defendant/respondent had grossly misconducted himself firstly when he communicated to the appellant that the goods had been purchased at the rate of Rs. 36 per pound when they had not been and further stating that these goods would be despatched as soon as the transporters strike was over. The defendant later on informed the appellant that the goods could not be purchased as their delivery was dependant on yet another party. The defendant had misinformed his principal and his misconduct squarely comes within section 212 of Contract Act; and the defendant must bear the brunt to pay the damages; Jayabharathi Corporation v. SV P.N. SN Rajasekara Nadar, AIR 1992 SC 596.

213. Agent’s accounts -

An agent is bound to render proper accounts to his principal on demand.

214. Agent’s duty of communicate with principal -

It is the duty of an agent, in cases of difficulty, to use all reasonable diligence in communicating with his principal, and in seeking to obtain his instructions.

215. Right to principal when agent deals, on his own account, in business of agency without principal’s consent -

If an agent deals on his own account in the business of the agency, without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him.

Illustrations

(a) A directs B to sell A’s estate. B buys the estate for himself in the name of C. A, on discovering that B has bought the estate for himself, may repudiate the sale, if he can show that B has dishonestly concealed any material fact, or that the sale has been disadvantageous to him.

 (b) A directs B to sell A’s estate. B, on looking over the estate before selling it, finds a mine on the estate which is unknown to A. B informs A that he wishes to buy the estate for himself, but conceals the discovery of the mine. A allows B to buy, in ignorance of the existence of the mine. A, on discovering that B knew of the mine at the time he bought the estate, may either repudiate or adopt the sale at his option.

216. Principal’s right to benefit gained by agent dealing on his own account in business of agency -

If an agent, without the knowledge of his principal, deals in the business 6f the agency on his own account instead of on account of his principal, the principal is entitled to claim from the agent any benefit which may have resulted to him from the transaction.

Illustration

A directs B, his agent, to buy a certain house for him. B tells A it cannot be bought, and buys the house for himself. A may, on discovering that B has bought the house, compel him to sell it to A at the price he gave for it.

217. Agent’s right of retainer out of sums received on principal’s account -

An agent may retain, out of any sums received on account of the principal in the business of the agency, all moneys due to himself in respect of advances made or expenses properly incurred by him in conducting such business, and also such remuneration as may be payable to him for acting as agent.

218 . Agent’s duty to pay sums received for principal -

Subject to such deductions, the agent is bound to pay to his principal all sums received on his account.

219. When agent’s remuneration becomes due -

In the absence of any special contract, payment for the performance of any act is not due to the agent until the completion of such act; but an agent may detain moneys received by him on account of goods sold, although the whole of the goods consigned to him for sale may not have been sold, or although the sale may not be actually complete.

220. Agent not entitled to remuneration for business misconducted

An agent who is guilty of misconduct in the business of the agency is not entitled to any remuneration in respect of that part of the business which he has misconducted.

Illustrations

(a) A employs B to recover 1,00,000 rupees from C, and to lay it out on good security, B recovers the 1,00,000 rupees and lays out 90,000 rupees on good security, but lays out 10,000 rupees on security which he ought to have known to be bad, whereby A loses 2,000 rupees. B is entitled to remuneration for recovering the 1,00,000 rupees and for investing the 90,000 rupees. He is not entitled to any remuneration for investing the 10,000 rupees, and he must make good the 2,000 rupees to B.

 (b) A employs B to recover 1,000 rupees from C. Through B’s misconduct the money is not recovered. B is entitled to no remuneration for his services, and must make good the loss.

221. Agent’s lien on principal property

In the absence of any contract to the contrary, an agent is entitled to retain goods, papers, and other property, whether movable or immovable, of the principal received by him, until the amount due to himself for commission, disbursements and services in respect of the same has been paid or accounted for to him.

General

The lien of an agent extends only to the retention of the property till his dues are paid. At common law a legal lien merely confers on the holder of the articles in respect of which it was claimed, a passive right to detain the articles until the debt is paid. Such a lien cannot be enforced by sale of the goods; Kavita Trehan v. Balsara Hygiene Products Ltd., AIR 1992 Del 103.

222. Agent to be indemnified against consequences of lawful acts

The employer of an agent is bound to indemnify him against the consequences of all lawful acts done by such agent in exercise of the authority conferred upon him.

Illustrations

 (a) B, at Singapure, under instructions from A of Calcutta, contracts with C to deliver certain goods to him. A does not send the goods to B, and C sues B for breach of contract. B informs A of the suit, and A authorises him to defend the suit. B defends the suit, and is compelled to pay damages and costs, and incurs expenses. A is liable to B for such damages, costs and expenses.

 (b) B, a broker at Calcutta, by the orders of A, a merchant there, contracts with C for the purchase of 10 casks of oil for A. Afterwards A refuses to receive the oil, and C sues B. B informs A, who repudiates the contract altogether. B defends, but unsuccessfully, and has to pay damages and costs and incurs expenses. A is liable to B for such damages, costs and expenses.

223. Agent to be indemnified against consequences of acts done in good faith

Where one person employs another to do an act, and the agent does the act in good faith, the employer is liable to indemnify the agent against the consequences of that act, though it causes an injury to the rights of third persons

Illustrations

(a) A, a decree-holder and entitled to execution of B’s goods requires the officer of the Court to seize certain goods, representing them to be the goods of B. The officer seizes the goods, and is sued by C, the true owner of the goods. A is liable to indemnify the officer for the sum which he is compelled to pay to C, in consequence of obeying A’s directions.

 (b) B, at the request of A, sells goods in the possession of A, but which A had no right to dispose of. B does not know this, and hands over the proceeds of the sale to A. Afterwards C, the true owner of the goods, sues B and recovers the value of the goods and costs. A is liable to indemnify B for what he has been compelled to pay to C, and for B’s own expenses.

224. Non-Liability of employer of agent to do a Criminal Act -

Where one person employs another to do an act which is criminal, the employer is not liable to the agent, either upon an express or an implied promise, to indemnify him against the consequences of that act.

Illustrations

(a) A employs B to beat C, and agrees to indemnify him against all consequences of the act. B thereupon beats C, and has to pay damages to C for so doing. A is not liable to indemnify B for those damages.

(b) B, the proprietor of a newspaper, publishes, at A’s request, a libel upon C in the paper, and A agrees to indemnify B against the consequences of the publication, and all costs and damages of any action in respect thereof. B is sued by C and has to pay damages, and also incurs expenses. A is not liable to B upon the indemnity.

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 1.See section 24, supra.

225. Compensation to agent for injury caused by principal’s neglect

The principal must make compensation to his agent in respect of injury ¹caused to such agent by the principal’s neglect or want of skill.

Illustration

A employs B as a bricklayer in building a house, and puts up the scaffolding himself. The scaffolding is unskilfully put up, and B is in consequence hurt. A must make compensation to B.

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1.Cf.the Indian Fatal Accidents Act, 1855 (13 of 1855).

226. Enforcement and Consequences of agent’s contracts -

Contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner, and will have the same legal consequences, as if the contracts had been entered into and the acts done by the principal in person.

Illustrations

(a) A buys goods from B, knowing that he is an agent for their sale, but not knowing who is the principal. B’s principal is the person entitled to claim from A the price of the goods, and A cannot, in a suit by the principal, set-off against that claim a debt due to himself from B.

 (b) A, being B’s agent, with authority to receive money on his behalf, receives from C a sum of money due to B. C is discharged of his obligation to pay the sum in question to B.

227. Principal how far bound, when agent exceeds authority

When an agent does more than he is authorised to do, and when the part of what he does, which is within his authority, can be separated from the part which is beyond his authority, so much only of what he does as is within his authority is binding as between him and his principal.

Illustration

A, being owner of a ship and cargo, authorizes B to procure an insurance for 4,000 rupees on the ship. B procures a policy for 4,000 rupees on the ship, and another for the like sum on the cargo. A is bound to pay the premium for the policy on the ship, but not the premium for the policy on the cargo.

228. Principal not bound when excess of agent’s authority is not separable

Where an agent does more than he is authorised to do, and what he does beyond the scope of his authority cannot be separated from what is within it, the principal is not bound to recognise the transaction.

Illustration

A, authorizes B to buy 500 sheep for him. B buys 500 sheep and 200 lambs for one sum of 6,000 rupees. A may repudiate the whole transaction.

229. Consequences of notice given to agent

Any notice given to or information obtained by the agent, provided it be given or obtained in the course of the business transacted by him for the principal, shall, as between the principal and third parties, have the same legal consequence as if it had been given to or obtained by the principal.

Illustrations

(a) A is employed by B to buy from C certain goods, of which C is the apparent owner, and buys them accordingly. In the course of the treaty for the sale, A learns that the goods really belonged to D, but B is ignorant of that fact. B is not entitled to set-off a debt owing to him from C against the price of the goods.

 (b) A is employed by B to buy from C goods of which C is the apparent owner. A was, before he was so employed, a servant of C, and then learnt that the goods really belonged to D, but B is ignorant of that fact. In spite of the knowledge of his agent, B may set-off against the price of the goods a debt owing to him from C.

230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principal

In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.

PRESUMPTION OF CONTRACT TO THE CONTRARY. 

Such a contract shall be presumed to exist in the following cases :-

 (1) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;

 (2) where the agent does not disclose the name of his principal; and

 (3) where the principal, though disclosed, cannot be sued.

When agent can be sued

Before the agent can be sued it must be pleaded and shown that the principal is undisclosed and the contract, the breach of which is sued on was entered into by the agent as having contracted personally. Where the contract is entered into by agent contracting on behalf of a foreign principal who is named and disclosed, the agent can not be sued personally nor made personally liable; Midland Overseas v. “CMBT Tana”, AIR 1999 Bom 401.

231. Rights of Parties to a contract made by agent not disclosed

If an agent makes a contract with a person who neither knows, nor has reason to suspect, that he is an agent, his principal may require the performance of the contract; but the other contracting party has, as against the principal, the same rights as he would have had as against the agent if the agent had been the principal. If the principal discloses himself before the contract is completed, the other contracting party may refuse to fulfil the contract, if he can show that, if he had known who was the principal in the contract, or if he had known that the agent was not a principal, he would not have entered into the contract.

232. Performance of contract with agent supposed to be principal

Where one man makes a contract with another, neither knowing nor having reasonable ground to suspect that the other is an agent, the principal, if he requires the performance of the contract, can only obtain such performance subject to the rights and obligations subsisting between the agent and the other party to the contract.

Illustration

A, who owes 500 rupees to B, sells 1,000 rupees worth of rice to B. A is acting as agent for C in the transaction, but B has no knowledge nor reasonable ground of suspicion that such is the case. C cannot compel B to take the rice without allowing him to set-off A’s debt.

233. Right of person dealing with agent personally liable

In cases where the agent is personally liable, a person dealing with him may hold either him or his principal, or both of them, liable.

Illustrations

A enters into a contract with B to sell him 100 bales of cotton, and afterwards discovers that B was acting as agent for C. A may sue either B or C, or both, for the price of the cotton.

234. Consequence of Inducing agent or principal to act on belief that principal or agent will be held exclusively liable

When a person who has made a contract with an agent induces the agent to act upon the belief that’ the Principal only will be held liable, or induces the principal to act upon the belief that the agent only will be held liable, he cannot afterwards hold liable the agent or principal respectively.

235. Liability of pretended agent

A person untruly representing himself to be the authorised agent of another, and thereby inducing a third person to deal with him as such agent, is liable, if his alleged employer does not ratify his acts, to make compensation to the other in respect of any loss or damage which he has incurred by so dealing.

236. Person falsely contracting as agent not entitled to performance

A person with whom a contract has been entered into in the character of agent, is not entitled to require the performance of it if he was in reality acting, not as agent, but on his own account.

237. Liability of principal inducing belief that agent’s unauthorized acts were authorized

When an agent has, without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations, if he has by his words or conduct induced such third persons to believe that such act and obligations were within the scope of the agent’s authority.

Illustrations

 (a) A consigns goods to B for sale, and gives him instructions not to sell under a fixed price. C, being ignorant of B’s instructions, enters into a contract with B to buy the goods at a price lower than the reserved price. A is bound by the contract.

 (b) A entrusts B with negotiable instruments endorsed in blank. B sells them to C in violation of private orders from A. The sale is good.

238. Effect, on agreement, of misrepresentation or fraud by agent

Misrepresentations made, or frauds committed, by agents acting in the course of their business for their principals, have the same effect on agreements made by such agents as if such misrepresentations or frauds had been made or committed, by the principals; but misrepresentations made, or frauds, committed, by agents, in matters which do not fall within their authority, do not affect their principals.

Illustrations

(a) A, being B’s agent for the sale of goods, induces C to buy them by a misrepresentation, which he was not authorized by B to make. The contract is voidable, as between B and C, at the option of C.

 (b) A, the captain of B’s ship, signs bills of lading without having received on board the goods mentioned therein. The bills of lading are void as between B and the pretended consignor.

Chapter XI – Of Partnership

239-266 of Partnership

 [Rep. By the Indian Partnership Act, 1932 (9 OF 1932), SEC. 73 And Sch. II].

Sch. I .THE SCHEDULE Enactments repealed

 [Repealed by the Repealing and Amending Act, 1914 (10 of 1914) sec. 3 and Sch. II.

Hindu Succession Act

November 30, 2014

Section 1. Short title and extent

(1) This Act may be called the Hindu Succession Act  1956.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

Section 2. Application of Act

(1) This Act applies-

(a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Parathana or Arya Samaj.

(b) to any person who is Buddhist, Jaina or Sikh by religion, and

(c) to any of other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such persons would not have been governed by the Hindu law or by custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion.

(b) any child, legitimate or illegitimate one of whose parent is a Hindu, Buddhists, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged.

(c) any person who is convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, through not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained inn this section.

STATE AMENDMENTS

Pondicherry:

In section 2, after sub-section (2) insert—

“(2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the Renouncants of the Union territory of Pondicherry.”

[Regulation 7 of 1963, sec. 3 and First Sch. (w.e.f. 1-10-1963).]

Section 3. Definitions and interpretations

(1) In this Act, unless the context otherwise requires,-

(a) “agnate”- one person is said to be an “agnate” of another if the two are related by blood or adoption wholly through males.

(b) “Aliyasantana law” means the system of law applicable to persons who, if this Act had not been passed, would have been governed by the Madras Aliyasantana Act, 1949, or by the customary Aliyasantana law with respect to the matter for which provision is made in this Act.

(c) “cognate”- one person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males.

(d) the expression “custom” and “usage” signify and rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy, and

Provided further that, in the case of a rule applicable only to a family it has not been discontinued by the family,

(e) “full blood”, “half blood” and ‘uterine blood”-

(i) two persons are said to be related to each other by full blood when they are descented from a common ancestor by the same wife, and by half blood when they are descended from a common ancestor but, by different wives.

(ii) two persons are said to be related to each other by uterine blood when they are descended from a common ancestres but by different husbands.

Explanation.- In this clause “ancestor” includes the father and “ancestress” the mother,

(f) ‘heir” means any person, male or female, who is entitled to succeed to the property of an intestate under this Act:

(g) “intestate” –a person is deemed to die intestate in respect of property of which he or she has not made at testamentary disposition capable of taking effect,

(h) “marumakkattayam law” means the system of law applicable to persons.-

(a) who, if this Act had not been passed would have been governed by the Madras Marumakkattayam Act, 1932, the Travancore Nayar Act, the Travancore Ezhava Act, the Travancore Nanjinad Vellala Act, the Travacore Kshatriya Act, the Travancore Krishnanavaka Marumakkathayee Act, the Cochin Marumakkathayam Act, or the Cochin Nayar Act with respect to the matters for which provision is made in this Act, or

(b) who belong to any community, the members of which are largely domiciled in the State of Travancore-Cochin or Madras ¹(as it existed immediately before the 1st November, 1956) and who, if this Act had not been passed, would have been governed with respect to the matters for which provision is made in this Act by any system of inheritance in which descent is traced through the female line.

But does not include the aliyasantana law,

(i) “Nambudri law” means the system of law applicable to persons who, if this Act had not been passed, would have been governed by the Madras Nambudri Act, 1932, the Cochin Nambudri Act, or the Travancore Malayala Brahmin Act with respect to the matters for which provision is made in this Act.

(j) “related” means related by legitimate kinship :

Provided that illegitimate children shall be deemed to be related to their mothers and to one another, and their legitimate descendants shall be deemed to be related to them and to one another , and any word expressing relationship or denoting a relative shall be construed accordingly.

(2) In this Act, unless the context otherwise requires, words importing the masculine gender shall not be taken to include females.

———

1. Ins. by the Adaptation of Laws (No. 3) Order, 1956.

Section 4. Over-riding effect of Act

(1) Save as otherwise expressly provided in this Act,-

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.

¹[***]

——————————————-

1. Sub-section (2) omitted by Act 39 of 2005, sec. 2 (w.e.f. 9-9-2005). Sub-section (2), before omission, stood as under:

“(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.”

Chapter II – Intestate Succession

Section 5. Act not to apply to certain properties

This Act shall not apply to-

(i) any property succession to which is regulated by the Indian Succession Act, 1925 by reason of the provisions contained in section 21 of the Special Marriage Act, 1954.

(ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the term of any enactment passed before the commencement of this Act.

(iii) the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the Palace Administration Board by reason of the powers conferred by Proclamation (IX of 1124) dated 29th June, 1949, promulgated by the Maharaja of Cochin.

State amendment

(a) Kerala State has passed an Act for the partition of the valiamma Thampuran Kovilegam Estate and the Palace Fund: Kerala Act 16 of 1961, sec. 10.

“10. Amendment of the Hindu Succession Act, 1956.—Clause (iii) of section 5 of the Hindu Succession Act, 1956 (Central Act 30 of 1956), shall be omitted with effect on and from the date of execution of the partition deed under section 6.”

Section 6. Devolution of interest of coparcenary property

¹[6. Devolution of interest in coparcenary property. —(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub­-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre­-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great­-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect—

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]

Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005]

Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.

State Amendment

Sections 6A to 6C

Karnataka:

After section 6 the following sections shall be inserted, namely:—

“6A. Equal rights to daugher in co-parcenary property.— Notwithstanding anything contained in section 6 of this Act—

(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:

Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:

Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;

(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.

6B. Interest to devolve by survivorship on death.— When a female Hindu dies after the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990, having at the time of her death an interest in a Mitakshara co-parcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act:

Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara co-parcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship.

Explanations.— (1) For the purposes of this section the interest of female Hindu Mitakshara co-parcenary shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not.

(2) Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased had separated himself or herself from the co-parcenary, or any of his or her heirs to claim on intestacy a share in the interest referred to therein.

6C. Preferential right to acquire property in certain cases.— (1) Where, after the commencement of Hindu Succession (Karnataka Amendment) Act, 1990 an interest in any immovable property of an intestate or in any business carried by him or her, whether solely or in conjunction with others devolves under sections 6A or 6B upon two or more heirs and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under sub-section (1) shall in the absence of any agreement between the parties, be determined by the court, on application, being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application.

(3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

Explanation.— In this section ‘court’ means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may by notification in the Official Gazette specify in this behalf.

[Vide Karnataka Act 23 of 1994, sec. 2 (w.e.f. 30-7-1994).]

———

1. Subs. by Act 39 of 2005, sec. 3, for section 6 (w.e.f. 9-9-2005). Section 6, before substitution, stood as under:

“6. Devolution of interest in coparcenary property.—When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1.—For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

Explanation 2.—Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”.

* Date of commencement 9-9-2005.

Section 7. Devolution of interest in the property of a tarwad, tavazhi, kutumba, kavaru or illom

(1) When a Hindu to whom the marumakkattayam or nambudri law would have applied if this Act had not been passed dies after the commencement of this Act, haing at the time of his or her death an interest in the property of a tarwad, tavazhi or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be , under this Act and not according to the marumakkattayam or nambudri law.

Explanation.- For the purpose of this sub-section, the interest of a Hindu in the property of a tarward, tavashi or illom shall be deemed to be the share in the property of the tarward, tavazhi or illom, a the case may be, that would have fallen to him or her if a partition of that property per capital had been made immediately before his or her death among all the members of tarwad, tavashi or illom, a the case may be, then living, whether he or she was entitled to claim such partition or not under the marumakkattayam or nambudri law applicable to him or her, and such share shall be deemed to have been allotted to him or her absolutely.

(2) When a Hindu to whom the aliyasantana law would have applied if this Act had not been passed, dies after the commencement of this Act, having at the time of his or her death an undivided interest in the property of a kutumba or kavaru, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the aliyasantana law.

Explanation.- For the purpose of this sub-section, the interest of a Hindu in the property of kutumba or kavaru shall be deemed to be the share in the property of the kutumba or kavaru as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the kutumba or kavaru, as the case may be, then living, whether he or she was entitled to claim such partition or not under the aliyasantana law, and such share shall be deemed to have been allotted to him or her absolutely.

(3) Notwithstanding anything contained in sub-section (1), when a sthananmdar dies after the commencement of this Act, sthanama property held by him shall devolve upon the members of the family to which the sthanamdar belonged and the heirs of the sthanamdar belonged and the heirs of the sthanamdar as if the sthanam property had been per capita immediately before the death of the sthanamdar among himself and the all the members of his family then living, and the shares falling to the members of his family and heirs of the sthanamdar shall be held by them as their separate property.

Explanation.- For the purposes of this sub-section, the family of a sthanamdar shall include every, branch of that family, whether divided or undivided, the male members of which would have been entitled by any custom or usage to succeed to the position of sthanamdar if this Act had not been passed.

State Amendment

Kerala:

In section 7, in sub-section (3)—

(a) between the words “him” and “shall”, the words “or her”, between the words “himself” and “and”, the words “or herself” and between the words “his” and “family” in the two places where they occur the words “or her” shall be respectively inserted;

(b) in the e xplanation , the word “male” shall be omitted;

(c) the existing Explanation shall be numbered as Explanation I and the following Explanation shall be added, namely:—

“Explanation II.— The devolution of Sthanam properties under sub-section (3) and their division among the members of the family and heirs shall not be deemed to have conferred upon them in respect of immovable properties any higher rights than the sthanamdar regarding eviction or otherwise as against tenants who were holding such properties under the sthani .”

[Vide Kerala Act 28 of 1958, sec. 27 (w.e.f. 18-5-1958).]

Section 8. General rules of succession in the case of males

The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-

(a) firstly, upon the heirs, being the relatives specified in class 1 of the Schedule.

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule.

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased, and

(d) lastly, if there is no agnate, then upon the cognate of the deceased.

Section 9. Order of succession among heirs in the Schedule

Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs, those in the first entry in class II shall be preferred to those in the second entry, those in the second entry shall be preferred to those in the third entry, and so on in succession.

Section 10. Distribution of property among heirs in class 1 of the Schedule

The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:-

Rule1.- The intestate’s widow, or if there are more widow than one, all the widows together, shall take one share.

Rule 2.- The surviving sons and daughter and the mother of the intestate shall each take one share.

Rule 3.- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.

Rule 4.- The distribution of the share referred to in Rule 3-

(i) among the heirs in the branch of the pre-deceased son shall be son made that his widow (or widows together) and the surviving sons and daughters get equal portions, and the branch of his pre-deceased sons gets the same portion.

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.

Section 11. Distributions of property among heirs in class II of the Schedule

The property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they share equally.

Section 12. Order of succession among agnates and cognates

The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder:

Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is preferred.

Rule 2.- Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent.

Rule 3.- Where neither heirs is entitled to be preferred to the other under

Rule 1 or Rule 2 they take simultaneously.

Section 13. Computation of degrees

(1) For the purposes of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case may be.

(2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.

(3) Every generation constitutes a degree either ascending or descending.

Section 14. Property of a female Hindu to be her absolute Property

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.- In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of arrears of maintenance, or by gift from any person, whether a relative or note, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Section 15. General rules of succession in the case of female Hindus

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.

(b) secondly, upon the heirs of the husband.

(c) thirdly, upon the heirs of the father, and

(d) fourthly, upon the heirs of the father, and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1),-

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father, and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter ) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

Section 16. Order of succession and manner of distribution among heirs of a female Hindu

The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate property among those heirs shall take place according to the following rules, namely:-

Rule 1 .- Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously.

Rule 2.- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate’ death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death.

Rule 3.—The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.

Section 17. Special provisions respecting persons governed by marumakkattayam and aliyyasantana laws

The provisions of sections, 8,10, 15 and 23 shall have effect in relation to persons who would have been governed by the marumakkattayam law or aliyasantana law if this Act had not been passed as if-

(i) for such clauses (c) and (d) of section 8, the following had been substituted, namely :- ” (c) thirdly, the there is no heirs of any of the two classes, then upon his relatives, whether agnates or cognates”.

(ii) for clauses (a) to (e) of sub-section (1) of section 15, the following had been substituted, namely:-

“(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the mother.

(b) secondly, upon the father and the husband.

(c) secondly, upon the father and the husband.

(d) fourthly, upon the heirs of the father, and

(e) lastly, upon the heirs of the husband”.

(iii) clause (a) of sub-section (2) of section 15 had been omitted.

(iv) section 23 had been omitted

Section 18. Full blood preferred to half blood

Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.

Section 19. Mode of succession of two or more heirs

If two or more heirs succeed together to the property of an intestate, they shall take the property:-

(a) save as otherwise expressly provided in this Act, per capita and not per stripes, and

(b) as tenants-in common and not as joint tenants.

Section 20. Right of child in womb

A child who was in the womb at the time of the death of an intestate and who is subsequently born alive have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such as case with effect from the date of the death of the intestate.

Section 21. Presumption in cases of simultaneous deaths

Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder.

Section 22. Preferential right to acquire property in certain cases

(1) Where, after the commencement of this Act, interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolve upon two or more heirs specified in class 1 of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the Court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.

(3) If there are two or more heirs specified in class 1 of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

Explanation.- In this section, ‘court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.

Section 23. Special provision respecting dwelling houses

¹[23. Special provision respecting dwelling houses. —[ Rep. by the Hindu Succession (Amendment) Act, 2005 (39 of 2005), sec. 4 (w.e.f. 9-9-2005) .]]

Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005]

Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.

——-

1. Section 23, before repeal by Act 39 of 2005, stood as under:

“23. Special provision respecting dwelling houses. —Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:

Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.”

Section 24. Certain widows re-marrying may not inherit as widows

¹[24. Certain widows re-marrying may not inherit as widows. —[ Rep. by the Hindu Succession (Amendment) Act, 2005 (39 of 2005), sec. 5 (w.e.f. 9-9-2005) .]]

——-

1. Section 24, before repeal by Act 39 of 2005, stood as under:

“24. Certain widows re-marrying may not inherit as widows. —Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-married.”

Section 25. Murderer disqualified

A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.

Section 26. Convert’s descendants disqualified

Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens.

Section 27. Succession when heir disqualified

If any person is disqualified from succeeding to any property on the ground of any disease, defect r deformity, as save as provided in this Act, on any other ground whatsoever.

Section 28. Disease, defect, etc. not to disqualify

No person shall be disqualified form succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any other ground whatsoever.

Section 29. Failure of heirs

If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the government; and the government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.

State Amendments

Chapter IIA

Andhra Pradesh:

After Chapter II, insert the following Chapter, namely:—

“Chapter IIA

Succession by survivorship

29A. Equal rights to daughter in coparcenary property.— Notwithstanding anything contained in section 6 of this Act—

(i) in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth, become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(ii) at a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:

Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter:

Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(iv) Nothing in clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986.

29B. Interest to devolve by survivorship on death.— When a female Hindu dies after the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986 having at the time of her death an interest in a Mitakshara coparcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be, under this Act and not by survivorship.

Explanation I .—For the purposes of this section the interest of a female Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death irrespective of whether she was entitled to claim partition or not.

Explanation II .—Nothing contained in the proviso this section shall be construed as enabling a person who before the death of the deceased, had separated himself or herself from the coparcenary or any of his or her heirs to claim on intestacy a share in the interest referred to therein.

29C. Preferential right to acquire property in certain cases.— (1) Where, after the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986 an interest in any immovable property of an intestate or in any business carried on by him or her, whether solely or in conjunction with others, devolves under section 29A or section 29B upon two or more heirs, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made toit in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application.

(3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

Explanation. —In his section ‘court’ means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Andhra Pradesh Gazette, specify in this behalf.”

[Vide Andhra Pradesh Act 13 of 1986, sec. 2 (w.r.e.f. 5-9-1985).]

Maharashtra:

After Chapter II, insert the following Chapter, namely:—

“CHAPTER IIA

SUCCESSION BY SURVIVORSHIP

29A. Equal rights of daughter in coparcenary property.— Notwithstanding anything contained in section 6 of this Act—

(i) in a joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall, by birth, become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(ii) at a partition in a joint Hindu family referred to in clause (i), the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:

Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter:

Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994;

(v) nothing in clause (ii) shall apply to a partition which has been effected before the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994;

29B. Interest to devolve by survivorship on death.— When a female Hindu dies after the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994, having, at the time of her death, an interest in a Mitakshara coparcenary property by virtue of the provisions of section 29A, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation I.—For the purposes of this section, the interest of a female Hindu in Mitakshara coparcener property shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not.

Explanation II.—Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased, had separated himself or herself from the coparcenary or any of his or her heirs to claim on intestacy a share in the interest referred to therein.

29C. Preferential right to acquire property in certain cases.— (1) Where, after the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994 an interest in any immovable property of any intestate or in any business carried on by him or her, whether solely or in conjunction with others, devolves under section 29A or section 29B upon two or more heirs, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application.

(3) If there are two or more heirs proposing to acquire any interest under this section, then, the heir who offers the highest consideration for the transfer shall be preferred.

Explanation .—In this section “court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.”

[Vide Maharashtra Act 39 of 1994, sec. 2 (w.e.f. 22-6-1994).]

Tamil Nadu:

After Chapter II, insert the following Chapter, namely:—

“Chapter IIA

Succession by survivorship

29A. Equal rights to daughter in coparcenary property.— Notwithstanding anything contained in section 6 of this Act,—

(i) in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in thesame manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to son:

Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter:

Provided further that the share allotable to the pre-deceased child of pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter, as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition:

(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989;

(v) nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.

29B. Interest to devolve by survivorship on death.— When a female Hindu dies after the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, having at the time of her death, an interest in a Mitakshara coparcenary property by virtue of the provisions of section 29A, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation I.— For the purposes of this section, the interest of a female Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not.

Explanation II.— Noting contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased had separated himself or herself from the coparcenary or any of his or her heirs to claim on intestacy a share in the interest referred to therein.

29C. Preferential right to acquire property in certain cases.— (1) Where, after the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, an interest in any immovable property of an intestate or in any business carried on by him or her, whether solely or in conjunction with others, devolves under section 29A or section 29B upon two or more heirs, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of, or incidental to, the application.

(3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

Explanation.— In this section “court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on and includes any other court which the s tate Government may, by notification in the Tamil Nadu Government Gazette, specify in this behalf.

[Vide Tamil Nadu Act 1 of 1990 sec. 2 (w.r.e.f. 25-3-1989).]

Chapter III – Testamentary Succession

Section 30. Testamentary succession

¹[***] Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so ²[disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.

Explanation.— The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this ³[section.]

⁴[***]

———-

1. The brackets and figure “(1)” omitted by Act 58 of 1960, sec. 3 and Sch. II (w.e.f. 26-12-1960).

2. Subs. by Act 39 of 2005, sec. 6, for “disposed of by him” (w.e.f. 9-9-2005).

3. Subs. by Act 56 of 1974, sec. 3 and Sch. II, for “sub-section”.

4. Sub-section (2) omitted by Act 78 of 1956, sec. 29 (w.e.f. 21-12-1956).

Chapter IV – Repeals

Section 31. Repeals

Rep. By Repealing and Amending Act, 1960 (58 of 1960) Section 2 and Sch.1

THE SCHEDULE

HEIRS IN CLASS AND CLASS II

Son, daughter, widow, mother, son of a pre-deceased son, daughter of a pre-deceased son, son of a pre-deceased daughter, duaghter of a pre-deceased daughter, widow of a pre-deceased son, ¹son of pre-deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son, widow of a pre-deceased son of a pre-deceased son.

Class II

1. Father

2. (1) Son’s daughter’s son (2) son’s daughter’s daughter, (3) brother,(4) sister.

III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter , (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter.

IV. (1) Brother’s son (2) Sister’s son, (3) brother’s daughter (4) Sister’s daughter.

V. Father’s father. Father’s mother.

VI. Father’s widow, brother’s widow.

VII Father’s brother, father’s sister.

VIII Mother’s father, mother’s sister.

IX Mother’s brother, mother’s sister.

Explanation.- In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood.

—————–

1. Added by Act 39 of 2005, sec. 7 (w.e.f. 9-9-2005).

Indian Divorce Act

November 30, 2014

Chapter I – Preliminary

Section 1. Short title, commencement of Act

An Act to amend the law relating to Divorce and Matrimonial Causes.

[26th February, 1869.]

PREAMBLE- WHEREAS it is expedient to amend the law relating to the divorce of persons professing the Christian religion, and to confer upon certain Courts jurisdiction in matters matrimonial; it is hereby enacted as follows: -

Section 2. Extent of Act.

This Act extends to [the whole of India [except the State of Jammu and Kashmir.

Extent of power to grant relief generally, and to make decrees of dissolution, or of nullity. – Nothing hereinafter contained shall authorise and Court to grant any relief under this Act except where the petitioner [or respondent] professes the Christian religion, or to make decrees of dissolution of marriage except where the parties to the marriage are domiciled in India at the time when the petition is presented, or to make decrees of nullity of marriage except where the marriage has been solemnized in India and the petitioner is resident in India at the time of presenting the petition, or to grant any relief under this Act, other than a decree of dissolution of marriage or of nullity of marriage, except where the petitioner resides in India at the time of presenting the petition.

Section 3. Interpretation-clause.

In this Act, unless there by something repugnant in the subject or context, -

“High Court”.-[(1) “High Court” means with reference to any area:-

(a) in a State, the High Court of Delhi;

(b) in Delhi, High Court of Delhi;

(bb) In Himachal Pradesh, the High Court of Punjab and Haryana upto and inclusive of the 30th April, 1967 and the High Court of Delhi thereafter;]

(c) In Manipur and Tripura, the High Court of Assam;

(d) In the Andaman and Nicobar Islands, the High Court at Calcutta;

(e) In [Lakshadweep ], the High Court of kerla;

(ee) In Chandigarh, the High Court of Punjab and Haryana;

and in the case of any petition under this Act, “High Court” means the High Court for the area where the husband and wife reside or last resided together :

“District Judge.- (2) “District Judge” means a Judge of a principal civil court of original jurisdiction however designated:

“District Court”.-(3) “District Court” means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together:

“Court”. -(4) “Court” means the High Court or the District Court, as the case may be:

“Minor children”. – (5) “minor children” means, in the case of sons of Native fathers, boys, who have not completed the age of sixteen years, and , in the case of daughters of Native fathers, girls who have not completed the age of thirteen years: In other cases it means unmarried children who have not completed the age of eighteen years:

“Incestuous adultery”. -(6) “incestuous adultery” means adultery committed by a husband with a woman with whom, if his wife were dead, he could not lawfully contract marriage by reason of her being within the prohibited degrees of consanguinity (whether natural or legal) or affinity:

“Bigamy with adultery”.-(7) “bigamy with adultery” means adultery with the same woman with whom the bigamy was committed:”

“Marriage with another woman”.-(8) “marriage with another woman” means marriage of any person, being married, to any other person, during the life of the former wife, whether the second marriage shall have taken place within [India] or elsewhere:

“Desertion”-(9) “desertion” implies abandonment against the wish of the person charging it: and

“Property”-(10) “property” includes in the case of the wife any property to which she is entitled for an estate in reminder or reversion or as trustee, executrix or administratrix; and the date of the death of the testator or interstate shall be deemed to be the time at which any such wife becomes entitled as executrix or administratrix.

Chapter II – Jurisdiction

Section 4. Matrimonial jurisdiction of High Courts to be exercised subject to Act Exception.

The jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro, and in all other causes, suits and matters matrimonial, shall be exercised by such Courts and by the District Courts subject to the provisions in this Act contained, and not otherwise: except so far as relates to the granting of marriage-licenses, which may be granted as if this Act had not been passed.

Section 5. Enforcement of decrees or orders made heretofore by Supreme or High Court.

Any decree or order of the late Supreme Court of judicature at Calcutta, Madras or Bombay sitting on the ecclesiastical side, or of any of the said High Courts sitting in the exercise of their matrimonial jurisdiction, respectively, in any cause or matter matrimonial, may be enforced and dealt with by the said High Courts, respectively , as hereinafter mentioned, in like manner as if such decree or order had been originally made under this Act by the Court so enforcing or dealing with the same.

Section 6. Pending suits

All suits and proceedings in causes and matter matrimonial, which when this Act comes into operation are pending in any High Court, shall be dealt with and decided by such Court, so far as may be, as if they had been originally instituted therein under this Act.

Section 7. Court to act on principles of English Divorce Court.

Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief:

Provided that nothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to relief is founded.

Section 8. Extraordinary jurisdiction of High Court.

The High Court may, whenever it thinks fit, remove and try and determine as a Court of original jurisdiction any suit or proceeding instituted under this Act in the Court of any District Judge within the limits of its jurisdiction under this Act.

Power to transfer suits.-The High Court may also withdraw any such suit or proceeding, and transfer it for trial or disposal to the Court of any other such District Judge.

Section 9. Reference to High Court.

When any question of law or usage having the force of law arises at any point in the proceedings previous to the hearing of any suit, or in the execution of the decree therein or order thereon, the Court may, either of its won motion or on the application any of the parties, draw up a statement of the case and refer it, with the Court’s own opinion thereon, to the decision of the High Court.

If the question has arisen previous to or in the hearing, the District Court may either stay such proceedings, or proceed in the case pending such reference, and pass a decree contingent upon the opinion of the High Court upon it.

If a decree or order has been made, its execution shall be stayed until the receipt of the order or the High Court upon such reference.

Chapter III – Dissolution of Marriage

Section 10. When husband may petition for dissolution

Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.

When wife may petition for dissolution.-Any wife may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;

Or has been guilty of incestuous adultery,

Or of bigamy with adultery,

Or of marriage with another woman with adultery,

Or of rape, sodomy or bestiality,

Or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro,

Or of adultery coupled with desertion, without reasonable execuse, for two years or upwards.

Contents of petition. -Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.10. When husband may petition for dissolution – Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.

When wife may petition for dissolution.-Any wife may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;

Or has been guilty of incestuous adultery,

Or of bigamy with adultery,

Or of marriage with another woman with adultery,

Or of rape, sodomy or bestiality,

Or of adultery coupled with such cruelty as without adultery would have

entitled her to a divorce a mensa et toro,

Or of adultery coupled with desertion, without reasonable execuse, for two years or upwards.

Contents of petition. -Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.

Section 11. Adultery to be co-respondent.

union any such petition presented by a husband, the petitioner shall make the alleged adulterer a correspondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court:-

(1) That the respondent is leading the life of prostitute, and the petitioner knows of no person with whom the adultery has been committed;

(2) That the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it;

(3) That the alleged adulterer is dead.

Section 12. Court to be satisfied of absence of collusion.

Upon any such petition for the dissolution of a marriage, the Court shall satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or not the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery, or has condoned the same, and shall also enquire into any countercharge which may be made against the petitioner.

Section 13. Dismissal of petition.

In case the Court, on the evidence in relation to any such petition, is satisfied that the alleged adultery has been committed, or finds that the petitioner has, during the marriage, been accessory to, or conniving at, the going through of the said form of marriage, been accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecute in collusion with either of the respondents, then, in and any of the said cases the Court shall dismiss the petition.

When a petition is dismissed by a District Court under this section, the petitioner, may nevertheless, present a similar petition to the High Court.

Section 14. power to Court to pronounce decree for dissolving marriage.

In case the Court is satisfied on the evidence that the case of the petitioner has been proved, and does not fine that the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of,

Or that the petition is presented or prosecuted in collusion with either of the respondents,

The Court shall pronounce a decree declaring such marriage to be dissolved in the manner and subject to all the provisions and limitations in sections 16 and 17 made and declared:

Provided that the Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery,

Or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting such petition,

Or of cruelty towards the other party to the marriage,

Or of having deserted willfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse,

Or of such willful neglect or misconduct of or towards the other party as had conduced to the adultery.

Condonation.- No adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal cohabitation has been resumed or continued.

Section 15. Relief in case of opposition on certain grounds.

In any suit instituted for dissolution of marriage, if the respondent opposes the relief sought on the ground, in case of such a suit instituted by a husband, of his adultery, cruelty, or desertion without reasonable excuse, or, in case of such a suit instituted by a wife, on the ground of her adultery and cruelty, the Court may in such suit give to the respondent, on his or her application, the same relief to which he or she would have been entitled in case he or she had presented a petition seeking such relief, and the respondent shall be competent to give evidence of or relating in case he or she had presented a petition seeking such relief, and the respondent shall be competent to give evidence of or relating to such cruelty or desertion.

Section 16. Decrees for dissolution to be nisi.

Every decree for dissolution of marriage made by a High Court not being a confirmation of a decree of a District Court, shall, in the first instance, be a decree nisi, not to be made absolute till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court, by general or special order from time to time, directs.

Collusion. – During that period any person shall be at liberty, in such manner as the High Court by general or special order from time to time direct, to show cause why the said decree should not be made absolute by reason of the same having been obtained by collusion or by reason of material facts not being brought before the Court.

On cause being so shown, the Court shall deal with the case by making the decree absolute, or by reversing the decree nisi, or by requiring further inquiry, or otherwise as justice may demand.

The High Court may order the cost of Counsel and witnesses and otherwise arising from such cause being shown, to be paid by the parties or such one or more of them as it thinks fit, including a wife if she have separate property.

Whenever a decree nisi has been made, and the petitioner fails, within a reasonable time, to move to have such decree made absolute, the High Court may dismiss the suit.

Section 17. Confirmation of decree for dissolution by District Judge.

Every decree for dissolution of a marriage made by a District Judge shall be subject to confirmation by the High Court.

Cases for confirmation of a decree for dissolution of marriage shall be heard (where the number of the Judges of the High Court is three or upwards) by a Court composed of three such Judges, and in case of difference, the opinion of the majority shall prevail, or (where the number of the Judges of the High Court is two) by a Court composed of such two Judges, and in case of difference, the opinion of the Senior Judges shall prevail.

The High Court, if it think further enquiry or additional evidence to be necessary, may direct such enquiry to be made, or such evidence to be taken.

The result of such enquiry and the additional evidence shall be certified to the High Court by the district Judge, and the High Court shall thereupon make an order confirming the decree for dissolution of marriage, or such other order as to the Court seems fit:

Provided that no decree shall be confirmed under this section till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court by general of special order from time to time directs.

During the progress of the suit in the Court of the District Judge, any person suspecting that any parties to the suit are or have been acting collusion for the purposes of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to tome directs, to apply to the High Court to remove the suit under section 8, and the High Court shall thereupon, if it thinks fit, remove such suit and try and determine the same as a Court of original jurisdiction, and the provisions contained in section 16 shall apply to every suit so removed: or it may direct the District Judge to take such steps in respect of the alleged collusion as may be necessary, to enable him to make a decree in accordance with the justice of the case.

Section 17A. Appointment of officer to exercise duties of King’s Proctor.

The Government of the State within which any High Court exercises jurisdiction, may appoint an officer who shall, within the jurisdiction of the High Court in that State, have the like right of showing cause why a decree for the dissolution of a marriage should not be made absolute or should not be confirmed, as the case may be, as is exercisable in England by the King’s Proctor; and the said Government may make rules regulating the manner in which the right shall be exercised and all matters incidental to or consequential or any exercise of the right.

Chapter IV – Delinquent Juveniles

Section 18. Petition for decree of nullity.

Any husband or wife may present a petitioner to the District Court or to the High Court, praying that his or her marriage may be declared null and void.

Section 19. Grounds of decree.

Such decree may be made on any of the following grounds:-

(1) That the respondent was impotent at the time of the marriage and at the time of the institution of the suit;

(2) That the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity;

(3) That either party was a lunatic or idiot at the time of the marriage;

(4) That the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.

Nothing in this section shall effect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.

Section 20. Confirmation of District Judge’s decree

Every deccree of nullify of marriage made by a District Judge shall be subject to confirmation by the High Court, and the provisions of section 17, clauses 11,2,3,and 4, shall, mutatis mutandis apply to such decrees.

Section 21. Children of annulled marriage.

Where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract.

Chapter V – Judicial Separation

Section 22. Bar to decree for divorce a mensa et toro: but judicial separation obtainable by husband or wife.

No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned.

Section 23. Application for separation made by petition.

Application for judicial separation on any one of the grounds aforesaid, may be made by either husband or wife petition to the District Court or the High Court; and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.

Section 24. Separated wife deemed spinster with respect to after-acquired property.

In every case of judicial separation under this Act, the wife shall, form the date of the sentence, and whilst the separation continues, be considered as unmarried with respect to property of every description which she may acquire, or which may come to or devolve upon her.

Such property may be disposed of by her in all respects as an unmarried woman, and on her decease the same shall, in case she dies interstate, go as the same would have gone if her husband had been then dead:

Provided that, if any such wife again cohabits with her husband, all such property as she may be entitled to when such cohabitation takes place shall be held to her separate use, subject, however, to any agreement in writing made between herself and her husband whilst separate.

Section 25. Separated wife deemed spinster for purposes of contract and suing

In every case of judicial separation under this Act, the wife shall, whilst so separated, be considered as an unmarried woman for the purposes of contract, and wrongs and injuries, and suing and being sued in and civil proceeding; and her husband shall not be liable in respect of any contract, act or costs entered into, done, omitted or incurred by her during the separation:

Provided that where, upon any such judicial separation, alimony has been decreed or ordered to be paid to the wife, and the same is not duly paid by the husband, he shall be liable for necessaries supplied for her use:

Provided also that nothing shall prevent the wife from joining, at any time during such separation, in the exercise of any joint power given to herself and her husband.

Section 26. Decree of separation obtained during absence of husband or wife may be reversed.

Any husband or wife, upon the application of whose wife or husband, as the case may be, a decree of judicial separation has been pronounced, may, at any time thereafter, present a petition to the Court by which the decree was pronounced, praying for a reversal of such decree, on the ground that it was obtained in his or her absence, and that there was reasonable excuse for the alleged desertion, where desertion was the ground of such decree.

The Court may, in being satisfied of the truth of the allegations of such petition, reverse the decree accordingly; but such reversal shall not prejudice or affect the rights or remedies which any other person would have had, in case it had not been decreed, in respect of any debts, contracts, or acts of the wife incurred, entered into, or done between the times of the sentence of separation and of the reversal thereof.

Chapter VI – Protection-Orders

Section 27. Deserted wife may apply to court for protection.

Any wife to whom section 4 of the Indian Succession Act, 1865, (10 of 1865) does not apply, any, when deserted by her husband, present a petition to the District Court or the High Court, at any time after such desertion, for an order to protect any property which she may have acquired or may acquire, any property of which she may have become possessed or may become possessed after such desertion, against her husband or his creditors, or any person claiming under him.

Section 28. Court may grant protection-order.

The Court, if satisfied of the fact of such desertion, and that the same was without reasonable excuse, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earnings and other property from her husband and all creditors and persons claiming under him. Every such order shall state the time at which the desertion commenced, and shall, as regards all persons dealing with the wife in reliance thereon, be conclusive as to such time..

Section 29. Discharge or variation of orders.

The husband or any creditor of, or person claiming under him, may apply to the Court by which such order was made for the discharge or variation thereof, and the Court, if the desertion has ceased, or if for any other reason it thinks fit so to do, may discharge or vary the order accordingly.

Section 30. Liability of husband seizing wife’s property after notice or order.

If the husband, or any creditor of, or person claiming under the husband, seizes or continues to hold any property of the wife after notice of any such order, he shall be liable, at the suit of the wife (which she is hereby empowered to bring), to return or deliver to her the specific property, and also to per her a sum equal to double its value.

Section 31. Wife’s legal position during continuance of order.

So long as any such order of protection remains in force the wife shall be and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to property and contracts and suing and being sued, as she would be under this Act if she obtained a decree of judicial separation.

Chapter VII – Restitution of Conjugal Rights

Section 32. Petition for restitution of conjugal rights.

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

Section 33. Answer to petition.

Nothing shall be pleaded in answer to a petition For restitution of conjugal rights, which would not be ground for a suit for judicial separation or for a decree of nullity of marriage.

Chapter VIII – Damages and Costs

Section 34. Husband may claim damages from adulterer.

Any husband may, either in a petition for dissolution of marriage or for judicial separation only, claim damages from any person on the ground of his having committed adultery with the wife of such petitioner.

Such petition shall be served on the alleged adulterer and the wife, unless the Court dispenses with such service, or directs some other service to be substituted.

The damages to be recovered on any such petition shall be ascertained by the said Court, although the respondents or either of them may not appear.

After the decision has been given, the Court may direct in what manner such damages shall be paid or applied.

Section 35. Power to order adulterer to pay costs.

Whenever in any petition presented by a husband the alleged adulterer has been made a co- respondent, and the adultery has been established the Court may order the correspondent to pay the whole or any part of the costs of the proceedings.

Provided that the co-respondent shall not be ordered to pay the petitioners costs-

(1) If the respondent was, at the time of the adultery, living apart from her husband and leading the life of a prostitute, or

(2) If the co- respondent had not, at the time of the adultery, reason to believe the respondent to be a married woman.

Power to order litigious intervener to pay costs.-Whenever any application is made under section 17, the Court, if it thinks that the applicant had no grounds or no sufficient grounds for intervening, may order him to pay the whole or any part of the costs occasioned by the application.

Chapter IX – Alimony

Section 36. Alimony pendente lite.

In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection the wife may present a petition for alimony pending the suit.

Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just:

Provided that alimony pending the suit shall in no case exceed one-fifth of the husband’s average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be.

Section 37. Power to order permanent alimony.

The High Court may, if it thinks fit, on any decree absolute declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, and the District Judge may, if he thinks fit, on the confirmation of any decree or his declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife,

Order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary.

Power to order monthly or weekly payments.-In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable:

Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part as to the Court seems fit.

Section 38. Court may direct payment of alimony to wife or to her trustee.

In all cases in which the Court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court seem expedient, and may from time to time appoint a new trustee, if it appears to the Court expedient so to do.

Chapter X – Settlements

Section 39. Power to order settlement of wife’s property for benefit to husband and children.

Whenever the Court pronounces a decree of dissolution of marriage or Judicial separation for adultery of the wife, if it is made to appear to the Court that the wife is entitled to any property, the Court may, if it thinks fit, order such settlement as it thinks reasonable to be made of such property or any part thereof, for the benefit of the husband, or of the children of the marriage, or of both.

Any instrument executed pursuant to any order of the Court at the time of or after the pronouncing of a decree of dissolution of marriage or judicial separation, shall be deemed valid notwithstanding the existence of the disability of coverture at the time of the execution thereof:

Settlement of damages. – The court may direct that the whole or any part of the damages recovered under section 34 shall be settled for the benefit of the children of the marriage, or as a provision for the maintenance of the wife.

Section 40. Inquiry into existence of ante-nuptial or post-nuptial settlements.

The High Court, after a decree absolute for dissolution of marriage, or a decree of nullity of marriage, and the District Court, after its decree for dissolution of marriage or of nullity of marriage has been confirmed,

may inquire into the existence of ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders, with reference to the application of the whole or a portion of the property settled, whether for the benefit of the husband or the wife, or of the children (if any) of the marriage, or of both children and parents, as to the Court seems fit:

Provided that the Court shall not make any order for the benefit of the parents or either of them at the expense of the children.

Chapter XI – Custody of Children

Section 41. Power to make orders as to custody of children in suit for separation.

In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the said Court.

Section 42. Power to make such orders after decree.

The Court, after a decree of judicial separation, may upon application (by petition) for this purposes make, from time to time, all such orders and provisions; with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.

Section 43. Power to make orders as to custody of children in suits for dissolution or nullity.

In any suit for obtaining a dissolution or marriage or a decree of nullity of marriage instituted in, or removed to, a High Court, the Court may from time to time, before making its decree absolute or its decree (as the case may be), make such interim orders, and may make such provision in the decree absolute or decree, and in any such suit instituted in a District Court may from time to time, before its decree is confirmed, make such interim orders, and may make such provision on such confirmation.

as the High Court of District Court (as the case may be ) deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit,

and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the Court.

Section 44. Power to make such orders after decree or confirmation.

The High Court after a decree absolute for dissolution of marriage or a decree of nullity of marriage,

and the District Court after a decree for dissolution of marriage or of nullity of marriage has been confirmed,

may, upon application by petition for the purpose, make from time to time all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents was the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree absolute or decree (as the case may be), or by such interim orders as aforesaid.

Chapter XII – Procedure

Section 45. – Code of Civil Procedure to apply.

Subject to the provisions herein contained all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure.

Section 46. Forms of petitions and statements.

The forms set forth in the Schedule to this Act, with such variation as the circumstances of each case require, may be used for the respective purposes mentioned in such Schedule.

Section 47. Petition to state absence of collusion.

Every petition under this Act for a decree of dissolution of marriage, or of nullity of marriage, or of judicial separation shall state that there is not any collusion or connivance between the petitioner and the other party to the marriage.

Statement to be verified. -The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in manner required by law for the verification of plaints, and may at the hearing be referred to as evidence.

Section 48. Suits on behalf of lunatics.

When the husband or wife is a lunatic or idiot, and suit under this Act (other than a suit for restitution of conjugal rights) may be brought on his or her behalf by the committee or other person entitled to his or her custody.

Section 49. Suits by minors.

Where the petitioner is a minor, he or she shall sue by his or her next friend to be approved by the Court; and no petition presented by a minor under this Act shall be filed until the next friend has undertaken in writing to be answerable for costs.

Such undertaking shall be filed in Court, and the next friend shall thereupon be liable in the same manner and to the same extent as if he were a plaintiff in an ordinary suit.

Section 50. Service of petition.

Every petition under this Act shall be served on the party to be affected thereby, either within or without [India], in such manner as the High Court by general or special order from time to time directs:

Provided that the Court may dispense with such service altogether in case it seems necessary or expedient so to do.

Section 51. Mode of taking evidence

The witnesses in all proceedings before the Court, where their attendance can be had, shall be examined orally, and any party may offer himself or herself as a witness, and shall be examined, and may be cross-examined and re-examined, like any other witness:

Provided that the parties shall be at liberty to verify their respective cases in whole or in part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party, or by direction of the Court, be subject to be cross-examined by or on behalf of the opposite party orally, and after such cross-examination may be re-examined orally as aforesaid by or on behalf of the party by whom such affidavit was filed.

Section 52. Competence of husband and wife to give evidence as to cruelty or desertion.

On any petition presented by a wife, praying that her marriage may be dissolved by reason of her husband having been guilty of adultery coupled with cruelty, or of adultery coupled with desertion without reasonable excuse, the husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or desertion.

Provided that the parties shall be at liberty to verify their respective cases in whole or in part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party, or by direction of the Court, be subject to be cross-examined by or on behalf of the opposite party orally, and after such cross-examination may be re-examined orally as aforesaid by or on behalf of the party by whom such affidavit was filed.

Section 53. Power to close doors.

The whole or any party of any proceeding under this Act may be heard, if the Court thinks fit, with closed doors.

Section 54. Power to adjourn.

The Court may, from time to time, adjourn the hearing of any petition under this Act, and may require further evidence thereon if it sees fit so to do.

Provided that the parties shall be at liberty to verify their respective cases in whole or in part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party, or by direction of the Court, be subject to be cross-examined by or on behalf of the opposite party orally, and after such cross-examination may be re-examined orally as aforesaid by or on behalf of the party by whom such affidavit was filed.

Section 55. Enforcement of, and appeal from, orders and decrees.

All decrees and orders made by the Court in any suit or proceeding under this Act shall be enforced and may be appealed from, in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced and may be appealed from, under the laws, rules and orders for the time being in force:

Provided that there shall be no appeal from a decree of a District Judge for dissolution of marriage or of nullity of marriage: nor from the order of the High Court confirming or refusing to confirm such decree:

No appeal as to costs. -Provided also that there shall be no appeal on the subject of costs only.

Section 56. Appeal to the Supreme Court.

Any person may appeal to [the Supreme Court from any decree (other than a decree nisi) or order under this Act of a High Court made on appeal or otherwise,

and from any decree (other than a decree nisi) or order made in the exercise of original jurisdiction by Judge of a High Court or of any Division Court from which an appeal shall not lie to the High Court,

when the High Court declares that the case is a fit one for appeal to [the Supreme Court.

Chapter XIII – Re-marriage

Section 57. Liberty to parties to marry again.

When six months after the date of an order of a High Court confirming the decree for a dissolution of marriage made by a District Judge have expired,

or when six months after the date of any decree of a High Court dissolving a marriage have expired, and no appeal has been presented against such decree to the High Court in its appellate jurisdiction,

or when any such appeal has been dismissed,

or when in the result of any such appeal any marriage is declared to be dissolved,

but no sooner, it shall be lawful for the respect parties to the marriage to marry again, as if the prior marriage had been dissolved by death:

Provided that no appeal to [Supreme Court] has been presented against any such order or decree.

When such appeal has been dismissed, or when in the result thereof the marriage is declared to be dissolved, but not sooner, it shall be lawful for the respective parties to the marriage to marry again as if the prior marriage had been dissolved by death.

Section 58. English clergyman not compelled to solemnize marriage of persons divorced for adultery.

No clergyman in Holy Orders of the Church of England shall be compelled to solemnize the marriage of any person whose former marriage has been dissolved on the ground of his or her adultery, or shall be liable to any suit, penalty or censure for solemnizing or refusing to solemnize the marriage of any such person.

Section 59. English Minister refusing to perform ceremony to permit use of his Church.

When any Minister of any Church or Chapel of the said Church refuses to perform such marriage-service between any persons who but for such refusal would be entitled to have the same service performed in such Church or Chapel, such Minister shall permit any other Minister in Holy Orders of the said Church, entitled to officiate within the diocese in which such Church or Chapel is situate, to perform such marriage-service in such Church or Chapel.

Chapter XIV – Miscellaneous

Section 60. Decree for separation or protection-order valid as to persons dealing with wife before reversal.

Every decree for judicial separation or order to protect property, obtained by a wife under this Act shall, until reversed or discharged, be deemed valid, so far as necessary, for the protection of any person dealing with the wife.

No reversal, discharge or variation of such decree or order shall affect any rights or remedies which any person would otherwise have had in respect of any contracts or acts of the wife entered into or done between the dates of such decree or order, and of the reversal, discharge or variation thereof.

Indemnity of persons making payment to wife without notice of reversal of decree or protection- order. -All persons who in reliance on any such decree or order make any payment to, or permit any transfer or act to be made or done by, the wife who has obtained the same shall,

notwithstanding such decree or order may then have been reversed, discharged or varied, or the separation of the wife from her husband may have ceased, or at some time since the making of the decree or order been discontinued, be protected and indemnified as if, at the time of such payment, transfer or other act, such decree or order were valid and still subsisting without variation, and the separation had not ceased or been discontinued.

Unless, at the time of payment, transfer or other act, such person had notice of the reversal, discharge or variation of the decree or order or of the cessation or discontinuance of the separation.

Section 61. Bar of suit for criminal conversation.

After this Act comes into operation, no person competent to present a petition under section 2 and 10 shall maintain a suit for criminal conversation with his wife.

Section 62. Power to make rules.

The High Court shall make such rules under this Act as it may from time to time consider expedient, and may from time to time alter and add to the same:

Provided that such rules, alterations and additions are consistent with the provisions of this Act and the Code of Civil Procedure.

All such rules, alterations and additions shall be published in the Official Gazette.