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CIA - 1



1. Explain the importance and scope of the Right of the Accused to be defended by
a Council of his choice?

The Right of accused to be defended by a council of his choice can be answered in the light
of Article 22 read along with Section 303 of Code of Criminal Procedure, 1973.
Article 22(1) reads No person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right
to consult, and to be defended by, a legal practitioner of his choice. Prima facie reading of
the above article clearly establishes that it is a Fundamental Right guaranteed by the
Constitution of India. In Article 22 (1) the opportunity for securing services of lawyer is alone
guaranteed. The right does not impose a duty on the states to provide legal aid as such but
only binds the state to allow all reasonable facilities to persons detained or arrested. It has
been accepted that the right to consult a council arises soon after the arrest has taken place. In
Joginder Kumar v. State of U.P.1 the Supreme Court held that right of arrested person upon
request, to have some one informed about his arrest and right to consult privately with
lawyers are inherent in Articles 21 and 22 of the Constitution.
Secion 303 of Cr.P.C. reads Any person accused of an offence before a Criminal Court, or
against whom proceedings are instituted under this Code, may of right be defended by a
pleader of his choice. It compliments article 22(1) as mentioned above. The Supreme Court
held that it is required, that the defendant in the case shall expressly ask for a Counsel of his
choice.2 In the above case, the Supreme Court has interpreted the use of this section very
technically based on no express request from the defendants side. But as a whole both Article
22(1) and Section 303 of Cr.P.C extend an important right to persons arrested and protects
them from maladministration of police and/or other investigative authorities as the case

1 A.I.R. 1994 S.C. 1349

2 Ram Sarup v. Union of India, A.I.R. 1965 S.C. 247.

2. Can an able bodied man, who is without having any property or employment be
ordered to pay maintenance to his wife?
The above question can be answered in the light of the concept of Sufficient means, which
states that the person against whom the claim is made must have sufficient means based on
which alone maintenance can be allowed. The words having sufficient means do not signify
only visible means of such things as real property, income, revenue, estate or employment.
Besides pecuniary resources, it has its reference to the earning capacity of the individual as
well.3 In the Gunni Bai v Babulal 4 case it was held that an able bodied man who is healthy
and capable of employment shall be construed of being able to maintain his wife and children
even though he has been declared insolvent or lacks any property. It has also been accepted
that the burden of proof is on the applicant. The burden of proof not be strict and heavy in
nature can be based on preponderance of probabilities. Once it has been established, it is
upon the defendant to prove otherwise i.e. the man has no sufficient means to provide
maintenance. Also the man from whom maintenance is claimed shall be earning in his own
right and his relatives incomes cannot be considered in considering whether he has sufficient
means or not.
Thus an insolvent or bankrupt person will be required to pay maintenance to wife if he is an
able bodied man. In Prabulal v Paramatibai 5 it was held that the incapacity of a person from
getting a job does not discharge him from the responsibility of paying maintenance to his
wife. In India marriage is treated as a sacrament and wife is treated to be the responsibility of
the husband, hence until and unless there is a physical incapacity no able bodied man can
escape the above duty. This ensures that a person does not escape the duty and leave his wife
untendered after divorce.

3 Chander Prakash v. Shfia Rani, AIR 1968 Del 174.

4 153 Cr.L.J. 1164
5 963 Cr.L.J. 868.