Marrying again (Bigamy) during lifetime of husband or wife

Section 494 of the Indian Penal Code, 1860 deals with the offence of Marrying again during lifetime of husband or wife. The offence under above mentioned Section is known as Bigamy under English law. However, Section 494 does not apply to Muslim males who are allowed to marry more than one wife, but the same is applicable to Muslim women.

In order to constitute an offence under Section 494, of the Indian Penal Code, 1860; it requires;

An existence of the first wife or husband when the second marriage is celebrated;

At the time of the second marriage, there must be a previous marriage valid and subsisting. However, if the first marriage is not a valid marriage, then contracting second marriage will not constitute an offence under Section 494 ((Padi, AIR 1963 HP 16)).

Similarly, a Muslim woman marrying within the period of iddat period is not guilty of bigamy ((Abdul Ghani v. Azizu Huq, (1911) 39 Cal 409)). Further, it is essential to note that, a divorce dissolves a valid marriage and the parties obtaining such dissolution can remarry ((Santosh Kumari v. Surjit Singh, AIR 1990 HP 77)).

Notwithstanding the fact that, the personal law permits a Muslim male to contract four marriages, if the second marriage is contracted under the provisions of Special Marriage Act, 1954 vis-à-vis the fact that, he has a legally wedded wife who has been married to him under the Mohammedan Law, Section 494 has to claw at the erring male… Mohammedan Law does not take preference over Special Marriage Act, 1954… there being no saving clause for the applicant to purge him of the charges under Section 494… the applicant is liable to be punished under this Section ((Radhika Sameena v. SHO Habeabnagar PS, 1997 Cr. LJ 1655 (AP).)).

The second marriage being void by reason of subsistence of the first according to the law applicable to the person violating the provisions of this Section

Prima facie, the expression “whoever marries” must mean “whoever marries validity” or “whoever… marries and whose marriage is a valid one”. If the marriage is not a valid one according to the law applicable to the parties, no question of its being by reason of its taking place during the life of the wife or husband of the person arises. If the marriage is not a valid one, it is no marriage in the eye of law ((Bhaurao, (1965) 67 Bom. LR 423 (SC).)).

Merely because, the second marriage even if performed by performing all essential ceremonies turns out to be void by virtue of Section 17 of the Hindu Marriage Act, 1955, it cannot be said that, Section 494 of Indian Penal Code, 1860 will not be attracted ((Gopal Lal v. State of Rajasthan, 1979 Cr. LJ 652 (SC).)).

If the second marriage was not provided to have been validly performed by observing essential ceremonies and customs in the community, the conviction under Section 494, of Indian Penal Code could not be maintained ((L. Obulamma, 1979 Cr. LJ 849 (SC).)). Even if the husband admits his second marriage, the prosecution is not absolved of its burden of proving that, the second wife was taken after solemnizing due ceremonies of Hindu Marriage ((P Satyanarayana v. P Mallaiah, (1996) 6 SCC 122)).

If a person who is already married goes through a form of marriage with another within prohibited degrees of relationship , he is still guilty of bigamy although the second marriage would be null and void in any case ((Robinson, (1938) 1 All ER 301)). However, it is not correct to say that, in every case of bigamy, unless the second marriage can be proved by bringing in the evidence of the performance itself, a conviction under Section 494 o Indian Penal Code, is virtually impossible. The accused can be convicted even if there is other reliable evidence to establish the charge ((Indu Bhgya Natekar v. Bhagya Pandurang Natekar, 1992 Cr. LJ 601 (Bom).)).

Though good faith and mistake of law are no defences to the charge of bigamy, it was held by the court in Raj Kumari v. Kalawti ((1992 Cr. LJ 1373 (All).)), that, the second marriage was invalid as one of the two essential ceremonies of the customary marriage was not performed. It was held that, having so concluded the court could not proceed to convict the accused under Section 494 of Indian Penal Code.

This section also laid down three exceptions to the offence viz.

  1. Continual absence of none of the parties for the space of seven years;
  2. The absent spouse not having been heard of by the other party as being alive within that time; and
  3. The party marrying must inform the person with whom he or she marries of the above fact.

Significance and purpose of Research Methodology

What is Research?

Research is the systematic investigation and study of materials and sources to establish facts and reach new conclusions, so it shapes people’s understanding of the world around them. Research comprises “creative work undertaken on a systematic basis in order to increase the stock of knowledge, including knowledge of humans, culture and society, and the use of this stock of knowledge to devise new applications.”

Read More: Meaning, Role and importance of Research

What is the definition of research methodology?

Research Methodology is the systematic, theoretical analysis of the methods applied to a field of study. It comprises the theoretical analysis of the body of methods and principles associated with a branch of knowledge.

Importance of Research

Through research findings, psychologists are able to explain individuals’ behaviors, including how people think and act in certain ways.

What is meant by academic research?

A good working definition of academic research and writing can be given as follows: investigation and writing based upon the idea of scientific inquiry. A reader may at this point wonder if this definition sheds any light on the subject.

Why is it important to do research?

A research study is a scientific way to improve or develop new methods of health care. Studies are designed to answer specific questions on how to prevent, diagnose, or treat diseases and disorders. Many types of research studies exist. For example, clinical trials test new medicines or devices.

What are Educational Research?

Education is the process of facilitating learning, or the acquisition of knowledge, skills, values, beliefs, and habits. Educational methods include storytelling, discussion, teaching, training, and directed research.

Educational research refers to a variety of methods, in which individuals evaluate different aspects of education including: “student learning, teaching methods, teacher training, and classroom dynamics”. … There are a variety of disciplines which are each present to some degree in educational research.

What is the process of research?

The research process is a simple means of effectively locating information for a research project, be it a research paper, an oral presentation, or something else assigned by your professor. Because research is a process, you will need to allow for ample time to refine or change your topic.

Death of a person and actionable injury in civil court

Can we claim damages in case of death of a person arising out of a tort? This was answered by the King’s Bench Division of England and Wales High Court in the famous case of Baker v. Bolton ([1808] EWHC KB J92; (1808) 1 Camp 493; 170 ER 1033).

It was a case where, the wife of the plaintiff suffered an injury while travelling in a train and subsequently resulted in her death. The major issue came for consideration in this case was whether, damages for negligence was entitled to a man for the grief he suffered as a result of his wife?

In general for either type of damage damages cannot be recovered under the law of torts.  According to English law, a personal cause of action comes to an end when the person dies. Therefore, the death of a person cannot be complained as an actionable injury in an ordinary civil court. This rule was laid down in Baker v. Bolton.

It was also observed by the King’s Bench in the said case that, the jury could only take into consideration the bruises which the plaintiff had himself sustained, and the loss of his wife’s society, and the distress of mind he had suffered on her account, from the time of the accident till the moment of her dissolution.

Above observation was made by the King’s Bench based on the maxim actio personalis moritur cum persona. However, referring to the observation of Honourable Supreme Court of India in the PA Tendolkar case (AIR 1973 SC 1104) the rule of Baker v. Bolton cannot be applied in those cases where the cause of action is based on a breach of contract.

Graham v. Connor and Objective Reasonableness standard

Graham v. Connor ((490 U.S. 386 (1989).)), was a United States Supreme Court case where the Court determined that an objective reasonableness standard should apply to a civilian’s claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other “seizure” of his person.

Graham v. Connor determine the legality of every use-of-force decision an officer makes. An officer must apply constitutionally appropriate levels of force, based on the unique circumstances of each case.

United States Supreme Court in this case held that determining the “reasonableness” of a seizure requires a careful balancing of the nature and quality of the intrusion on the individual… against the attempt at “countervailing” and under the guise of governmental interests, being at stake.

The Court outlined a non-exhaustive list of factors for balancing an individual’s rights and an officer’s: the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, whether he is actively resisting arrest or attempting to evade arrest by flight.

Supreme Court of United States cautioned, the “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

Supreme Court of United States also reinforced, as in other Fourth Amendment contexts… the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.

However, Supreme Court of United States rejected the notion that the judiciary could use the Due Process Clause instead of the Fourth Amendment in analyzing excessive force claims: Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.

Cohabitation caused by a man deceitfully inducing a belief of lawful marriage

Section 493 of the Indian Penal Code, 1860 deals with the offence of Cohabitation caused by a man deceitfully inducing a belief of lawful marriage. Under this section a man either married or unmarried who induces a women to become, as she thinks, his wife, but in reality his concubine, is punishable for the offence of Cohabitation caused by a man deceitfully inducing a belief of lawful marriage, with imprisonment for a term of 10 years and shall also be liable to fine or both.

In order to constitute an offence under Section 493 of Indian Penal Code, 1860, there shall be a;

However, if a woman married a man with the knowledge that, he was already a married man and there was no proof that the man falsely induced her to believe anything, it was held that, the ingredients of the offence under Section 493 were not made out ((Saurava Barik v. Gauri Kaudi, 1994 Cr.LJ 440)).

Where a man and woman exchanged garlands, the man promising to marry formally, and had se as a result of which the woman became pregnant, it was held that, exchange of garland did not amount to falsely inducing the woman to believe that she was married to the man ((Amruta Gadtia v. Trilochan Pradhan, 1993 Cr. LJ 1022 (Orissa).)).

In Akhaya Kumar v. State ((1998 Cr. LJ 1757 (Orissa).)), the accused and the prosecutrix were in love with each other for several years. The accused married another and still continued to cohabit with the prosecutrix on false pretences of marrying her. The prosecutrix was aware of this fact. Hence, there was no deception. Framing of charge against the accused under Section 493 of Indian Penal Code, 1860 was not proper.

Defamation as a crime under Indian Penal Code

Section 499 – 502 of Indian Penal Code deals with the defamation. Offence of defamation can be dealt both under the law of crimes as well as under Law of Torts. Criminal nature of defamation is defined under Section 499 of Indian Penal Code and Section 500 provides the punishment for such offence.

Bare reading of section 499 it becomes clear that any person by words either spoken or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said to defame that person. Section 499 is followed by 4 Explanations and 10 Exceptions.

The essence of the offence of defamation under the provisions of Indian Penal Code is the publication of the defamatory statement ((Baburao Shankarrao v. Shaikh Biban Baban Pahelwan, 1984 Cri LJ 350)). It may be either libel or slander.

If publication of truth is in public interest it would not be a defamation, but if it has nothing to do with public interest and relates to privacy of an individual then it would certainly be defamatory ((Abk Prasad v Union Of India, 2002 (3) ALT 332)).

Exception 8 to Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject- matter of accusation ((AS Sree Nandhini v R Uthaman, decided on November 27, 2014, Madras High Court)).

General law relating to defamation is to be found in the operative part of Section 499 of the Indian Penal Code and various exceptions which only carve out the circumstances in which the act of the accused, which was otherwise defamatory, would not amount to defamation within the meaning of the section. The onus of proving these circumstances must, therefore, be borne and discharged by the accused himself and it is not the function of the prosecution to prove that no such circumstance exists ((Baburao Shankarrao v. Shaikh Biban Baban Pahelwan, 1984 Cri LJ 350)).

The question came before the Andhra Pradesh High Court ((Abk Prasad v Union Of India, 2002 (3) ALT 332))was that, whether Section 499 and Section 500 violates any principles on which our democratic set up rests, especially, whether it violates Article 19 of the Indian Constitution.

Decency and defamation are two of the grounds mentioned in clause (2). Law of torts providing for damages for invasion of the right to privacy and defamation and Sections 499/500 IPC are the existing laws saved under Article 19(2), and court held that, defamation is one of the exceptions created under Article 19(2) of the Constitution, therefore, Section 499 or 500 does not suffers from any Constitutional infirmity.

Hence, Sections 499 and 500 are not in violation of any principles on which our democratic set up rests. Truth is an exception to the law of defamation. By virtue of Section 500 of Indian Penal Code, whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Punishment for an attempt to commit an offence

Intention, preparation, attempts and commission are the four stages in a crime. By virtue of Section 511 of Indian Penal Code, 1860 “an attempt to commit an offence” is a punishable offence. Every attempt though fails must create an alarm, which of itself an injury and the normal guilt of the offender is the same, as if he had succeeded. Hence, an attempt to commit an offence is a punishable offence.

By virtue of Section 511 of Indian Penal Code, 1860 whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.

An attempt means to try OR to endeavour to do something. In other words, an attempt means an act towards the commission of the offence, which fails due to circumstances independent of the attempter’s will. A person is said ((Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698))to have committed “an attempt to commit an offence” under the Indian Penal Code, if;

  • He intends to commit any particular offence; OR
  • He made preparation for it; and
  • He does any act towards its commission.

An attempt is said to be a direct movement towards the commission of an offence soon after the preparations. It is an intentional preparatory action, which fails in its object because of circumstances independent of the person who seeks its accomplishment.

An attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. This is clear from the general expression attempt to commit an offence and is exactly what the provisions of Section 511 of the Indian Penal Code, requires ((Ramabai Nivrutti Chavan v. Nivrutti Nimbhaji Chavan & Others, 1988 (2) BomCR 161)).

Whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependant on the nature of the offence and the steps necessary to take in order to commit it. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. For an offence of an attempt to commit rape, the prosecution must establish that it has gone beyond the stage of preparation ((Rameshwar v. State of Haryana, AIR 1987 SC 713)).

The test for determining whether, the act constitutes an attempt or preparation, is whether the overt acts already done are such that, if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. But where the thing done is such that, if not prevented from extraneous cause would fructify into commission of an offence, it would amount to an attempt to commit that offence ((Malkiat Singh v. State of Punjab, AIR 1970 SC 713)). In order to constitute an offence,

  • there must be an intention to commit an offence;
  • some acts must have been done which would necessarily have to be done towards the commission of the offence; and
  • such acts must be proximate to the intended result

in other words, the acts must reveal, with reasonable certainty, in connection with other facts and circumstances, and not necessarily in isolation an intention as distinguished from a mere desire or object to commit the particular offence ((State of Maharashtra v. Mohammad Yakub, AIR 1980 SC 1111)).

However, it must be noted that, Section 511 of the Indian Penal Code will not apply to cases of attempt made punishable under some other specific sections of the Indian Penal Code, viz.

  • Attempting to wage war against the Government of India (Section 121)
  • Attempt wrongfully to restrain the President and other higher officials with intent to induce or compel them to exercise or refrain from exercising any of their lawful powers (Section 124)
  • Attempt to rescue State prisoners or prisoners of war (Section 130)
  • Attempt by a public servant to obtain an illegal gratification (Section 161)
  • Attempt to use as true, evidence known to be false (Section 196)
  • Attempt to commit murder (Section 307)
  • Attempt to commit suicide (Section 309)
  • Attempt to commit robbery (Section 393)
  • Attempt by one of many joint house breakers by night to cause death or grievous hurt (Section 460)

Offences relating to marriage under IPC

Section 493 to 498 A, of the Indian Penal Code, 1860 deals with the offences relating to marriage. Section 493 of Indian Penal Code deals with the offence of Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.

By virtue of Section 493, every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Thorough reading of above mentioned Section makes it clear that, in order to constitute an offence under Section 493 of IPC, it shall have following two essential ingredients;

  1. Deceit causing a false belief in the existence of a lawful marriage; and
  2. Cohabitation or sexual intercourse with the person causing such belief

Section 494 of Indian Penal Code deals with the offence of Marrying again during lifetime of husband or wife. By virtue of said section, whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

However, Section 494 does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Further, whoever commits the same offence with concealment of former marriage from person with whom subsequent marriage is contracted, the fact of the former marriage, shall be punished under Section 495 of Indian Penal Code, with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 496 of Indian Penal Code deals with the offence of Marriage ceremony fraudulently gone through without lawful marriage. By virtue of Section 496 of IPC whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

By virtue of Section 497 of Indian Penal Code, whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Section 498 of Indian Penal Code deals with the offence of Enticing or taking away or detaining with criminal intent a married woman. By virtue of Section 498 of Indian Penal Code, whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

By virtue of Section 498 A of Indian Penal Code, whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. For the purpose of this Section, the term “cruelty” means;

  1. any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
  2. harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

This is one of the Sections in the Indian Penal Code, which is widely misused. Read more on the misuse of sexual harassment laws in India.

Writ of Habeas Corpus and Indian Constitution

Writ of habeas corpus is issued in the form of an order calling upon a person who has detained another person to bring that person before the court to let it know under what authority he has detained that person.

Habeas Corpus is a process by which a person who is confined without legal justification may secure a release from his confinement. It is an effective way of immediate release from unlawful detention, whether in prison or in private custody. For the purpose of this Writ, physical detention is not necessary to constitute detention. Control and custody are sufficient ((Cox v. Haikes, (1819) 15 AC 506)).

Writ of habeas corpus is in the form of an order issued by the High Court calling upon the person by whom a person is alleged to be kept in confinement to bring such person before the court and to let the court know on what ground the person is confined. However, production of the body of the person alleged to be harmfully detained is not essential before an application for Writ of habeas corpus can be finally heard and disposed of by the Court. Production of the body of a person alleged to be wrongfully detained is ancillary to the main purpose of the Writ in securing the liberty of the subject illegally detained ((Kanu Sanyal v. District Magistrate, AIR 1973 SC 2684)).

An application for the Writ of habeas corpus can be filed by the person who is in confinement OR any other person on his behalf. However, all such applications shall accompany an affidavit stating the nature and circumstances of the confinement. General procedure is that, if the court considers that aprima facie case for granting the prayer has been made out, it issues a rule nisi calling upon the opposite party to show cause on a day specified, why an order granting the Writ should not be made.

A detention is not prima facie illegal if following conditions are satisfied;

  1. Detention should be in accordance with the procedure established by law ((See Article 21, of Indian Constitution)).
  2. It must not infringe any conditions laid down in the Article 22 of the Indian Constitution. Hence, if a person is not produced before the Magistrate within 24 hours of his arrest, he may be released on a Writ of habeas corpus.
  3. Legislature, which enacts the law depriving a man his personal liberty, must be empowered to make that law under Article 246 of the Indian Constitution ((Distribution of legislative powers)).

Writ of habeas corpus lies, if the malafide of the detaining authority is established OR if the detention is malafide and is made for a collateral OR with ulterior purpose ((AK Gopalan v. State of Madras, AIR 1950 SC 27)). However, in all these cases, burden of proof lies on the petitioner ((Prabhu Narain Singh v. Superintend, Central Jail, ILR (1961) 1 All 427)). However, a person is not entitled to be released on a petition of habeas corpus, if he could not prove the illegal detention or restraint.

In a case of habeas corpus, if the detaining authority pleads that, detenu has already released, however, if the detenu is traceable and if the release is found to be false, then court may also order for compensation ((Postsangbam Ningol Thokchom v. General Officer Commanding, AIR 1997 SC 3534)). No Writ of habeas corpus will lie in regard to a person who is undergoing imprisonment on a sentence of a court in a criminal trial on the ground of the erroneousness of the conviction ((Janardan Reddy v. State of Hyderabad, AIR 1951 SC 217)).

Writ of habeas corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out. But this does not mean that, the writ cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent to whom the court gives such custody ((Elizabeth Dinshaw v. Arvind M Dinshaw, AIR 1987 SC 3)).

However, a person has no right to present successive applications for habeas corpus to different judges of the same court ((Ghulam Sarwar v. Union of India, AIR 1967 SC 1335)). However, a fresh petition under Article 32 would be competent ((Id.)).

Writ of mandamus and Indian Constitution

Writ of mandamus is an order by the superior court commanding a person or a public authority to do or forbear to do something in the nature of public duty. In other words, it is a judicial remedy which is in the form of an order from a superior court to any government, court, corporation, or any public authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing as the case may be and which is in the nature of a public duty and certain cases of a statutory duty ((AT Markose, Judicial Control of Administrative Action in India, p. 364)).

Writ of mandamus is a writ of most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation, or an inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Purpose of Writ of mandamus is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, where all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where although there is an alternative legal remedy, yet the mode of redress is less convenient beneficial and effectual ((Halsbury’s Laws of England, 4th Edition, Vol. I Para 89)). However, a Writ of mandamus cannot be issued to compel an authority to do something against the statutory provision ((Hope Textiles Ltd. v. Union of India, 1995 Supp (3) SCC 199)).

No one can ask for a mandamus without a legal right. There must be a judicially enforceable as well as legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it ((Mani Subrat Jain v. State of Haryana, AIR 1977 SC 276)).

An applicant praying for a Writ of mandamus must show that, he has a legal right to compel the opponent to refrain from doing something. In other words, there must be in the applicant a right to compel the performance of some duty cast on the opponent ((Union of India v. Orient Enterprises, (1998) 3 SCC 501)).

The duty sought to be enforced must have three qualities, viz.

  1. It must be a duty of public nature. A duty will be of a public nature if it is created by the provisions of the Constitution ((Rashid Ahmed v. Municipal Board, AIR 1950 SC 610))OR of a statute ((State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610))OR some rule of common law ((Sharif Ahmed v. Regional Transport Authority, AIR 1978 SC 209)). A public duty need not, however be always statutory ((Andi Mukta Sadguru Shree SMVSJMS Trust v. VR Rudani, AIR 1989 SC 1607)). A duty corresponding to a private right is not a duty which can be enforced by mandamus.
  2. The duty must be imperative and not discretionary one. In other words, mandamus lie to compel the performance of an absolute duty. The office of a mandamus is to compel the performance of a plain and positive duty. It is issued upon the application of one who has a clear right to demand such performance, and who has no other adequate remedy ((Robert L. Cutting, Re, 94 US 14)).
  3. No mandamus will lie where the duty is of a discretionary in nature. It is issued to enforce the performance of ministerial functions and it must be issued when, there is no alternative remedy available to enforce such functions ((Sharif Ahmed v. Regional Transport Authority, AIR 1978 SC 209)).

An application of mandamus will not lie for an order of reinstatement to an office which is essentially of a private character, nor can such application be maintained to secure performance of obligations owed by a company registered under the Companies Act towards its workmen or to resolve any private dispute ((Praga Tools Corporation v. CA Imanual, (1969) 1 SCC 585)).

It is not necessary that, the person or authority on whom the statutory duty is imposed need be a public authority. A mandamus can issue, for instance to an official of a society to compel him to carry out the terms of the statute under or by which their organisation is constituted or governed or to carry out the duties placed on them by the statutes authorising their undertakings. Writ of mandamus will also lie against companies constituted for the purpose of fulfilling public responsibilities ((Praga Tools Corporation v. CA Imanual, (1969) 1 SCC 589)).

Writ of mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a right or sufficient legal interest ((Praga Tools Corporation v. CA Imanual, (1969) 1 SCC 1306)), or whose rights are directly and substantially invaded and are in imminent danger of being invaded ((State of Kerala v. Lakshmikutty, AIR 1987 SC 331)).

However, Writ of mandamus cannot be issued to the State Government to prevent it from considering a bill which is alleged to have been in violation of Constitution. Similarly, no court can issue a mandate to any Legislature to enact any specific law ((Chote Lal v. State of Uttarpradesh, AIR 1951 All 228)).