A

STUDY REPORT

ON

“EXTENT TO WHICH JUDGES ARE ABLE TO DEVELOP LAW

THROUGH THE OPERATION OF DOCTRINE OF JUCDICAL
PRECEDENT AND IN THE INTERPRETATION OF STATUES: AN
ANALYSIS OF INDIAN LEGAL SCENARIO”

PRESCRIBED FOR

B.A. LLB (HONS.) SEMESTER-V

Submitted To: Submitted By;

Ms Monika Punia Name: Satyajita Mohanty

Assistant Professor Registration No. : 161401088

MANIPAL UNIVERSITY, JAIPUR

(Dehmi Kalan, Jaipur-Ajmer Highway, Jaipur-303007)

2018
 ACKNOWLEDGEMENT

I hereby acknowledge the help and support of the teachers, who helped me in compiling this
project. I thank the faculty and management of Manipal University Jaipur, School of Law, as
the resources that were necessary to complete the project were provided by them.
I am highly indebted to my teacher “Ms. Monika Punia” for his guidance and constant
supervision as well as for providing necessary knowledge regarding the subject at hand and
also for his support in completing the project.
I would like to express my gratitude towards my parents and friends for their kind cooperation
and encouragement which help me in completion of this project.

_______________
Satyajita Mohanty
 CERTIFICATE

This is to certify that Ms. Satyajita Mohanty student of B.A. LL.B. (hons.) semester V, School
of Law Manipal University Jaipur has completed his project work entitled “EXTENT TO

WHICH JUDGES ARE ABLE TO DEVELOP LAW THROUGH THE

OPERATION OF DOCTRINE OF JUCDICAL PRECEDENT AND IN THE
INTERPRETATION OF STATUES: AN ANALYSIS OF INDIAN LEGAL
SCENARIO” under my supervision and guidance.
It is further certified that the candidate has made sincere efforts for the completion of this
project.

_______________
Ms. Monika Punia
Table Of Contents

Doctrine of Judicial Precedent 5

landmark judgments that changed the course of India 6

WEBLIOGRAPHY 9
 Doctrine of Judicial Precedent

The doctrine of judicial precedent is a general principle of common law that is established in
a case to help Courts decide upon similar issues in subsequent case law. Judicial precedent is
defined in the Oxford Dictionary of Law as a “judgement or decision of a Court used as an
authority for reaching the same decision in subsequent cases.”There are two different kinds
of judicial precedent that exist which are; authoritative and persuasive. Authoritative
precedent binds all lower Courts, whilst persuasive precedent does not actually have to be
followed and is intended to merely persuade the Court into making a particular decision. It is
necessary that Courts always follow the judicial precedent doctrine so that any discrepancies’
can be avoided. This will provide greater certainty to the judicial system, which is vital in
maintaining the interests of justice. Not all agree that judicial precedent is that effective,
however, and have instead argued that many of the principles are weak and outdated. This is
due to the fact that judicial precedent is ageless and so a decision that was made a long time
ago by a Court of Appeal, for instance, will still have to be followed until “it is distinguished
by another Court of Appeal or overturned by the Supreme Court.” Judicial precedent’s that
have been set by higher Courts will therefore be binding upon all lower Courts unless the
same Court or the Supreme Court has overturned the previous decision as identified in Young
v Bristol Aeroplane Co Ltd. Therefore, whilst judicial precedent does have some drawbacks,
it is still an important part of the judicial system and is necessary in the interests of justice.

According to Salmond:

In loose sense it includes merely reported case law which may be cited and followed by
courts. In strict sense, that case law which not only has great binding authority but must also
be followed. In all precedents are authority of past decisions for future cases. It must be
reported, cited and followed by court.

http://mja.gov.in/Site/Upload/GR/summary%20of%20civil%20group.pdf

https://www.lawteacher.net/free-law-essays/judicial-law/judicial-precedent-is-source-of-
law.php

Object :
The main object of doctrine of precedent is that the law of the land should be clear, certain &
consistent so that the Courts shall follow it without any hesitation. In Union of India Vs.
Raghubir Singh (AIR 1989 SC 1933) it has been held “The doctrine of binding precedent has
the merit of promoting a certainty and consistency in judicial decisions, and enables an
organic development of the law, besides providing assurance to the individual as to the
consequence of transactions forming part of 4 daily affairs. And, therefore, the need for a
clear and consistent enunciation of legal principle in the decisions of a Court.”

landmark judgments that changed the course of India

T SAREETHA v. T VENKATA SUBBAIAH

CASE ANALYSIS FACTS

Sareetha was a high school student (16years) and stayed with her parents in Madras. She got
married to Venkata Subbaiah on 13-12-1975. Immediately after their marriage they were
separated and had been living apart from each other for five years or more. The husband filed
a petition for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955.
A revised petition was filled by the wife against the order passed by the learned sub ordinate
judge of the Cuddapah court overruling her objection raised against Venkata Subbaiah under
Section9 of the HMA, 1955.

ISSUE

Whether Section 9 of the Hindu Marriage Act, 1955 which provides for Restitution Of
Conjugal Rights violates Articles 14, 19 and 21 of the Constitution of India?

RULE

Section 9 of the Hindu Marriage Act, 1955: restitution of conjugal rights Article 14 of the
Constitution of India: Right to equality .

https://www.scribd.com/document/242213469/T-Sareetha-Case-Analysis

Article 19 of the Constitution of India: protection of rights regarding freedom of speech.

Article 21 of the Constitution of India: Right to life and liberty.

REASONING
Constitutional Validity of Section 9 of the Act is liable to be struck down as violative of the
fundamental rights in part III of the Constitution of India, particularly articles 14, 19 and 21.
The contention was that the said provision i.e. restitution of conjugal rights offends the
guarantee to life, personal liberty and human dignity and decency. Sexual cohabitation is an
inseparable ingredient of a decree for restitution of conjugal rights

Saroj Rani V/s Sudarshan Kumar , AIR 1984 SC 1562.

Brief Facts: Petition was filed by the wife for a restitution of conjugal rights under Section 9
of the Hindu Marriage Act,1955. Her husband consenting to the passing of a decree for the
same was passed. After a period of 1-year husband filed a petition under Section 13 of the
Hindu Marriage Act,1955 against the appellant for divorce on the ground that though one
year had elapsed from the date of passing the decree for restitution of conjugal rights as no
actual cohabitation had taken place between the parties.

While the period of cohabitation wife was taken to the house of the husband by her parents
one month after the decree and that the husband kept her in the house for two days and then
she was again turned out. Considering this District Court as the decree for restitution of
conjugal rights was passed by the consent of the parties, the husband was not entitled to a
decree for divorce. The appeal was filed by Respondent to High Court for decree of divorce.
On appeal, case came before Division Bench of High Court that a that a consent decree could
not be termed to be a collusive, decree so as to disentitle the petitioner to a decree for
restitution of conjugal rights, and that in view of the language of Section 23 if the Court
had tried to make conciliation between the parties and conciliation had been ordered, the
husband was not disentitled to get a decree. The appeal was allowed, and the husband was
granted a decree of divorce. The appeal for the same is here.

https://lawbriefs.in/case-brief-smt-saroj-rani-v-s-sudarshan-kumar-chadha-1984/

Issues before the Hon’ble court:

1.Husband whether entitled to a decree of divorce or not?

2.Constitutionality of Section 9 of Hindu Marriage Act, 1955

Findings of Court:

From the facts on record, it appeared to the court that there was no collusion between The
wife petitioned against the husband on certain allegations, the husband denied these
allegations. He stated that he was willing to take the wife back. A decree on that basis was
passed.

Before the Division Bench of behalf of the appellant-wife, counsel did not assail the factual
finding of the Trial Court that there was no cohabitation after the decree for restitution of
conjugal rights nor did counsel press the ground of defence namely that the appellant could
not take advantage of his ‘wrong’ because of having refused cohabitation in execution of the
decree.

There is, however, no whisper of these allegations as provided under Appellant’s Contention
no.2 in the pleading. As usual, on this being pointed out, the counsel prayed that he should
be given an opportunity of amending his pleadings and, the parties, with the usual plea,
should not suffer for the mistake of the lawyers.

On Respondent’s contention no.2 : Firstly there was no pleading, secondly this ground was
not urged before any of the courts below which is a question of fact, thirdly the facts pleaded
and the allegations made by the wife in the trial court and before the Division Bench were
contrary to the facts now sought to be urged in support of her appeal.

There are sufficient safeguards in Section 9 to prevent it from being a tyranny. The
importance of the concept of conjugal rights can be viewed in the light of Law Commission-
71st Report on the Hindu Marriage Act, 1955- “Irretrievable Breakdown of Marriage as a
Ground of Divorce”.

https://lawbriefs.in/case-brief-smt-saroj-rani-v-s-sudarshan-kumar-chadha-1984/

https://indiankanoon.org/doc/1382895/

Held:

Therefore quite apart from the fact that there was no pleading which is a serious and fatal
mistake, there is no scope of giving any opportunity of amending the pleadings. Therefore
NO AMENDMENTS TO PLEADINGS.
Further, Court said – We reach this conclusion without any mental compunction because it is
evident that for whatever be the reasons this marriage has broken down and the parties can no
longer live together as husband and wife if such is the situation it is better to close the
chapter.

This is so as an inducement by the court in appropriate case when the court has decreed
restitution for conjugal rights and that the court can only decree if there is no just reason for
not passing decree for restitution of conjugal rights to offer inducement for the husband or
wife to live together in order to give them an opportunity to settle up the matter amicably. It
serves a social purpose as an aid to the prevention of break-up of the marriage. It cannot be
viewed in the manner the learned single judge of Andhra Pradesh High Court has viewed it
and we are therefore unable to accept the position that Section 9 of the said Act is violative of
Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of
conjugal rights in the said Act is understood in its proper perspective and if the method of its
execution in cases of disobedience is kept in view.

The Section 9 of the Hindu Marriage Act, 1955 is constitutional.

Even after the final decree of divorce, the husband would continue to pay maintenance to the
wife until she remarries and would maintain the one living daughter of the marriage. Wife
would be entitled to such maintenance only until she remarries and the daughter Menka to her
maintenance until she is married. Respondent would pay costs of this appeal to appellant
assessed at Rs. 1500.

Appeal dismissed.

WEBLIOGRAPHY
https://indiankanoon.org/doc/1382895/
https://lawbriefs.in/case-brief-smt-saroj-rani-v-s-sudarshan-kumar-chadha-
1984/

https://www.scribd.com/document/242213469/T-Sareetha-Case-Analysis

http://mja.gov.in/Site/Upload/GR/summary%20of%20civil%20group.pdf

https://www.lawteacher.net/free-law-essays/judicial-law/judicial-precedent-is-
source-of-law.php