Thursday, November 11, 2010

One of my memorable cases.

One of my memorable cases.
By Lawyer Asad

In every trade, calling, service & profession there're something very note worthy and memorable. These memories stays with us for life long. Ask any footballer or cricketer, he'll admit that a particular goal or goals were the best and he still remembers it. Such a Cricketer also confess about a special century made under a very adverse condition and he has treasured it in his memory.
The life of a Lawyer is as those sportsmen. The only difference is that in a sports or a game of soccer or cricket there's a term called "draw" where score of both the teams are equal and none wins. But in the arena of law its like the old Spartans, someone has to win. No draw.
In these 30 years of experience as a Lawyer and still more years to come I've won many a cases. Its not that those were good cases or the opponent party lawyer was weak but on the contrary my deck was totally empty and my opponent was a very skilled crafts man. Still it was persistence, waiting for the opportunity, the right moment and above all a sound commonsense backed by the capacity of lightning fast thinking has come into play and it ultimately turned the table in my favour.
Please don't think that this article is for the purpose of praising myself or to present myself as the most successful lawyer. On the contrary its for the purpose of driving home the point that when a person wants a thing from the core of his heart and won't stop until he gets it then impossible things can be done and achieved.
I remember the advice of my most favourite teacher in Law College, Mr. Gopal Seth. He was an LL. M and also a Barrister-in-Law but loved to teach rather than practice pedagaugy before the High Court Judges. He was more a friend than a teacher. Always cladded in spotless white trousers and shirt a man of vast knowledge.
While taking classes he'd say, listen boys I don't mind your being unmindful in studies or doing your assignments but when in your professional life you'll see that if you don't study then you won't be able to win cases and if you won't win cases then clients will not pay you fees. Then you'll what study is called.
It was the most sound advice I've received in my life.

During the first ten years of my practice life I was like a genral practitioner (GP) and dealt with all kinds of cases, Civil, Criminals, etc. Thereafter, a trend in me was observed and I decided that its the time I shift my attention all other branches of law to the Civil matters and specially those which are non-convensional civil matters.
I started my practising in Burdwan Judges' Court from July, 18th, 1980. A fresh young man of 25 with a heart full of hope, aspirations and dreams.
It was sometime in the middle of 1987 a man approached my Clerk and enquired about me, my family, etc. The life was tough for a Junior Lawyer and every new face appearing on the door of the private office made it think of a new client. However, I felt irritated at the questions of this man, who sold drinking tea and other snacks in a road side kiosk at the outskirt of the town. Lastly, I was tempt to say him if he's trying to give his daughter into marriage with me for which making such enquiries! If he wants me to appear and contest in his cases then the discussion should be kept limited to it. Otherwise he's free to move his arse!
The "case" turned out as such. His elder daughter was married 7/8 years ago. Out of the wedlock a son was born. When that son was only about a year or less old then she was divorced by her husband.
In India there's no codified Mohammedan law but the law as it is enacted in the verses of the Quran and ratified by the Muslim Personal Law Board as well as an Act of the Parliament, namely, Shariat Act, 1937, governs these matter relating to inheritence, marriage, divorce, custody, waqf, etc.
We lawyers generally follow the Mulla's Introduction to the Mohammedan Law. This book along with book written by Justice Syed Amir Ali & others were given much reliance.
Now after divorcing this girl, the man has married again. Whereas the girl was staying at her father's shelter and raising her son. She had not married again.
When her son was two years old and playing alone on a place nearby his unscrupulous father came and took away the boy with him. He didn't even bother to inform his ex wife nor her father. The girl was like a mad woman and for the past five years she's running from pillar to post for recovering her son from the custody of his father and keep her son to herself.
On the advice of some counsel they has filed an application for Search Warrant under the provision of the Criminal Procedure Code. But it was of no help. Several other cases were filed but none was the appropriate one to bring back the minor kid to his mother.
After completion of formalities and retainership I suggested to withdraw all those cases and to file only one case. And I'll file that case. Her father became puzzled at my words but I had sternly chewed out every word to convey the meaning to his "tea-selling" liquid brain that I'm the Boss and it'd be done as I'd wish it to be. Of course the entire responsibility of the matter would be on me.
There's an Act, named, the Guardians & Wards Act, 1925 and this Act deals with the matters relating to custody, guardianship, disposal of minor's property, interim custody and related matters.
This statute was equally applicable for Hindu and Muslim minor children. The only criteria was the age of the minors for compulsory custody of the mother.
I'll have to prove that the boy was within the age of seven years. Thats the prescribed age for a Muslim boy to stay in the custody of his mother. And for Muslim girls till they reach the age of puberty.
For Hindus, both boys and girls, its five years.
I had filed a case before the District Judge, Burdwan under Section 25 of the Guardians & Wards Act for custody of the minor son by the mother. Together with an application u/s 12 for interim custody.
Notice was served upon the father of the minor and he appeared with one of the famous lawyer of the Court. His mere presence was unnerving for a Junior Advocate like me. Anyways, I was confident about my case and prepared it to the best of my abilities.
After the first hearing the case was transferred to the Court of Additional District Judge, 2nd Court, Burdwan for further hearing and disposal. It was later learnt that the Lawyer for the otherside pulled the string as the Judge concerned was his classmate. My heart, inspite of lavish vocal tonic from me, started sinking.
It was a sleepless night before the day of the hearing; spending much of the time tossing, turning, thinking of strategies in bed. Earl Stanley Gardner's Perry Mason nor his beautiful PA could come to my rescue.
All I could figure out that I've do something dramatical (of course in the periphery of law) to take the air out of the sail of the opponent lawyer. Judge kept the application filed for interim custody at abeyance and had taken up the entire case for hearing for speedy disposal.
As soon as Justice Mr. Ganguly took his seat I raised myself to make my submissions. I stated that it has been almost three years the son has been kept away from his mother. Your Honour can well understand the mental condition of the mother because it was her only son with whom she was living on the hope for a bright future. So if your Honour be pleased to allow the minor to be with his mother then my client (mother) would be very much grateful to your Honour.
The Judge nodded with agreement with me but the opponent lawyer instantly gained on his feet and opposed. His objection was overruled.
The father was asked to take the minor to the mother. Mother and son, united after a gap of three years, were very moving for both of them. The minor started crying loudly. Mr. Hossain, the Counsel for the father, started protesting on the ground that it'd be bad for the minor and his tender mind if he cries incessantly.
Justice Mr. Ganguly ordered the Court Orderly to take the mother and the son to his private ante-chamber, away from the curious eyes and the crowd in the court room.
After five minute or so Justice Mr. Ganguly addressed the opponent lawyer, Mr. Hossain can you hear the crying of the minor?
Mr. Hossain had to admit that he couldn't hear.
This first round victory for my client had been encouraging for me and my client.
An important lesson was learnt; Judges are also human beings and appealing to their emotions pay!
As the applicant my client, mother of the minor boy, has deposed her evidence. I had not called for any other witness.
Still the age of the minor was to be proved. As they were rural people so Birth Certificate or recording of the birth at its proper time was not done. Most of the children were delivered at home under the care of some midwife or untrained village nurses.
The opponent side claimed that the boy was more than seven years of age and we tried our best to keep it within five.
After our evidence was over, the father of the minor had deposed and cross examined by me.
Justice Mr. Ganguly opined that the OP husband need not call for any further witness and tried to schedule the case for argument.
But Mr. Hossain, now visibly in back foot, wanted the grandmother of the minor as his witness.
Well, if the Learned Counsel thinks so, quirped Justice Ganguly.
The lady in her late 40s came to the witness box and deposed after taking the oath.
After the examination-in-chief she was now under my control for cross-examination.
Let me tell you something about these Muslims who live in rural areas of Bengal. Mostly illeterate and stay fertile till their 50s.
I had no time to consult my client about the back ground and antecedents of her ex mother-in-law, as she was already on the witness box waiting for my questions.
Cross-examinations are very important in trial courts. A lawyer can study books containing the Art of Cross-Examination as I had done, virtually swallowed every words of the 2 Vols of Aiyar & Aiyar's Art of Cross-Examination. But there's always a vast difference between the theory and practice. And I was not that much experienced too.
Still with the counsel and encouragement of my self-confidence I had faced that woman. In my mind only one theme was ringing, I'll have to be polite with this witness and she'd be taken into my confidence so that she thinks that I'm not going to do any harm to her and out of that mental condition would disclose the truth.
After few primary questions I asked her, is it true that in villages still the Mother-in-law and the daughter-in-law give birth to childs simultenously?
She replied yes it is true.
I asked her, have you had the same experience with your ex daughter-in-law of giving birth to kids simultenously?
She was feeling enthusiastic as she's given the importance and being requested to detail her experience about the society and life in rural areas. So instantly replied, yes I had. In fact my daughter was born six months prior to my grand son.
And what is the age of your daughter now dear lady?
Oh she's just five years old!
No further question your Honour!
Justice Ganguly remarked wryly, you see Mr. Hossain I told you not to adduce any further evidence.
Its very important for a lawyer to know when to stop. In course of my experience as a trial court lawyer I've seen its more important to know when to stop rather than when to speak.
During argument I had put my heart in my mouth and had delivered a speech filled with emotion, accentuating the virtues of a single mother to raise her children in the absence of the father, for two hours.
The only draw back of my case was plugged. The age of the minor was confirmed at four and a half years by his own grand mother.
Justice Mr. Ganguly decreed the case in favour of my client, granting the custody of son to her.
Justice Ganguly also assured that both mother and son reach home safely so he had order his personal Security & Body Guard to escort them to home.
Though I've won many a cases still this case was a turning point in my career as a lawyer because I was a Junior Lawyer and trying to find the strong ground beneath my feet.
This case will be in my memory so long I'll live.