As one of several measures to punish gun possession by persons engaged in crime, Congress made it a discrete offense to use, carry, or possess a deadly weapon in connection with “any crime of violence or drug trafficking crime.” 18 U. S. C. §924(c)(1). The minimum prison term for the offense described in §924(c) is five years, §924(c)(1)(A)(i), in addition to “any other term of imprisonment imposed on the [offender],” §924(c)(1)(D)(ii). The two consolidated cases before us call for interpretation of §924(c) as that provision was reformulated in 1998.
Abbott and Gould read §924(c)’s “except” clause to secure them against prison time for their §924(c) convictions. They claim exemption from punishment under §924(c) because they were sentenced to greater mandatory minimum prison terms for convictions on other counts charging different offenses. The “except” clause, they urge, ensures that §924(c) offenders will serve at least five years in prison. If conviction on a different count yields a mandatory sentence exceeding five years, they maintain, the statutory requirement is satisfied and the penalty specified for the §924(c) violation becomes inoperative.
The courts below, agreeing with the Government’s construction of the statute, read §924(c)(1) as independently requiring a sentence of at least five years, tacked onto any other sentence the defendant receives. The “except” clause refers to “a greater minimum sentence … otherwise provided.” “[O]therwise provided” for what, the courts below asked; their answer, for conduct offending §924(c), i.e., possessing a firearm in connection with a crime of violence or drug-trafficking crime.
A defendant is not spared from a separate, consecutive sentence for a §924(c) conviction, the lower courts determined, whenever he faces a higher mandatory minimum for a different count of conviction. Instead, according to the courts below and the Government here, the “except” clause applies only when another provision—whether contained within or placed outside §924(c)—commands a longer term for conduct violating §924(c). For example, the mandatory minimum sentence for a §924(c) offense is five years, but if the firearm is brandished, the minimum rises to seven years, and if the firearm is discharged, to ten years. §924(c)(1)(A)(i), (ii), (iii). A defendant who possessed, brandished, and discharged a firearm in violation of §924(c) would thus face a mandatory minimum term of ten years.
We hold, in accord with the courts below, and in line with the majority of the Courts of Appeals, that a defendant is subject to a mandatory, consecutive sentence for a §924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction. Under the “except” clause as we comprehend it, a §924(c) offender is not subject to stacked sentences for violating §924(c). If he possessed, brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22. He is, however, subject to the highest mandatory minimum specified for his conduct in §924(c), unless another provision of law directed to conduct proscribed by §924(c) imposes an even greater mandatory minimum.
Gould’s indictment listed seven separate drug and firearm charges. In return for Gould’s agreement to plead guilty, the Government dropped all but two: one §924(c) offense and one predicate drug-trafficking crime. The latter, for conspiracy to possess with intent to distribute cocaine base, carried a ten-year mandatory minimum under §841(b)(1)(A). Firearm involvement was not an element of that offense. The United States District Court for the Northern District of Texas imposed a sentence of 11 years and 5 months for the trafficking offense and an additional five years for the §924(c) violation, for a total of 16 years and 5 months.
On appeal, Abbott and Gould challenged the five-year consecutive sentence each received under §924(c). Abbott urged that ACCA’s 15-year mandatory minimum triggered §924(c)’s “except” clause, because ACCA qualified as “[an]other provision of law” that “provided” a “greater minimum sentence.” Gould said the same of the ten years commanded by his predicate trafficking crime.
The United States Court of Appeals for the Third Circuit affirmed Abbott’s sentence, concluding that the “except” clause “refers only to other minimum sentences that may be imposed for violations of §924(c).” United States v. Abbott, 574 F. 3d 203, 208 (2009). Gould fared no better before the Fifth Circuit. United States v. Gould, 329 Fed. Appx. 569, 570 (2009) (per curiam). That court’s precedent already confined the exception to conduct offending §924(c). United States v. London, 568 F. 3d 553, 564 (2009). To resolve the division among the Circuits on the proper construction of §924(c)’s “except” clause,[Footnote 2] we granted certiorari in both cases and consolidated them for argument. 559 U. S. ___ (2010).
Congress enacted 18 U. S. C. §924(c) as part of the Gun Control Act of 1968, 82 Stat. 1213. The “except” clause, which did not appear in §924(c) as originally composed, was introduced by statutory amendment in 1998. See An Act [t]o throttle criminal use of guns, 112 Stat. 3469. We begin by setting out §924(c), first as it read before 1998, then as amended that year.
“Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) … , uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to life imprisonment without release. Notwithstanding any other provision of law, … the term of imprisonment imposed under this subsection [shall not] run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried.” §924(c)(1) (1994 ed.).
If this pre-1998 text governed, all agree, separate counts of conviction would have no preemptive force, and Abbott and Gould would have been correctly sentenced under §924(c). The question we confront is whether Congress’ 1998 reformulation of §924(c) rendered the sentences imposed on Abbott and Gould excessive.
The 1998 alteration responded primarily to our decision in Bailey v. United States, 516 U. S. 137 (1995). In proscribing “use” of a firearm, Bailey held, §924(c)(1) did not reach “mere possession” of the weapon. Id., at 144. Congress legislated a different result; in the 1998 revision, “colloquially known as the Bailey Fix Act,” the Legislature brought possession within the statute’s compass. United States v. O’Brien, 560 U. S. ___, ___ (2010) (slip op., at 14) (internal quotation marks omitted).
The leading portion of the “except” clause, which now prefaces §924(c)(1)(A), refers to a “greater minimum sentence … otherwise provided by this subsection,” i.e., by §924(c) itself; the second segment of the clause refers to a greater minimum provided outside §924(c) “by any other provision of law.” Beyond debate, the latter instruction does not relieve a §924(c) offender of additional punishment “simply because a higher mandatory minimum sentence exists in the United States Code.” Brief for Petitioner in No. 09–479, p. 19 (hereinafter Abbott Brief). Were it otherwise, the statute’s ascending series of minimums, set out in §924(c)(1)(A)–(C), would have no work to do; the only possible §924(c) sentence would be the Code’s highest—life. The “except” clause, it is therefore undisputed, “has to have some understood referent to be intelligible.” United States v. Parker, 549 F. 3d 5, 11 (CA1 2008). What should that referent be? As we comprehend the clause, to determine whether a greater minimum sentence is “otherwise provided … by any other provision of law,” the key question one must ask is: otherwise provided for what? As earlier noted, see supra, at 3, most courts, in line with the courts below and the Government, have answered: for the conduct §924(c) proscribes, i.e., possessing a firearm in connection with a predicate crime.
Abbott and Gould disagree and offer diverse readings. Gould principally would apply the “except” clause to preclude a §924(c) sentence whenever “any of a defendant’s counts of convictio[n] at sentencing” require a greater minimum sentence. Brief for Petitioner in No. 09–7073, p. 14 (hereinafter Gould Brief).
In lieu of Gould’s position that any greater minimum sentence on a different count of conviction will do, Abbott advances a somewhat narrower “transactional approach.” Any sentence imposed on the defendant fits the bill, he urges, so long as the sentence was imposed “because of the criminal transaction that triggered §924(c) in the first place.” Abbott Brief 10. Accord United States v. Williams, 558 F. 3d 166, 171 (CA2 2009).
Abbott also tenders an alternative construction: The minimum sentence “otherwise provided” must be for a firearm offense—for example, Abbott’s felon-in-possession charge—involving the same firearm that triggered §924(c).[Footnote 4] Conceding that this reading is “not commanded by the [statute’s] plain language,” Tr. of Oral Arg. 24, Abbott asserts that it advances §924(c)’s goal—to discourage bearing arms in furtherance of crime—while avoiding the imposition of “two consecutive mandatory minimum sentences for the single use of a single firearm,” Abbott Brief 47 (emphasis omitted).
The three interpretations just described share a common premise. In adding the “except” clause in 1998, all three posit, Congress adopted a less aggressive mode of applying §924(c), one that significantly reduced the severity of the provision’s impact on defendants. Like the courts below, we regard this premise as implausible. As earlier observed, see supra, at 5–6, the pre-1998 version of §924(c) prescribed a discrete sentence—punishment to be imposed regardless of the sentence received for the predicate crime or any separate firearm conviction. Abbott and Gould think the “except” clause installed, instead, a modest scheme designed simply to ensure that all §924(c) offenders “serve at least 5 years in prison.” Gould Brief 5; see Abbott Brief 10. We doubt that Congress meant a prefatory clause, added in a bill dubbed “An Act [t]o throttle criminal use of guns,” to effect a departure so great from §924(c)’s longstanding thrust, i.e., its insistence that sentencing judges impose additional punishment for §924(c) violations.
Were we to accept any of the readings proposed by Abbott or Gould, it bears emphasis, we would undercut that same bill’s primary objective: to expand §924(c)’s coverage to reach firearm possession. In 1999, more than half of those who violated §924(c) in connection with a drug-trafficking offense received a mandatory minimum of ten years or more for that trafficking offense. Letter from Glenn R. Schmitt, United States Sentencing Commission, to Supreme Court Library (Nov. 10, 2010) (available in Clerk of Court’s case file). Congress, however, imposed only a five-year minimum for firearm possession “in furtherance of” a drug offense. As construed by Abbott and Gould, the amendment to include firearm possession as a §924(c) offense would spare the most serious drug offenders from any discrete punishment for the very firearm activity the amendment targeted. “We are disinclined to say that what Congress imposed with one hand … it withdrew with the other … .” Logan v. United States, 552 U. S. 23, 35 (2007).
Abbott’s and Gould’s proposed readings, moreover, would result in sentencing anomalies Congress surely did not intend. We note first that §924(c), as they construe it, would often impose no penalty at all for the conduct that provision makes independently criminal. Tr. of Oral Arg. 52. For example, an individual who sold enough drugs to receive a ten-year minimum sentence under §841(b)(1)(A) could, so far as §924(c) is concerned, possess or even brandish a gun without incurring any additional punishment.
Stranger still, under the Abbott and Gould readings, the worst offenders would often secure the shortest sentences. Consider two defendants convicted of trafficking in cocaine. The first possesses 500 grams and is subject to a mandatory minimum of five years, §841(b)(1)(B); the second possesses five kilograms and is subject to a mandatory minimum of ten years, §841(b)(1)(A). Both brandish firearms, calling for a sentence of seven years under §924(c)(1)(A)(ii). The first defendant, under all readings, will spend at least 12 years in prison. The second defendant’s ten-year drug minimum, according to Abbott and Gould, triggers the “except” clause and wipes out that defendant’s §924(c) penalty; though the more culpable of the two, the second defendant’s minimum term would be just ten years. Brief for United States 40. Like the Third Circuit below, “[w]e are confident that Congress did not intend such a bizarre result.” 574 F. 3d, at 209.
Abbott’s alternative construction, which homes in on other firearm offenses, gives rise to similar oddities. On this reading, Abbott’s 15-year ACCA sentence for being a felon-in-possession would preempt his five-year §924(c) sentence, and his minimum term would be 15 years, rather than 20.[Footnote 5] But if ACCA were not at issue, Abbott’s minimum term would be the same 15 years: his five- year §924(c) sentence on top of his ten-year drug sen- tence. Qualification as a career criminal would carry no consequence.
Nor does Abbott’s second construction necessarily promote more equitable outcomes. Suppose, for example, that a career criminal sold drugs together with a first-time offender, and both brandished firearms in the process. The first-time offender, lacking a felon-in-possession conviction, would serve a seven-year §924(c) sentence on top of a ten-year drug sentence, for a total of 17 years. But the career criminal’s ACCA sentence would preempt the §924(c) sentence; he would serve only 15 years.
Abbott and Gould respond that sentencing judges may take account of such anomalies and order appropriate adjustments. We observe first that no correction or avoidance appears possible for the anomaly that, while §924(c) “defines a standalone crime,” a §924(c) sentence would be wiped out by a wholly separate and independent conviction. United States v. Easter, 553 F. 3d 519, 526 (CA7 2009) (per curiam) (“A determination of guilt that yields no sentence is not a judgment of conviction at all.”). We do, however, agree that a judge exercising discretion under 18 U. S. C. §3553(a) “would [not] be required to sentence” a more culpable defendant to a lesser term; the judge could increase that defendant’s sentence for a predicate crime to make up for §924(c)’s failure to effect any enlargement of the time served. United States v. Whitley, 529 F. 3d 150, 155 (CA2 2008). But we doubt Congress had such a cure in mind in 1998, seven years before we held, in United States v. Booker, 543 U. S. 220 (2005), that district courts have discretion to depart from the Sentencing Guidelines on the basis of §3553(a).
Abbott and Gould alternatively contend that Congress could have anticipated that the then-mandatory Guidelines would resolve disparities. See Abbott Brief 32–35; Gould Brief 30–32. On this view, the “except” clause ensures that a §924(c) offender incurs a minimum sentence of considerable length; the Guidelines would then control, elevating that sentence based on firearm possession or use. See United States Sentencing Commission, Guidelines Manual §§2D1.1(b)(1), 2K2.1(b)(5) (Nov. 1998) (increasing offense level for defendants who use or possess firearms in course of violent crime or drug trafficking); §§2D1.1(b)(1), 2K2.1(b)(6) (Nov. 2009) (same).
We do not gainsay that Abbott and Gould project a rational, less harsh, mode of sentencing. But we do not think it was the mode Congress ordered. Congress expressly rejected an analogous scheme in 1984, when it amended §924(c) in the same law that created the Sentencing Commission and the Guidelines. Pub. L. 98–473, 98 Stat. 1987, 2138. Four years earlier, in Busic v. United States, 446 U. S. 398, 404 (1980), we had read §924(c) to impose no penalty when the predicate crime itself prescribed a firearm enhancement; similarly, Abbott and Gould now read §924(c) to impose no penalty when the Guidelines prescribe a firearm enhancement to the predicate sentence. The 1984 legislation “repudiated” Busic, clarifying that §924(c) applied even when the predicate crime already “provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device.” United States v. Gonzales, 520 U. S. 1, 10 (1997) (internal quotation marks omitted).
The “except” clause, we note, would have been a most haphazard way to achieve a Guidelines-driven rollback of §924(c). If Congress wanted to ensure that §924(c) offenders “receive at least five years in prison,” and to rely on the Guidelines for the rest, Abbott Brief 10, there was an obvious solution: Congress could have excised all prescriptions ordering that §924(c) sentences shall run consecutively to other sentences. Without such a requirement, all defendants would benefit from a minimum-plus-Guidelines regime—not just the most culpable offenders. Congress did not adopt that obvious solution, we think, because it did not want the Guidelines to supplant §924(c).
“[I]f another provision of the United States Code mandates a punishment for using, carrying, or possessing a firearm in connection with a drug trafficking crime or crime of violence, and that minimum sentence is longer than the punishment applicable under §924(c), then the longer sentence applies.” Brief for United States 17.
This reading gives effect to the statutory language commanding that all §924(c) offenders shall receive additional punishment for their violation of that provision, a command reiterated three times. First, the statute states that the punishment specified in §924(c)(1) “shall” be imposed “in addition to” the penalty for the predicate offense. §924(c)(1)(A). Second, after Busic, §924(c) demands a discrete punishment even if the predicate crime itself “provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device.” Ibid. Third, §924(c)(1)(D)(ii) rules out the possibility that a §924(c) sentence might “run concurrently with any other term of imprisonment.” We doubt that Congress, having retained this thrice-repeated instruction, would simultaneously provide an exception severely limiting application of the instruction. Cf. Greenlaw v. United States, 554 U. S. 237, 251 (2008) (“We resist attributing to Congress an intention to render a statute so internally inconsistent.”).
Interpreting the “except” clause to train on conduct offending §924(c) also makes sense as a matter of syntax. The “except” clause is not a standalone enactment, or even a standalone sentence. Rather, it precedes and qualifies §924(c)(1)(A)’s principal clause, which punishes the possession of a firearm in connection with specified predicate crimes. The “grammatical and logical scope” of a proviso, we have held, “is confined to the subject-matter of the principal clause” to which it is attached. United States v. Morrow, 266 U. S. 531, 534–535 (1925). As a proviso attached to §924(c), the “except” clause is most naturally read to refer to the conduct §924(c) proscribes. Accord United States v. Villa, 589 F. 3d 1334, 1343 (CA10 2009).
There is strong contextual support for our view that Congress intended the “except” clause to serve simply as a clarification of §924(c), not as a major restraint on the statute’s operation. At the same time Congress added the “except” clause, it made the rest of §924(c) more complex. The 1998 revision divided the statute’s existing sentencing prescriptions into four paragraphs in lieu of one, and added new penalties for brandishing and discharging a firearm. §924(c)(1)(A)–(D). We know that Congress thought the restructuring might confuse sentencing judges: Warding off confusion, all agree, was the Legislature’s sole objective in adding the initial part of the “except” clause, which covers greater minimums provided “by this subsection.” That portion of the clause instructs judges to pick the single highest sentence stipulated for a §924(c) violation within §924(c) itself, and not to stack ten years for discharging a gun on top of seven for brandishing the same weapon, whenever a defendant does both.
In referencing greater minimums provided by “any other provision of law,” we think, the second portion of the “except” clause simply furnishes the same no-stacking instruction for cases in which §924(c) and a different statute both punish conduct offending §924(c). Congress likely anticipated such cases when the “except” clause was framed in 1998, for the bill that reformulated the text of §924(c) did just one thing more: It amended 18 U. S. C. §3559(c) to command a life sentence when certain repeat felons are convicted of “firearms possession (as described in §924(c)).” Pub. L. 105–386, §1(b), 112 Stat. 3470.
Our interpretation, Abbott and Gould protest, renders the second part of the “except” clause effectively meaningless. Section 3559(c) is the only existing statute, outside of §924(c) itself, the Government places within the “except” clause. Tr. of Oral Arg. 32–35, 42–44.[Footnote 8] But §3559(c) already imposes a life sentence. A defendant would find little comfort in knowing that no §924(c) sentence, say five years or seven, will be tacked on to his §3559(c) life term.
As Courts of Appeals have observed, however, the “any other provision of law” portion of the “except” clause installs a “safety valve.” United States v. Studifin, 240 F. 3d 415, 423 (CA4 2001). It “allow[s] for additional §924(c) sentences,” akin to the sentence prescribed in §3559(c), that Congress may codify outside §924(c) “in the future.” See Abbott, 574 F. 3d, at 208. We do not regard this allowance as “implausible.” See Abbott Brief 22; Gould Brief 21. As the Government points out, “there is nothing unusual about Congress prescribing mandatory minimum penalties for substantive offenses codified in other provisions.” Brief for United States 22. See, e.g., §3559(c) (prescribing penalties for violations of, inter alia, 49 U. S. C. §46502 and 18 U. S. C. §§1111, 2111, 2113, and 2118); §3559(d) (prescribing penalties for violations of, inter alia, 18 U. S. C. §§2422, 2423, and 2251); 18 U. S. C. §924(e) (prescribing penalty for violation of §922(g)). See also 18 U. S. C. §924(j)(1) (prescribing a nonmandatory penalty of death for individuals who commit murder with a firearm in the course of a §924(c) offense).
Justice Kagan took no part in the consideration or decision of these cases.
Abbott received ten years on each drug-trafficking count. Those sentences, imposed concurrently, did not alter his total term of imprisonment and do not figure in this case.
Compare United States v. Williams, 558 F. 3d 166, 171 (CA2 2009) (clause covers “minimum sentences for … offenses arising from the same criminal transaction or operative set of facts”); and United States v. Almany, 598 F. 3d 238, 241 (CA6 2010) (clause applies whenever a defendant “is subject” to a greater mandatory minimum), with United States v. Parker, 549 F. 3d 5, 11–12 (CA1 2008) (clause does not cover sentences for predicate drug offenses but might cover sentences for ACCA firearm offenses); United States v. Villa, 589 F. 3d 1334, 1343 (CA10 2009) (clause covers only sentences for conduct offending §924(c)); United States v. Segarra, 582 F. 3d 1269, 1272–1273 (CA11 2009) (same); 574 F. 3d, at 208 (case below) (same); United States v. Easter, 553 F. 3d 519, 526 (CA7 2009) (per curiam) (same); United States v. Studifin, 240 F. 3d 415, 423 (CA4 2001) (same); United States v. Alaniz, 235 F. 3d 386 (CA8 2000) (same); and 329 Fed. Appx., at 570 (case below) (same).
“(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.
Because Gould’s only firearm-related offense is his §924(c) offense, Gould’s sentence would stand under Abbott’s alternative construction.
ACCA sentences may run concurrently with drug sentences.
Firearms Owners’ Protection Act, 1986, Pub. L. 99–308, §104(a), 100 Stat. 456–457 (increasing sentences for certain firearms and adding drug trafficking as a predicate felony); Anti-Drug Abuse Act of 1988, Pub. L. 100–690, §6460, 102 Stat. 4373–4374 (increasing sentences); Crime Control Act of 1990, Pub. L. 101–647, §1101, 104 Stat. 4829 (same); Public Safety and Recreational Firearms Use Protection Act, 1994, Pub. L. 103–322, §110102(c), 108 Stat. 1998 (same).
For those who take legislative history into account, it is as silent as is the statute’s text. The sole reference to the “except” clause appears in the statement of one witness at a Senate hearing. See Hearing on S. 191 before the Senate Committee on the Judiciary, 105th Cong., 1st Sess., 38 (1997) (statement of Thomas G. Hungar) (“[B]y adding an introductory clause authorizing imposition of stiffer minimum sentences if required under other provisions of law, S. 191 eliminates any potential inconsistency with other statutes.”).
We agree with the Government that a qualifying statute need not “explicit[ly] reference” §924(c), Tr. of Oral Arg. 27; a statute will fit the bill if it provides a greater mandatory minimum for an offense that embodies all the elements of a §924(c) offense.
Abbott and Gould invoke the rule of lenity as a final reason to construe the “except” clause to bar their punishments under §924(c); if their proposed limitations are textually possible, they maintain, we may not choose the Government’s. “[T]he touchstone of the rule of lenity is statutory ambiguity.” Bifulco v. United States, 447 U. S. 381, 387 (1980) (internal quotation marks omitted). “[A]fter consulting traditional canons of statutory construction,” United States v. Shabani, 513 U. S. 10, 17 (1994), we are persuaded that none remains here: The “except” clause covers only conduct offending §924(c). Although the clause might have been more meticulously drafted, the “grammatical possibility” of a defendant’s interpretation does not command a resort to the rule of lenity if the interpretation proffered by the defendant reflects “an implausible reading of the congressional purpose.” Caron v. United States, 524 U. S. 308, 316 (1998).


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Documents uncovered in a Fix the Court FOIA lawsuit last year may have led to the recusal of Supreme Court Justice Neil Gorsuch this term from a Guantanamo petition, al Bahlul v. U.S., and another government detention case, according to a new report released today by the nonpartisan judiciary watchdog group. Yet two non-recusals in related cases present a less-than-clear picture.
Soon after Gorsuch, a Bush 43 Justice Department official, was nominated to the high court, the public learned of his role in supporting the extraterritorial prison and its system of justice thanks in part to the FTC suit, which helped compel the release of 144,000 pages of his e-mails to the Senate Judiciary Committee. Included in that trove were documents showing that Gorsuch visited Guantanamo and suggested that federal judges visit, as well, so they’d become more sympathetic to the administration’s policies there.
On the same day as the Guantanamo recusal (Oct. 10, 2017), Gorsuch also disqualified himself from Geo Group v. Detention Watch Network et al., a suit in which immigrants’ rights group were looking to compel the production of contracts that ICE and the Department of Homeland Security have with private prisons. It is unclear if these two recusals are related. At the same time, Gorsuch sat on Dalmazzi v. U.S., a case argued in January concerning military commissions and dual-appointed judges, and al-Nashiri v. U.S., a petition from the U.S.S. Cole bomber, now a Guantanamo detainee, that was denied cert. on Oct. 17.
“These types of miscalculations – not to mention the late Kagan and Kennedy recusals this term – do not give the public confidence that the justices are taking their ethics obligations seriously,” Roth added.
Here is the recusal report. Here is an easy-to-read chart of the recusals. Here are the OT17 orders that include recusals.
Among the justices’ 200 recusals so far this term, other standouts include the seven recusal order issued by Justices Kennedy and Thomas April 3 in litigation from the 2007 Tribune Co. leveraged buyout, Deutsche Bank Trust Company Americas, et al. v. Robert R. McCormick Foundation, et al. In it the two justices wrote, “[Lower courts] could decide whether relief from judgment is appropriate given the possibility that there might not be a quorum in this court.” Within minutes, FTC was able to determine the reason for the statement: every justice save Kennedy and Thomas is invested in at least one of the retirement accounts and mutual funds – like Fidelity, Vanguard and TIAA-CREF – listed among the 154 pages of creditors.
Despite that order, the three justices who individual stock – Roberts, Breyer and Alito – have only stepped aside from 28 petitions this term, down from 47 last term. Alito once again led with 25 of these recusals (see the report), followed by Roberts with two, both due to his Time-Warner investment, and Breyer with one, on account of his Pearson stock.
There were three petitions and one disbarment this term whose recusals FTC could not definitively figure out. In addition to the Gorsuch recusal in Geo Group v. Detention Watch Network et. al (mentioned above), the reasons for his recusals in Opalinski v. Robert Half International, a Fair Labor Standards Act case from the Third Circuit, and Foot Locker v. Osberg, an ERISA suit from the Second Circuit, could not be determined.
Why Justice Thomas disqualified himself from the Oct. 2 disbarment of Elbert Walton, Jr., is also unclear. Walton is a prominent St. Louis-based lawyer and former member of the Missouri House of Representatives (1979-1992) who then became the attorney of the local fire district and got into trouble for yelling at a judge. Thomas worked in Missouri from 1974 to 1979, first as assistant attorney general in Jefferson City and then as an attorney with Monsanto in St. Louis. It is presumed the two know each other from their time in Missouri, but FTC has yet to find proof.
Finally, this term again featured missed recusals and unrecusals at the merits stage. On Oct. 10 Justice Kagan recused herself from Jennings v. Rodriguez, even though the case had been argued in OT16 to a 4-4 tie and reargued in OT17, with Kagan participating both times. Justice Kennedy on Mar. 23 recused himself from a decades-old case involving Native American fishing rights, Washington v. U.S., argued Apr. 18, because he had sat on an earlier version of the suit in 1985 while serving as a Ninth Circuit judge. (We’ll give Kennedy a pass on that one.) After recusing himself from the Jan. 12 cert. grant in WesternGeco (a Schlumberger subsidiary) v. ION Geophysical, Justice Alito sold his Schlumberger shares, worth up to $15,000, and on Mar. 28 noted that he was no longer recused.
All in all, the six merits-stage recusals in OT17 were Kagan in Rubin v. Islamic Republic of Iran and Jennings v. Rodriguez, Kennedy in Washington v. U.S. and Gorsuch in City of Hays v. Vogt, Dahda v. U.S. and Chavez-Mesa v. U.S.
The first two were decided in February, and the latter four will be decided by the end of June, with a 4-4 tie being a possibility in each.
Given the likelihood that publicly traded telecom companies will be litigants or amici in these cases, the justices should ensure they do not have a financial interest in their outcome.

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1. This petition filed by the petitioner-husband under Articles 226 and 227 of the Constitution of India and also under Section 482 of the Code of Criminal Procedure, 1973, raises a question of some importance. The question that arises for consideration is “whether the second wife whose marriage is void in view of the provisions of Sections 5 and 11 of the Hindu Marriage Act, 1955 (Act No. 23 of 1955) is entitled to apply for maintenance under Section 125 of the Code of Criminal Procedure 1973”.
2. The facts which are no longer in dispute before us are in a narrow compass. The petitioner is married to one Dwarkabai on July 4, 1961. During the subsistence of this marriage, the petitioner married the respondent No. 1 Tolanbai on September 5, 1966. On September 1, 1975, Tolan bai filed an application under Section 125 of the Code alleging inter alia that the petitioner beat her and drove her out of the house and, therefore, she has been staying with her parents who are poor, and she has no means of livelihood. She claimed an amount of Rs. 500/- per month by way of maintenance. Apart from denying the allegations of the respondent, the petitioner contended in the trial Court that his marriage with the respondent even if proved was null and void and did not confer status of the wife on her because this marriage was admittedly solemnised when his first wife Dwarkabai was living.
3. The trial Court held that the petitioner’s marriage with Dwarikabai had taken place in the year 1961 while his marriage with the respondent had taken place in the year 1966. It also held that having regard to the fact that the necessary ceremonies for solemnisation of the marriage according to customary Hindu Law having been gone into, she must be deemed to be a legally wedded wife for the purposes of Section 125 of the Code. On merits, the trial court accepted the case of the respondent and awarded maintenance at the rate of Rs. 60/- p.m. Aggrieved by this decision, both the petitioner and the respondent filed revision applications in the Sessions Court which came to be dismissed with the result that the order of maintenance passed by the trial court was maintained. The petitioner has, therefore, preferred this present petition challenging the order of the courts below.
4. Mr. Sawant, the learned Counsel appearing for the petitioner-husband raised only one contention. He submitted that the marriage of the respondent with the petitioner is null and void in view of the provisions of Section 5 read with Section 11 of the Hindu Marriage Act, and such a marriage, therefore, cannot confer the status of a wife on the respondent which would entitle her to make an application for maintenance under Section 125 of the Code of Criminal Procedure. He submitted that in order that a woman may be entitled to claim maintenance under the said provisions, she must satisfy the conditions laid down in that section, one of the conditions being that she is the wife of the person against whom maintenance is claimed. According to him, the word “wife” in Section 125 must mean, and has all along been construed to mean under Section 488 of the old Code of Criminal Procedure, “a legally wedded wife”, and as such a woman whose marriage contravenes the provisions of Section 5 read with Section 11 of the Hindu Marriage Act being void cannot claim the status of wife. The mere fact that the necessary ceremonies of a marriage under the customary Hindu Law have been gone into cannot confer on her the status of a “legally wedded wife” which is a condition precedent for claiming maintenance under Section 125 of the Code.
5. On the other hand, Mr. Gavanekar, the learned Counsel appearing, for the respondent, sought, to repel these arguments of Mr. Sawant by contending that the provisions of Section 125 should be liberally construed having regard to the social changes as well as the changes in the personal law of the party since Independence. He submitted that although under the provisions of Section 488 of the old Code which is in pari materia with the provisions of S. 125 of the new Code, it has been consistently held that in order to be entitled to claim maintenance under, Section 488, the applicant must establish that she is the legally wedded wife. Such a narrow construction of the provisions will no longer be permissible having regard to the progressive measures to ameliorate the condition of married women under the Hindu Marriage Act, 1955, and the Hindu Adoptions and Maintenance Act, 1956, and the extension of rights of maintenance to additional categories of persons who did not have such a right under the old Section 4 88 of the Code. He submitted that it must be assumed that the Parliament did take into consideration the changes in the personal law while enacting the provisions of Section 125 of the new Code. According to him, the provisions contained in the Hindu Marriage Act for alimony even to such a wife must be presumed to have been taken note of while enacting Section 125 of the Code. He further submitted that Section 125 of the Code confers a statutory right on every wife irrespective of her marriage being legal or void and there is no valid reason to restrict its application only to a legally wedded wife. It was submitted that the provisions of Section 125 were a piece of beneficial and social legislation which must be liberally construed in the context of the social changes and the intention of the Legislature to confer additional rights on women and children. The Counsel further submitted that all that the respondent had to establish in this case is whether the marriage was performed by going through the necessary ceremonies as per the customary Hindu Law, once that is established, it would not make any difference whether her marriage with the petitioner contravenes the provisions of Sections 5 and 11 of the Hindu Marriage Act. Lastly he submitted that in any event, having regard to the facts of this case, this court should not exercise its discretionary powers under Article 227 of the Constitution.
6. It is not disputed before us that the requisite ceremonies for a valid marriage under the personal law of the parties have been gone into in this case, although the marriage is null and void by reason of the provisions of Sections 5 and 11 of the Hindu Marriage Act, 1955. This Act was passed with the object of amending and codifying the law relating to marriages among Hindus. Under the customary law, there was no restriction for a male Hindu to marry more than one woman. This right of the Hindu husband under the customary Hindu Law was curtailed for the first time in the then Bombay Province by enacting the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, provisions whereof declared bigamy to be illegal. Under the provisions of the said Act and other similar laws enacted by other Provincial Legislatures, a second marriage by a Hindu person during the lifetime of the spouse was declared illegal and going through such a marriage was made penal. Consistent with the object of codifying the marriage laws amongst Hindus, all these State Laws were repealed by the Hindu Marriage Act, 1955. Section 5 of the Hindu Marriage Act provides for the conditions for solemnisation of marriage between any two Hindus. Section 11 declares that a marriage solemnised after the commencement of the Act shall be null and void if it contravences any of the conditions specified in clauses (i), (iv) and (v) of Section 5. One of the conditions for a marriage as required by Section 5 is that neither-party has a spouse living at the time of the marriage, and this is condition No. (i) in Section 5. Section 11 also gives a remedy to either party to the marriage to file a petition for a declaration by a decree of nullity of marriage: on any one of the said three conditions of Section 5 being shown to have been contravened. Obviously, the second marriage in such circumstances being void, it cannot create a legal status of husband and wife between the parties. It is true that Section 11 also gives a right to the parties to the marriage to file a petition for a declaration of nullity by a decree of the court; but the filing of the petition or passing the decree is not a condition precedent for putting an end to the marriage. What ultimately is declared on such a petition is nothing but the status of the party as on the date of the marriage, and, therefore, the marriage does not continue to remain valid until a decree is passed. What is null and void cannot be deemed to be in existence for any purpose whatsoever. Under the circumstances, if a marriage solemnised in contravention of any of the said three conditions referred to Section 5 (i) the woman cannot get the status of the wife nor the male gets the status of a husband qua her. The second marriage does not continue to be valid till the passing of the decree for a nullity. The position is also clear from the fact that bigamy is made penal by Section 17 of the Hindu Marriage Act which provides that any marriage between two Hindus solemnised after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living ; and the provisions of Sections 494 and 495 of the Indian Penal Code shall apply accordingly. The position is made further clear from the anxiety of the legislature to protect children of such a marriage by providing in Section 16 that notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. However, the rights of such a child are some-what curtailed in the matter of inheritance to the property, because sub-section (3) of Section 16 says that a child of such a marriage would not be entitled to any rights in or to the property of any person other than the parents. Having regard to all these provisions, the marriage of the petitioner with the respondent was void ab initio and the respondent could not get the status of a legally wedded wife in spite of the solemnization of the marriage under the Hindu Law having gone into. Indeed, Mr. Gavnekar did not dispute this legal position. He, however, contended that the provisions of Section 25 of the Hindu Marriage Act contended a right of maintenance on the second wife and the word ‘“wife” in Section 125 of the Code of Criminal Procedure will have to be given a wider meaning as including a Hindu wife whose marriage may be otherwise void.
7. Before adverting to the consideration of Section 125 of the new Code, it would be of relevance to consider the legal position as it obtained prior to the enactment of the new Code of 1973. Section 483 of the old Criminal Procedure Code inter alia provided that if any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the Magistrate could make an order against such a person to make a monthly allowance for the maintenance of his wife or such child. Thus a right was conferred on the wife or a legitimate or illegitimate child to claim maintenance, and the husband or the father as the case may be could be directed to pay an amount of maintenance not exceeding a particular limit as mentioned in the section. The object of the provisions of Section 488 had been aptly described as a provision for preventing vagrancy or at least of preventing its consequences. The object of maintenance proceedings was not treated as a mode of punishing husband or parent for his past neglect but to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves. The provisions of Section 125 are also intended to achieve the same object. In short, the provisions of the Section 488 or of Section 125 of the new Code have been enacted with the object of enabling the discarded wives, helpless and deserted children to secure some relief for their maintenance and livelihood. While Section 488 restricted its operation to wives and children, whether legitimate or illegitimate, Section 125 has brought into its fold the parents who are unable to maintain themselves. It has been the consistent view taken as seen from the catena of decisions under Section 488 so far as claim for maintenance by a wife against her husband is concerned that it must be shown that the complainant is the wife of the defendant. Only a legally married woman was held to be entitled to maintenance. It was held that merely because a woman has lived with a man as his wife for 12 years or more and has also borne him a child she was held not entitled to claim maintenance under Section 488. Section 488 applied only to the abondoned wife and not to the abondoned mistress, however faithful she may have been to her paramour, and however badly she may have been treated by him. In other words, the condition precedent for claiming a right of maintenance under that section was the proof of relationship of husband and wife and there could be no such relationship unless it is shown that the complainant is a legally wedded wife of the defendant Conversely, it was also held that once it is established that the complainant is the legally wedded wife, the fact that the personal law did not provide for such a maintenance was no bar to pass an order for maintenance under this section. For instance, a mutta wife was held entitled to maintenance under this section though she may not be so entitled under the Muhammedan Law. As long back as in the year 1891, this Court held in In Re. Gulabdas Bhaidas, ILR 1892 (XVI) Bom. 269, that before a Magistrate makes an order under Section 488 of the Code of Criminal Procedure, he must find that the complainant is the wife of the person from whom she claims maintenance, and that he has either neglected or refused to maintain her. A similar interpretation was also made by the Madras High Court in A.T. Lakshmi Ambalam v. Andiammal, AIR 1938 Mad. 66. The Court held that only legally wedded women were entitled to maintenance under Section 488; and in case of a dispute, the Magistrate must record a definite finding that the complainant is the wife of the person ordered to pay the maintenance, because the provisions were that only wives were entitled to maintenance. Same interpretation was put on the word “wife” in Section 488 in the case of Pwa Me v. San Hla, 1975 Cr.LJ 39. It was held that it under Section 488, a woman cannot be granted maintenance order against a man unless she proves herself to be his legal wife according to his personal law.
8. Section 488 remained on the statute book till the enactment of the new Code of 1973. It was in the year 1955 that a Union Legislation was enacted prohibiting bigamy and rendering a marriage null and void if such a marriage takes place when a spouse is living at the time of the marriage. It would be significant that in spite of the Hindu Marriage Act coming into force in the year 1956, no attempt was made to amend the provisions of Section 488 to include the case of a woman whose marriage is void by reason of the provisions of Sections 5 and 11 of the Hindu Marriage Act. The question as to whether a woman who has entered into a marriage with a person in contravention of the provisions of Sections 5 and 11 can apply for maintenance under Section 488 arose for consideration of different High Courts.
10. Even after the enactment of the Prevention of Bigamous Marriages Act and the Hindu Marriage Act of 1955, where the second wife (so called, because her marriage was null and void) had applied for maintenance under Section 488, it has been consistently held that she could not claim the status of a wife and was, therefore, not entitled to make an application for maintenance. Such a view on the interpretation of Section 488 has been taken in A.P.K. Narayanaswami Reddiar v. Padmanabhan, AIR 1966 Mad. 394 ; Banshidhar Jha v. Chhabi Chatterjee, AIR 1967 Pat. 277 and Bai Bhanbai Mavji v. Kanbi Karshan Devraj, AIR 1970 Guj. 137. It would, therefore, be clear that it has been consistently held, notwithstanding the enactment of the Hindu Marriage Act 1955, that it is only a legally wedded wife who can maintain an action under Section 488 of the old Code. If the marriage is not proved to be a valid marriage, whether under the personal law or being in contravention of the provisions of the Hindu Marriage Act, or such other laws, no application under Section 488 by such an “illegitimate” wife shall be held to be maintainable. It is significant to note that inspite of this consistent and longstanding judicial interpretation of the word “wife” in Section 488, the Legislature in its wisdom did not think it necessary to widen the scope of the provisions of Section 488 while enacting the provisions of Section 125 in the new Code. Undoubtedly, some more categories of persons have been specifically added in Section 123, but as far as the wife is concerned, the only addition is that of a divorced wife. The case of divorced wife is obviously different, because till divorce, she continues to be a legally wedded wife. A woman whose marriage is void cannot get the legal status of a wife and therefore if the marriage is void by reason of contravention of Section 5 read with Section 11 of the Hindu Marriage Act, she is not competent to make an application under Section 125 of the Code. That provision merely speaks of a “wife” and its meaning cannot be extended to the case of a void marriage.
According to the Concise Oxford Dictionary, “wife” means “married woman esp. in relation to her husband”. It is not possible to hold that even if the marriage is null and void and prohibited by law, she should still be considered as the wife. If such an interpretation of the word “wife” were to be accepted, it could as well be extended to cases where the necessary ceremonies under the personal law are not gone into, and what is pressed into service is a long co habitation as husband and wife. Even concubine or any woman living with the paramour and treating herself to be his wife could claim to be his wife for the purposes of Section 125. For a valid marriage which alone can confer the status of a wife not only the ceremonies under the personal law must be gone into, but also must conform to the statutory requirements such as Sections 5 and 11 of the Hindu Marriage Act. Just as under the personal law, the ceremonies is a condition precedent for a valid marriage, similarly, the marriage should not contravene any of the conditions under the statutory provisions. In the absence of any clear indication in the provision itself and having regard to the background in which the said provisions of Section 125 were enacted, we do not think that a woman can claim maintenance unless she proves that she is a legally wedded wife of the defendant against whom she maintains an action.
12. Strong reliance was placed by Mr. Gavnekar on the provisions of Section 25 of the Hindu Marriage Act, which according to him, must be borne in mind while interpreting the provisions of Section 125 of the Code. Section 25 of the Hindu Marriage Act confers jurisdiction on the court to grant permanent alimony and maintenance to a wife or a husband, and this jurisdiction could be exercised by the court either at the time of passing the decree or at any time subsequent thereto. It was, therefore, contended that even a woman whose marriage is declared to be null and void under Section 11 of that Act is entitled to get almony and maintenance. This provision of law according to the counsel, clearly indicates that there was a clear departure from the personal law as it stood prior to the Hindu Marriage Act and the legislature intended to confer a statutory right of maintenance and alimony even in cases where the marriage contravenes the conditions prescribed in Section 5 and is declared to be null and void under Section 11. Reliance was placed on a decision of a single Judge of this Court in Govivdrao Ranoji v. Anadibai Govindrao, 1977 BLR 73. The Court held that Sec. 25(1) not only provides for a remedy but it also confers a right; and the words “wife” and “husband” used in Sec 25 (1) of the Hindu Marriage Act include within their scope a woman and a man professing the Hindu faith who have gone through a ceremony of marriage which would, in law, have conferred the status of a wife or husband on them but for the provisions of Section 11 read with clauses (i), (iv) and (v) of Section 5 of the Act. On this decision, it was urged by the counsel that there is no reason why the same meaning should not be given to the word “wife” in Section 125 of the Code as has been given to the same word in Section 25 (1) of the Act of 1955. The counsel also pointed out that a similar view on the interpretation of the word “wife” in Section 25 (1) has been expressed in Dayal Singh v. Bhajan Kaur, AIR 1973 P & H 44 and Arya Kumar v. Smt. Ila, AIR 1968 Cal. 276. However, it appears that a contrary view has been taken by a Division Bench of the Madras High Court in A.P.K. Naraynaswami Reddiar v. Padmanabhan (Supara). The Madras High Court has held that Section 25 cannot be construed in such a manner as to hold that notwithstanding the nullity, of the marriage, the wife retains her status for put poses of applying for alimony and maintenance ; and the proper construction of Section 25 would be that where a marriage is admittedly a nullity, the section will, have no application. They, however, held that where the question of nullity is in issue and is contentious the court has to proceed on the assumption until the contrary is proved, that the applicant is the wife. Mr. Sawant submitted that the view taken by Kania, J in Govindrao Ranoji’s case (supra), requires reconsideration. We do not, however, think it necessary to go into that question because in our view, even if we were to accept the correctness of the view taken by Kania, J. on the true construction of Section 25(1), it will not have any bearing on the interpretation of the word “wife” in Section 125 of the Code. We would, therefore, proceed on the basis that the woman whose marriage is void by reason of Section 5 read with Section 11 of the Act is entitled to claim alimony in view of the provisions of Section 25(1). In the first place, Section 25(1) confers a statutory right on the wife and the husband and confers a jurisdiction on the court to pass an order of maintenance or alimony in proceedings contemplated under the Act at anytime after the decree is passed in such a proceeding. In order, therefore, that the wife or the husband could claim such a right, the conditions of Section 25(1) will have to be satisfied. There mist be a matrimonial petition filed under the Act; then in such a petition, a decree must be passed by the court. It is only when a decree is pissed that a right accrues to the wife or the husband or confers a jurisdiction on the court to grant alimony. Till then, such a right does not take place It is, therefore, difficult to accept the contention that the personal law regarding the maintenance of a woman who is not legally wedded wife stands changed by the provisions of Section 25(1). In any case, the jurisdictions contemplated under Section 25(1) under the Hindu Marriage Act and Sec. 125 of the new Code are distinct and specific. While Section 25(1) is intended for parties who are Hindus, Section 25 is secular in character in the sense that it applies to persons belonging to all religions. It, would, therefore, be not proper to introduce a concept arising out of the provisions of Section 25 (1) of the Hindu Marriage Act while construing the provisions of Section 125 of the Code. The condition precedent for the applicability of Section 125(1) is that the complainant must be the wife of the person against whom the maintenance is claimed. A wife, as we have mentioned above, must mean a legally wedded wife. A wife whose marriage is in contravention of Secs. 5-and 11 cannot under any circumstances be treated as a legally wedded wife. The provisions of Sections 5 and 11 are explicit and admit of no ambiguity. The marriage in contravention of conditions laid down in Sections 5 and 11 is no marriage at all in the eye of law, because Section 11 clearly states that it is null and void. Merely because Section 11 permits the presentation of a petition for a decree of nullity on grounds of breach of conditions laid down in Section 5, it cannot mean that till such a declaration is made by the court and a decree is passed to that effect, she continues to be the legally wedded wife. That the legislature has made a clear distinction between void and voidable marriages is seen from the various proceedings contemplated by the Hindu Marriage Act. While Section 11 in terms says that any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. Section 1 postulates that certain marriages shall be voidable. Under sub-section (1) of Section 12, any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the grounds, viz. (a) that the marriage has not be n’ consummated owing to the impotence of the respondent ; or (b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5 ; (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, the consent of such, guardian was obtained by force, or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent ; (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. It would, therefore, be clear that till the annullment by a decree, the marriage continues to be valid. Being a voidable marriage, a party to the marriage must exercise its option to get it annulled by a decree. Section 11, however, stands on a different footing. The marriage is ipso facto null and void although a petition can be filed by either party to the marriage. The decree passed in proceedings under Section 11 is a declaration of nullity while a decree contemplated under Section 12 is a decree of annulment which means that the marriage continues to be valid till it is annulled or nullified by a decree. Same is the position with regard to the provisions of Section 13 relating to proceedings for divorce. It is only on a decree of divorce that the marriage is dissolved. Till then the parties to the marriage continue to be locked in a legal marital relationship. Section 125 has taken note of such provisions regarding divorce in Hindu Marriage Act, which applies to the case of Hindu and other enactments and personal laws relating to divorce and has provided for granting maintenance even to a divorced wife. Provisions of Sec. 125 are not restricted to Hindus alone but apply to persons belonging to all communities and religions. It is not possible to assign, different meaning to the word “wife” for persons belonging to different communities or religions or governed by different personal laws. To construe the word “wife” as including a woman whose marriage is void and illegal would lead to anomalous results, because the same extended meaning will have to be given to the word in the case of women of all religions and communities. This does not seem to be the intention of the Legislature because it could have expressed such an intention clearly particularly having regard to the long standing judicial interpretation of the word wife” in Section 488 of the old Code. We do not think that the interpretation of Section 25(1) of the Hindu Marriage Act can be of assistance in construing Section 125 of the Code. We have no hesitation in concluding that the marriage of the respondent with the petitioner which admittedly contravenes conditions in clause (i) of Section 5 is null and void in its inception and it does not confer the status of a legally wedded wife to enable her to make an application under Section 125.
The above observations would indicate that it would not be proper to give an extended meaning to the word “wife” in Section 125 on the basis of the provisions of Section 25 of the Hindu Marriage Act.
We do not think that the principle can be of any assistance in this case, particularly having regard to the secular character of the provisions and the plain grammatical meaning of the word coupled with the long standing judicial interpretation put by the courts on the word “wife” in Section 488. On the other hand, if the wider meaning as suggested by the learned counsel is given, it is likely to lead to manifest contradictions and absurdities, because the same extended meaning will have to be given in the case of parties governed by other religious and personal laws.
15. The argument of Mr. Gavnekar is solely based on the provisions of Section 25(1) of the Hindu Marriage Act. We have indicated above that the scope of Section 25(1) is entirely different. The maintenance or alimony can, if at all be awarded only on satisfaction of the conditions laid down in that section, and on a termination of the proceedings by a decree passed under the Act. Section 125 of the Code which applies to persons of all religions and which has no relationship with the personal law of the parties cannot be construed by reference to Section 25(1) of the Hindu Marriage Act.
16. We are also unable to accept the contention of Mr. Gavnekar that we should not exercise the discretionary powers under Articles 226 and 227 of the Constitution having regard to the facts of this case. The question raised is a pure question of law and goes to the root of the matter. Unless and until the complainant (respondent No. 1 herein; proves that she is the legally wedded wife of the petitioner, the Magistrate will have no jurisdiction to pass an order of maintenance in her favour. It is an admitted fact in this case that the marriage of the respondent is in contravention of the condition (i) in Section 5 and is, therefore, null and void as provided in Section 11 of the Hindu Marriage Act. There is thus a clear error on the face of the record which requires to be rectified. This is a fit case where the powers under Article 227 of the Constitution must be exercised, as, in our view, refusal to exercise these powers, would result in totally ignoring the mandatory provisions of law and maintaining an order which on the face of it is illegal and without jurisdiction. As indicated above, we have not finally decided the question about the correctness or otherwise of the view taken by Kania, J. in Govindrao Ranoji v. Annadibai Govindrao, supra referred to above, regarding the interpretation of Section 25(1). The remedy under Section 125 being a summary remedy, the respondent would be at liberty to take any other provisions of law for seeking maintenance from the petitioner.
17. In the result, the petition must succeed.
18. The petition is allowed, the impugned order dated October 11, 1977 passed by the Judicial Magistrate, First Glass, Barsi, and the order dated August, 23, 1978, passed by the Sessions Judge, Sholapur, dismissing the revision application of the petitioner, are quashed and set aside, and the respondent No. 1’s application for maintenance stands rejected. Rule made absolute. No order as to court.

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COMMONWEALTH vs. HOYT VAN JONES.
INDICTMENT found and returned in the Superior Court Department on July 1, 1980.
The case was tried before Doerfer, J.
Kevin J. Ross, Legal Assistant to the District Attorney, for the Commonwealth.
on the elements of the offense set out in the indictment as amended, and he made no mention of assault and putting in fear. The defendant did not object to amendment of the indictment, to the form of the amendment, or to the jury instructions. He now argues that the amendment was an impermissible material alteration of the offense as originally charged which requires us to set the verdict aside and order that judgment be entered for him on the indictment in its original form. We affirm the judgment.
The issue before us is "whether `the amendment materially change[d] the work of the grand jury' (Commonwealth v. Benjamin, 358 Mass. 672, 679 ), or otherwise stated, whether the amendment `changed the substantive offense charged' by the grand jury (Commonwealth v. Parrotta, 316 Mass. 307, 312 )." Commonwealth v. Gallo, 2 Mass. App. Ct. 636, 639 (1974). See Commonwealth v. Liebman, 379 Mass. 671, 676 (1980); Commonwealth v. Morse, ante 426 (1981). See also Reporters' Notes to Mass.R.Crim.P. 4(d), Mass. Ann. Laws, Rules of Criminal Procedure at 38 (1979). The answer to this turns on whether an indictment for robbery must allege one of the alternative ways (see Commonwealth v. Jones, 362 Mass. 83, 85-87 ) in which that offense can be committed. Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979) ("An indictment . . . shall contain . . . a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof"). See Reporters' Notes to Mass.R.Crim.P. 4(a), Mass. Ann. Laws, Rules of Criminal Procedure at 37 (1979) ("The forms established by G. L. c. 277, Section 79, contain sufficient descriptions of the crimes listed therein" [Note 2]). See also G. L. c. 277, Section 21 ("The means by which a crime is committed need not be alleged in the indictment unless an essential element of the crime").
Although the statutory form was not used in the present instance, the defendant knew he had been charged with unarmed robbery. When used in an indictment, the word robbery means "[t]he taking and carrying away of personal property of another from his person and against his will, by force and violence, or by assault and putting in fear, with intent to steal" (emphasis supplied). G. L. c. 277, Section 39. The gravamen of the offense is the use of force. "The essence of robbery is the exertion of force, actual or constructive, against another in order to take personal property of any value whatsoever, with the intention of stealing it from the protection which the person of that other affords." Commonwealth v. Weiner, 255 Mass. 506, 509 (1926). Commonwealth v. Novicki, 324 Mass. 461, 464-465 (1949). Commonwealth v. Jones, 362 Mass. at 85-87. See also Nolan, Criminal Law Sections 284-287 (1976). The particular type of force, actual or constructive, by which the robbery is committed is not an essential element of the crime, and it need not be pleaded in the indictment. Cf. Commonwealth v. Harris, 9 Mass. App. Ct. 708, 710-712 (1980). The grand jury charged the defendant with taking the victim's property by force and with the intent to steal it. The amendment by the judge of the unnecessary recital of constructive force to actual force was not a change in the substantive offense charged by the grand jury. Contrast Commonwealth v. Rodriguez, 11 Mass. App. Ct. 379 (1981); Commonwealth v. Morse, ante 426 (1981). Rather, the amendment was a correction of the form of the charge to conform to the evidence. As such, it was within the scope of rule 4(d), and, to prevail, the defendant must show that he was prejudiced in his defense. Commonwealth v. Grasso, 375 Mass. 138, 139 (1978). Commonwealth v. Liebman, 379 Mass. at 676. Commonwealth v. Clark, 5 Mass. App. Ct. 673, 677-678 (1977).
presentation of this defense. When the judge advised counsel that he thought that the indictment should be amended, no argument against such an action was made and no objection was taken. Defense counsel agreed with the judge when he stated that he should not instruct on assault and putting in fear "because it really doesn't fit the evidence" and that "the indictment to avoid confusion should be amended to read, `by force and violence' rather than to read `did assault and put in fear.'" At the completion of the instructions, defense counsel stated that he was "satisfied" with them.
The defendant points to the fact that although the jury were not instructed on the offense as originally charged, they had the indictment in its original form in the jury room during their deliberations. If the indictment was sent out with the jury (there is nothing in the record to indicate that it was) the record fails to disclose any objection by the defendant that the formal language of the indictment had not been changed or any request that the indictment be withheld from the jury during deliberations.
We conclude that the defendant was properly convicted as ultimately charged, and we find no substantial risk of a miscarriage of justice in his trial. Our conclusion makes it unnecessary to consider the defendant's contention that the evidence was insufficient to warrant a finding of unarmed robbery by assault and putting in fear.
[Note 1] Specifically, the indictment charged that the defendant "not being armed with a dangerous weapon, did assault and put in fear [the victim] with intent to rob her and thereby did rob and steal from the person of [the victim], purse, credit cards, money, of the property of [the victim]."
[Note 2] The statutory form of an indictment framed under G. L. c. 265, Section 19, is: "That A.B. did assault C.D. with intent to rob him, and thereby did rob and steal from the person of said C.D. (mention the property) of the property of said C.D." G. L. c. 277, Section 79.

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The Examiner rejected claims 14 and 15 under 35 USC § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which Appellants regard as the invention. Supp. Ans. 3-43 (citing In re Donaldson Co., 16 F.3d 1189, 1195 (Fed. Cir. 1994) (en banc) (“[I]f one employs means plus function language in a claim, one must set forth in the specification an adequate disclosure showing what is meant by that language. If an applicant fails to set forth an adequate disclosure, the applicant has in effect failed to particularly point out and distinctly claim the invention as required by the second paragraph of section 112.”)). For a computer-implemented means-plus-function claim limitation that invokes 35 U.S.C. § 112, ¶ 6, the corresponding structure is required to be more than simply a general purpose computer. Aristocrat Techs. Austl. Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008). The corresponding structure for a computer-implemented function must include the algorithm as well as the general purpose computer. WMS Gaming, Inc. v. Int’l Game Tech., 184 F.3d 1339 (Fed. Cir. 1999). The written description must at least disclose the algorithm that transforms the general purpose microprocessor to a special purpose computer programmed to perform the claimed function. Aristocrat, 521 F.3d at 1338.
2664 Ex Parte Moreb 11260437 - (D) HUGHES 103 DICKINSON WRIGHT PLLC CAMARGO, MARLY S.B.
The record reflects that it is common sense that a surveillance audio/video system be portable. See In re Lindberg, 194 F.2d 732, 735 (CCPA 1952) (Portability of a claimed device is insufficient to patentably distinguish the device over an otherwise old (known) device unless there are new or unexpected results.).
In re Sasse, 629 F.2d 675, 681 (CCPA 1980) (when the reference relied on expressly anticipates or makes obvious all of the elements of the claimed invention, the reference is presumed to be operable, and the appellant must rebut this presumption with a preponderance of evidence).
It has long been understood that invention is not confined to the particular form or mode described. See, e.g., Cont’l Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405 (1908).
“[A]lthough a method claim necessarily recites the steps of the method in a particular order, as a general rule the claim is not limited to performance of the steps in the order recited, unless the claim explicitly or implicitly requires a specific order.” Baldwin Graphics Systems, Inc. v. Siebert, Inc., 512 F.3d 1338, 1345 (Fed. Cir. 2008); see also Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1342-43 (Fed. Cir. 2001).
To satisfy the due diligence showing requirement of 37 C.F.R. § 1.131, Appellant must present proof of diligence, no matter how short the period to be covered. In re Mulder, 716 F.2d 1542, 1545 (Fed. Cir. 1983) (noting that focusing on the shortness of the period to be covered—two days—is misleading where there is no evidence of record showing diligence). Moreover, to establish diligence, the inventor must provide specific details as to what was done and when it was done during the critical period. See Gould v. Schawlow, 363 F.2d 908, 918 (CCPA 1966).
To establish diligence for constructive reduction to practice, the attorney’s diligence must be shown. “[R]easonable diligence can be shown if it is established that the attorney worked reasonably hard on the particular application in question during the continuous critical period.” Cf. Bey v. Kollonitsch, 806 F.2d 1024, 1027 (Fed. Cir. 1986) (interference). “[The inventor’s] records did not show the exact days when activity specific to this application occurred. Thus, we cannot say that the board clearly erred in finding that ‘the documented activities with regard to [the present application] are insufficient by themselves to prove diligence.’” Id. at 1028 (second brackets in original). “[I]t may not be possible for a patent attorney to begin working on an application at the moment the inventor makes the disclosure, because the attorney may already have a backlog of other cases demanding his attention” so that “the courts have recognized that reasonable diligence is all that is required of the attorney.” Id. “Generally, the patent attorney must show that unrelated cases are taken up in chronological order, thus, the attorney has the burden of keeping good records of the dates when cases are docketed as well as the dates when specific work is done on the applications.” Id.
As the Federal Circuit has explained, even post-KSR, “patents are not barred just because it was obvious 'to explore a new technology or general approach that seemed to be a promising field of experimentation, where the prior art gave only general guidance as to the particular form of the claimed invention or how to achieve it.'” Procter & Gamble Co. v. Teva Pharmaceuticals USA, Inc., 566 F.3d 989, 997 (Fed. Cir. 2009) (quoting In re O’Farrell, 853 F.2d 894, 903 (Fed. Cir. 1988)).
In Phillips, we held that while “the specification [should be used] to interpret the meaning of a claim,” courts must not “import[ ] limitations from the specification into the claim.” Id. at 1323. We specifically noted that it is improper to “confin[e] the claims to th[e] embodiments” found in the specification, as Trans Texas asks us to do. Id.
In re Trans Texas Holdings Corp., 498 F.3d 1290, 1299 (Fed. Cir. 2007).
The Federal Circuit noted that “[u]nder Phillips, dictionary definitions are also pertinent. See id. at 1318 (‘[T]he court has observed that dictionaries … can be useful in claim construction.’).” Id. at 1299. The Federal Circuit expressly commented that there were multiple dictionary definitions for the term “directly” but chose the “broadest” definition. See Trans Texas Holdings, 489 F.3d at 1299. Thus, the Federal Circuit affirmed a Board decision in which the Board selected a dictionary definition that was broader than the examples disclosed in the Specification and was the broader dictionary definition. See Trans Texas Holdings, 489 F.3d at 1298-1299.
Thus, the machine-or-transformation test remains a useful tool for determining whether a claim covers an abstract idea. See e.g., Dealertrack, Inc. v. Huber, 674 F. 3d 1315, 1331 et seq. (Fed. Cir. 2012).


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By denying certiorari in this case, the Court once again sanctions the practice of automatically depriving plaintiffs of their lawsuits or defendants of their defenses merely because their lawyers have failed to file some paper within the time required by Court rules. This is a form of vicarious punishment against which I have frequently protested in both civil and criminal cases, but in vain. See, e.g., Santana v. United States, 385 U.S. 848, 87 S.Ct. 74, 17 L.Ed.2d 78 (1966); Pittsburgh Towing Co. v. Mississippi Val. Barge Line, 385 U.S. 32, 87 S.Ct. 195, 17 L.Ed.2d 31 (1966); Beaufort Concrete Co. v. Atlantic States Construction Co., 384 U.S. 1004, 86 S.Ct. 1908, 16 L.Ed.2d 1018 (1966); Lord v. Helmandollar, 383 U.S. 928, 86 S.Ct. 929, 15 L.Ed.2d 847 (1966); Riess v. Murchison, 383 U.S. 946, 86 S.Ct. 1196, 16 L.Ed.2d 209 (1966); Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964); Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). See also my dissent from this Court's order transmitting to Congress Amendments to the Federal Rules, 383 U.S. 1032 (1966).
This is a criminal case, where the defendant's retained attorney filed a timely notice of appeal. Petitioner then hired a new lawyer to handle the appeal. Later, the State moved to dismiss the appeal for failure to prosecute, notifying the defense attorney but not the defendant who had been convicted. Petitioner's lawyer failed to take any further action, and the court dismissed the appeal with prejudice, thereby depriving petitioner of his right to appellate review. Although petitioner never did receive notice from his lawyer or from the court, when he learned that his case had been dismissed, he quickly asked the court to reinstate it, explaining that he had never been advised that the appeal was not being actively prosecuted or that the State had moved to dismiss it, and stating that he had now retained a new attorney who was prepared to proceed promptly with the appeal. The court, without ever giving the defendant the benefit of an opinion to explain its action, denied his motion. Now this Court refuses to review and hold that this defendant should be given the benefit of the first and most important rule of due process, which requires notice to a person before he is deprived of his liberty or his property. I would grant certiorari and hold that since Florida provides a right of appeal to criminal defendants in general, it is required to give this defendant an appellate review before he is stigmatized as a criminal.
Of course, the average litigants, who rarely get into court, are not well acquainted with the qualifications of lawyers and they may select poor ones. Even so, there is a vast difference between holding the litigant responsible for errors in not objecting to evidence or pleadings, and on the other hand holding the litigant responsible for complete failure to file papers and then without notice to the litigant dismissing his entire case or defense. When a litigant hires a lawyer who has a state license to practice, he certainly has no reason to suspect that the State will reach into his pocket and make him pay money or take away his valuable cause of action because of his lawyer's neglect.
Many people justify such state action by saying that the litigant can sue his lawyer for malpractice. But there is a long distance between filing a malpractice suit and winning a damage award against an attorney for malpractice. Nor should courts render a judgment based on the idea that although they do a wrong to a litigant, he can be recompensed by a suit against his lawyer. There is a much simpler solution to this problem than malpractice lawsuits. Instead of holding a litigant responsible in a civil or criminal case for the mistakes of his lawyer, the courts can merely give the litigant notice of his lawyer's defaults and an opportunity to get a new lawyer to present his case. I would grant certiorari and reverse.

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