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Report No. 136

Conflicts in High Court Decisions on Central Laws - How to Foreclose and How to Resolve

Contents
Chapter I Introductory
1.1. Problem under examination
2. Want of uniformity an evil
3. Scheme of the report
Chapter II Uniformity and the Indian Legal System
1. Uniformity
2. Source of uniformity
3. Article 141 of the Constitution
4. Appellate Jurisdiction in constitutional matters and other matters
5. Appeal by special leave
6. Access to the Supreme Court
7. Binding effect of High Court judgment
8,9. Second appeal to High Court
10. Present position
11. Doctrine of precedent
12. Law Commission in 19th Century
13. Present Law Commission
14. Section 14(1), Hindu Succession Act
15. Another illustration of a controversy which ultimately was resolved by the Supreme Court
16. Question to be considered-the machinery
Chapter III Present Machinery, if Adequate
3.1. Present machinery: appeal to Supreme Court
2. Legislative intervention
3. Need for amendment
4. Certain specific enactments concerning Hindu Law covered
Chapter IV Identification of Some Problems Arising out of Conflicting Decisions of Different High Courts and Suggestion of Remedial Measures
4.1. Identification of Some Problems Arising out of Conflicting Decisions of Different High Courts and Suggestion of Remedial Measures
2. Can or cannot a respondent in a restitution of conjugal rights petition plead by way of defence that the marriage does not subsist?
4.3 and 4.3.1. Can one of the spouses who has signed a joint petition for divorce by consent not withdraw his or her consent before the court passes an order granting the prayer?
4.3.2. Which view deserves to prevail and how to amend the law?
4.3.3. The same view is held by the High Court of Bombay1 as reflected in the passage extracted from para. 11
4.3.4. The contrary view that consent can be withdrawn by one of the two spouses unilaterally is supported by the reasoning unfolded in this passage:1
4.3.5. Fallacy in the Delhi view
4.3.6. Why the Commission commends the view that consent can be withdrawn by any one of the spouses unilaterally
4.4. Should the objectionable or cruel conduct of one of the spouses subsequent to the institution of a petition under the Hindu Marriage Act, 1955
4.5.and 6. Can be examined
4.7. and 8 Cannot be examined
4.9. Why the Commission supports the view that the conduct of a spouse even subsequent to the institution of a matrimonial petition should be permitted to be examined
4.10. The law on the subject is, therefore, in need of legislative clarification empowering the Court to take into account subsequent conduct and subsequent events
4.11.1 Whether order granting maintenance to a respondent can be passed even whilst refusing relief claimed by the petitioner and dismissing his/her petition
4.11.2 Maintenance can be granted-the contrary view
4.11.3 The Andhra Pradesh High Court, in its recent judgment, has held that the power to grant maintenance under section 25 of the Act can be exercised even where the suit or petition is dismissed
4.11.4 How to resolve the conflict?
4.11.5 Reasons
4.12.1,2. Whether an application claiming maintenance can be entertained only by the very court which has passed a decree or also by any other court exercising jurisdiction under section 19 of the Act?
4.12.3 Which of the two conflicting views deserves to be adopted?
4.12.4 Recommendation
4.13.1,2. Whether the court passing an ex parte decree can itself set it aside under Order 9, rule 11, C.P.C., or whether the litigant should be obliged to prefer an appeal?
4.13.3 How to resolve the conflict
4.14.1 Whether an appeal against a decree of divorce abates on the death of the spouse obtaining the decree?
4.14.2 A Contrary view that such an appeal would abate has been taken by the Madras High Court1 on the following reasoning
4.14.3 Why in the opinion of the Law Commission the view subscribed to for the Bombay and Karnataka High Courts is correct and how to salvage the situation arising out of the conflict
4.14.4 Recommendation
4.15.1 Can a Matrimonial Court pass an order in respect of the persona property presented at or about the time of marriage to one of the spouse which is lying at the matrimonial home
4.15.2 The High Courts of Jammu & Kashmir1-2
4.15.3 How to resolve the conflict?
4.16.1 Whether section 23 of the Hindu Succession Act, 1956 is applicable where there is only one male heir of the intestate?
4.16.2 The Calcutta1-2, Gujarat3, Kerala4 and Madras5, High Courts have held that section 23
4.16.3 A contrary view has been taken by the Bombay1, Karriataka2 and Orissa3 High Courts. Says Bombay High Court4
4.16.4 Why the Bombay-Karnataka-Orissa view that the female heirs should in such a situation be entitled to claim partition deserves to prevail
4.16.5 How to resolve the conflict?
Chapter V Conclusions & Recommendations
5.1. Conclusion
2. Removal of existing conflicts
5.3.1 and 2 Second Recommendation
5.3.3 and 4,5 The contours of the suggested solution are
5.3.6 The Commission, therefore, recommends accordingly
Appendix Draft Bill
The Conflict of Decisions (Restoration of Uniformity) Bill, 1990
Short title
Definitions
Conflict of decisions and reference by the High Court
Contents of order of reference
Proceedings in the Supreme Court
Notice to parties and other persons
Arguments and submissions by parties
Hearing by Special Bench and consolidation of cases
Collusive references
Decision of the Supreme Court
Effect on judgment of High Courts
Rules by the Supreme Court


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