Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., decided on the following questions for consideration:

  • Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties?
  • Whether suit for partition and possession is bad for non-joinder of necessary parties and therefore ought to have been dismissed?
  • Whether in the circumstances of the case, the observation regarding non-joinder of necessary parties, made by the appellate court, are proper?

Factual Background

A suit for partition and separate possession of the suit property was filed by respondents against the predecessor of the appellants by the name Mr Gumansing, claiming that they had 1 / 2 share of the suit property.

It was stated that the respondents were the wife and children of Harising who contested the suit by his written statement and admitted that the suit property was the ancestral property.

Further, he had put up a plea of the previous partition about 70 years back, however, admitted that the suit property remained joint and he claimed to be the exclusive owner of the suit property and also claimed to be in possession.

Trial Court concluded that the suit property was the ancestral and joint family property but denied giving any share on the ground of non-joinder of all coparceners. Though the District Court quashed and set aside the judgment of the trial Court and decreed the suit partly.

Analysis and Decision

High Court noted that as per the provisions of the Hindu Succession Act, the suit property was simultaneously inherited by Shivam and Totaram who were real brothers and each one of them would be entitled to half share.

In a suit for partition, the heads of all the branches are the necessary parties.

Further, even if all the sons of Shivaram and Totaram were not covered by Order XLI Rule 33 of the Code of Civil Procedure, having found that there was due representation of both the branches and there could not have been any dispute as to equal share of each of these two branches, the interest of justice was met by decreeing the suit partly and by directing the suit property to be divided into two halves only.

Bench found that the District Court had not directed a further division amongst the coparceners inter se from each of the branches.

Hence, High Court answered the substantial questions in favour of the respondents and the Second Appeal, therefore must fail.

There was absolutely no evidence to show that the respondents were completely excluded from receiving any yield from the suit property and the entire usufructs were being enjoyed by the appellant to their exclusion.

In view of the above, civil application was disposed of. [Late Gumansing Shivram Patil v. Abhiman Gumansing Patil, 2022 SCC OnLine Bom 866, decided on 22-4-2022]


Advocates before the Court:

Advocate for Appellants: Mr. S.B. Yawalkar h/f. Mr. B.R. Yawalkar

Advocate for Respondents1 to 5: Mr. S.V. Dixit

Case BriefsHigh Courts

Bombay High Court, Bench at Aurangabad: Vibha Kankanwadi, J., while addressing a matter revolving around the property, observed that,

Article 254 of the Constitution gets attracted only when both Central and State legislations have been enacted on any of the matters in the said List and there is conflict between two legislations.  

The basic principle is that the Central legislation will prevail as Article 254(1) of the Constitution gives supremacy to the law made by the Parliament.

Factual Background

The instant matter pertained to partition and separate possession.

Appellant submitted that the Courts below did not consider the evidence and the law points properly and the relationship between the parties was not denied.

Plaintiff and the defendant 3 were sisters and defendant 1 was their brother, inter se. Original defendant 2 was their mother and father expired on 14-12-1998 who had left behind the suit property.

There was no actual partition of the property because no share was given to defendant 2. The said property was divided into plots and, therefore, its price went up.

The plaintiff had contended that defendants 1 to 3 intended to oust the plaintiff from inheritance and, therefore, she demanded her share from the suit property, however, it was refused and, therefore, she had filed the suit. Later defendant 2 also expired.

Further, it was denied that the plaintiff and defendants were members of the joint family.

Two hectares and 42 R land was given to defendant No.1 and rest of the property was kept by Jyotiram in the name of himself and defendant No.2 in the year 1982.

Appellants advocate contended that the Courts below wrongly held that the suit property was ancestral and joint Hindu Family property of the plaintiff and the defendants.  Both the Courts below did not properly consider the law point involved in the case and went on to observe that the case was governed by amended Section 6 of the Hindu Succession Act (as amended in 2005).

It was further submitted that the plaintiff got married in the year 1966 and defendant 3 got married in 1965. Therefore, even now, those daughters cannot get the benefit of the amendment to the Hindu Succession Act.

Section 29-A of the Hindu Succession Act, which was Maharashtra Amendment, made a specific provision and gave right to unmarried daughter/s after the said Act came into force w.e.f. 22nd June, 1994. Though now all the daughters have been made co-parceners; yet we are required to see that Section 29-A of the Hindu Succession Act, i.e. Maharashtra Amendment, had received assent of Hon’ble President of India.

 Legal Position

A very significant point to be noted was that in the present situation, after Section 6 of the Hindu Succession Act, 1956 was amended in 2005; yet the Centre did not notify or declare that Section 29-A of The Maharashtra Amendment to Hindu Succession Act, as repealed and, therefore, the daughters, who were married prior to 1994, would not get any share in the property left by their father.

In view of the above-stated position, substantial questions of law arose in the present matter, requiring admission of the Second Appeal.

Partition

High Court expressed that both the Courts below, properly appreciated the evidence and concluded that the defendant failed to prove the previous partition allegedly effected in the year 1982.

Main Contention

Section 29-A of the Hindu Succession Act is still in operation and, therefore, the married daughters, i.e. those daughter, who were married prior to 1994, will not get any share either in the ancestral or joint family property.

High Court stated that a limited right was given to the daughter earlier, and therefore, in order to widen the scope and the rights along with and after certain States made amendment; Maharashtra State amended the law and gave right to the daughter equivalent to sons by making her co-parcener. However, it was limited to those daughters, who were unmarried at the time of coming into force of the said provision.

Law on Succession

Court expressed that the law on the point of Succession is at Entry No.5 of the Concurrent List, i.e., List No. III in the Seventh Schedule. Article 254 of the Constitution gets attracted only when both Central and State legislations have been enacted on any of the matters in the said List and there is conflict between two legislations.

Further, it was added by the Bench that in the year 2005, the Union Government brought an amendment to Section 6 of the Hindu Succession Act and made the daughters as coparceners and was done with a view to give equal rights to the daughters in comparison to sons. When the Maharashtra State Amendment was restricted to un-married daughters (excluding the daughters, who were married prior to 1994), no such distinction has been made in Section 6 of the amended provision by the Union Government and, therefore, the repugnancy existed.

Taking into consideration both the enactments, i.e., Section 29-A and Section 6, as amended in 2005, they cannot stand together and, therefore, the law made by the Parliament would prevail over the State Law in view of Article 254(1) of the Constitution of India. 

Central enactment, i.e., Section 6 Hindu Succession (Amendment) Act, 2005 would be applicable to this case and in view thereof, the plaintiff has share in the suit property, which has been rightly adjudicated by both the Courts below.

In Court’s opinion, no substantial question of law as contemplated under Section 100 CPC arose in the present matter, which required the admission of the Second appeal.

Therefore, in view of the decision of Kirpa Ram (deceased) v. Surendra Deo Gaur, [2021 (3) Mh. L.J. 250], the second appeal deserved to be dismissed at the threshold. It deserved to be dismissed.

Civil Application No. 8434 of 2019 was moved by the applicant. The applicant was the wife of original defendant 1 and mother of original defendants 4 and 5. She came with a case that during lifetime of original defendant 2, i.e. her mother-in-law, had executed a will in favour of the applicant and therefore she became owner of other half share of the property and further tried to produce the will.

It was noted that the matter was before the trial court for about 8 years and no attempt was made by defendants to disclose it to the Court that any such will was left by defendant 2.

Court expressed that,

Though the husband and sons had every knowledge about the suit, it is hard to believe that the applicant, who is residing with them, had no knowledge about the suit that was filed; the decree that was passed and the appeal was filed by the husband. There was no attempt on the part of the applicant to contest or get herself added as respondent.

Concluding the matter, Court held that for about four (4) years, nine (9) months and Twenty-six (26) days, the matter was before the first Appellate Court, yet once again no attempt was made by the present applicant to get herself added as party to the proceeding or challenge the decree passed by the Trial Court independently in her own capacity. In view of this, the present application does not deserve to be allowed.[Babu v. Muktabai, Second Appeal No. 402 of 2019, decided on 1-12-2021]


Advocates before the Court:

Mr Mukul S.Kulkarni, Advocate h/for Mr Kiran T.Jamdar, Advocate for Appellants;

Mr GR Syed, Advocate for Respondent No.1;

Mr VD Godbharale, Advocate for Intervenor

Case BriefsHigh Courts

Sikkim High Court: If a father keeps his self-acquired property for the purpose of mortgage, can his sons interfere in the same? Bhaskar Raj Pradhan, J. answered in the negative and stated that the sons did not have a right to stop the father in dealing with his self-acquired property in the manner he chose to.

Background

Petitioners in the instant matter were the adult sons of respondent 4 who was proceeded against before the Tribunal having stood as guarantor for the loan taken by respondent 2 from respondent 1.

Respondent 4 had mortgaged the landed property in dispute to respondent 1 as a guarantor. Respondent 3 wife of respondent 2 was also a guarantor. Respondent 1 was the Certificate Debtor 2 and respondent 4 was Certificate Debtor 3.

With this Court, a declaration was sought that the property involved in the auction sale shall not be sold in auction to realize the dues of respondent 1. Further, it was added that a declaration that the other landed properties of respondent 2 first be proceeded against to realize the dues of respondent 1 and a direction that the loan shall be realized from respondent 3 from her employer duly adjusting the considerable amount towards recovery loan.

Petitioners stated that the property was originally acquired by the father of respondent 4 and he got his property from his father on partition, hence the same was an ancestral property of the petitioners.

Further, it was stated that the petitioners, as well as the respondent, were Hindus governed by Mitakshara School of Hindu Law and that by virtue of their birth, they became owners of the property along with respondent 4 as coparceners.

Analysis

Whether the property was an ancestral property of the petitioners or if they had any enforceable right on the property mortgaged by respondent 4 in favour of respondent 1 as a guarantor?

According to Hindu Law by Sir Dinshaw Fardunji Mulla 23rd Edition “all property inherited by a male Hindu from his father, father’s father or father’s father father, is ancestral property.”

Supreme Court reiterated in Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646, “A property of a Hindu male devolves on his death.”

A 3-Judge Bench of the Supreme Court in C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar, AIR 1953 SC 495, held that

“father of a Joint Hindu Family governed by Mitakshara law has full and uncontrolled powers of disposition over his self-acquired immovable property and his male issue could not interfere with these rights in any way. The Supreme Court while examining the question as to what kind of interest a son would take in the self- acquired property of his father which he receives by gift or testamentary bequest from him, it was held that Mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants. It was held that it was not possible to hold that such property bequeathed or gifted to a son must necessarily rank as ancestral property.

 “…a property gifted by a father to his son could not become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father or ancestor.”

 In the instant case, it was evident that respondent 4 did not get the disputed property as his share on the partition as claimed by petitioners. The property was acquired on transfer by his father who had originally acquired it.

The above facts make the property self-acquired of late Hari Prasad Sharma and thereafter, of respondent 4 consequently not ancestral property of petitioners.

Hence, respondent 4 has the right to deal and dispose of the property as he desires.

Section 58 (a) of the Transfer of Property Act, 1882 states that a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

Concluding the matter, Bench held that petitioners, sons of respondent 4 could not have any right to stop him in dealing with his self-acquired property in the manner he chose. Mortgage on the property does not create rights in favour of respondent 1.

In view of the above petition was dismissed. [Umesh Prasad Sharma v. Allahabad Bank, 2021 SCC OnLine Sikk 149, decided on 30-9-2021]


Advocates before the Court:

Mr A. Moulik, Senior Advocate with Ms K. D. Bhutia, Advocate for the petitioners.

Mr Sudesh Joshi, Advocate for Respondent 1,

Mr Pratap Khati, Advocate for Respondents 2 & 3.

None appears for respondents 4 and 5.

Case BriefsHigh Courts

Bombay High Court: Noting the misery of parents aged 90 years, G.S. Kulkarni, J., observed that,

“Daughters are daughters forever and sons are sons till they are married” albeit there would surely be exemplary exceptions.

A Sad Case

In the present matter, petitioner 1 alongwith his wife petitioner 2 and their daughter petitioner 3 dragged his parents-respondents 1 and 2, aged 90 and 89 years in protracted legal proceedings.

As a last resort, the parents had to invoke the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 on which the Maintenance Tribunal granted relief to the parents.

Aggrieved with the decision of the Maintenance Tribunal the present petition was filed.

Misery of Parents 

At such an advanced stage of lives, parents had to reach the tribunal as petitioners 1 and 2 were forcibly trying to grab the flat in which the parents were residing and had permitted the petitioners to reside who were harassing and torturing the parents since many years.

Flat in Question

The flat initially belonged to the father and later gifted it to his two daughters by gift deed.

Metropolitan Magistrate had prohibited petitioner 1 and 2 from committing any act of domestic violence and had restrained them from dispossessing or in any manner disturbing the possession of the mother from the shared household.

The above order was passed on the complaint of the mother.

Analysis

High Court noted that the present case was a ‘classic case’ where the petitioners 1 and 2 intended to prevent the parents from leading a normal life at their old age of about 90 years.

Defeating Parents right to lead a normal life

It was stated that the property in question was not an ancestral property on which the petitioner 1 could claim any legal right so as to keep himself on such property alongwith his family and foist themselves on the parents against their wishes by remaining on the property without any legal rights.

Hence, Maintenance Tribunal had rightly recognized the rights of the parents on the property.

Concluding the matter, Court noted that the present case was a story of desperate parents who intend to be at peace at such advanced stage in life.  Whether such bare minimum expectations and requirement should also be deprived to them by an affluent son, is a thought which the petitioners need to ponder on.

Adding to the above, Bench stated that the son seemed to be blinded in discharging his obligations to cater to his old and needy parents and on the contrary dragged them to litigation.

It is painful to conceive that whatever are the relations between the son and the parents, should the son disown his old aged parents for material gains?

While directing the petitioners to vacate the flat in question alongwith his family members, the petition was rejected. [Ashish Vinod Dalal v. Vinod Ramanlal Dalal, 2021 SCC OnLine Bom 2976, decided on 15-09-2021]


Advocates before the Court:

 Mr Yashpal Thakur with Mr Surendra Raja with Mr Mukund Pandya, for the Petitioner.

Mr Abhay Khandeparkar, Senior Advocate i/b. Mr Kunal Tiwari, for Respondent Nos.1 and 2.

Ms Vaishali Nimbalkar, AGP for the State.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ujjal Bhuyan and Madhav J. Jamdar, JJ., while explaining the provisions under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 also elaborated upon the concept of shared household and remanded the matter back to the Tribunal for Maintenance and Welfare of Parents and Senior Citizens.

In the present matter, the legality and validity of the order passed by the Deputy District Collector, acting as the Presiding Officer of the Tribunal for Maintenance and Welfare of Parents and Senior Citizens as challenged.

Respondent 1 was the mother-in-law of the petitioner. Petitioner alongwith her husband and minor daughter used to reside in a Flat along with respondent 1.

The above referred flat originally belonged to Anandlal Jasani who during his lifetime made nomination in respect of the said flat whereby 20% share of the flat was granted in favour of petitioner’s husband.

Since her marriage, the petitioner was living in the above-stated flat along with respondent 1 and the father-in-law till his death.

Petitioner claimed that the said flat is her matrimonial home as well as her shared household. Petitioner, her husband, daughter, and respondent 1 were residing in the said flat.

Further, the petitioner submitted that her husband was suffering from mental illness and depression because of which he required regular treatment and counselling and could not contribute to the earnings of the family.

Petitioners Allegation

Petitioner alleged that respondent 1 wanted to sell the stated flat and thereafter retain the sale consideration to herself to enable her to lead an affluent lifestyle. Petitioner and her husband were opposed to selling the flat.

Adding to the above, petitioner submitted that the said flat was not self-acquired property of respondent 1, rather it was an ancestral property of the family of the petitioner’s husband wherein petitioner’s husband, petitioner and their minor daughter had equal rights, title and interest.

Further, it was added that respondent 1 had the motive of ousting the petitioner, her husband and minor daughter from the flat and that was the reason why she filed a complaint before the Tribunal for Maintenance and Welfare of Parents and Senior Citizens for eviction of the petitioner and her husband from the flat to allow her to reside in the flat all by herself.

This Court had issued an order dated 15-04-2021 stating that no coercive steps should be taken against the petitioner.

Analysis, Law and Decision

Bench noted that Tribunal held that the flat was an ancestral property and that both respondent 1 and petitioner along with her husband had joint rights. In so far sale of the flat was concerned, it was beyond the jurisdiction of the tribunal.

In Tribunal’s opinion, as per Sections 4(2) and (3) of the 2007 Act, it was the obligation of the children or the relatives to maintain a senior citizen to the extent of the needs of such senior citizen.

Based on Sections 4,5,9, 13 and 23 of the 2007 Act, Tribunal decided and directed the petitioner and her husband to vacate the flat and to hand over the possession to respondent 1.

Whether the flat in question is a shared household and that petitioner has a right to reside in the shared household?

Supreme Court in S. Vanitha v. Deputy Commissioner, 2020 SCC OnLine SC 1023 concluded that claim of the appellant that the premises constitute a shared household within the meaning of the 2005 Act would have to be determined by the appropriate forum. The claim cannot be simply obviated by evicting the appellant in the exercise of the summary powers entrusted by the 2007 Act.

Question for consideration:

Whether the Tribunal under the 2007 Act can order eviction of a person from tenement in which he has ownership right to the extent of 20%?

Whether having regard to the mandate of Section 4 of the 2007 Act read with other provisions of the said 2007 Act, Tribunal can direct or order eviction of children or relative at the first instance itself or at a later stage to enforce an order of maintenance passed at the first instance?

Supreme Court in S. Vanitha v. Deputy Commissioner, 2020 SCC OnLine SC 1023 took the view that Tribunal under the 2007 Act may have the authority to order an eviction if it is necessary and expedient to ensure maintenance and protection of the senior citizen or parent.

Single Judge in Dattatrey Shivaji Mane v. Lilabai Shivaji Mane, 2018 SCC OnLine Bom 2246  took the view that the Tribunal can order eviction under the 2007 Act, as noticed above, such order was in the context of the tenement being the exclusive property of the parent/senior citizen which was not so in the present case.

Therefore, Court held that without expressing any opinion at this stage on the questions formulated by this Court above, it is essential for the Tribunal to first conclude, though summarily, as to whether the flat in question was an ancestral property or exclusively owned by respondent 1.

Further, the Court expressed that in terms of Section 9 of the 2007 Act, Tribunal must be satisfied that the parent has suffered neglect at the hands of the children or relatives or that they have refused to maintain the parent.

Under Section 5(3) of the 2007 Act, the Tribunal is mandated upon receipt of an application for maintenance to provide an opportunity of hearing to both the parties and to hold an enquiry for determining amount of maintenance.

Further, the procedure contemplated under the 2007 Act is summary in nature nonetheless Tribunal is required to find out as to whether the flat in question belongs exclusively to respondent 1 or it is an ancestral property where petitioner has also a right to ownership and/or residence through her husband.

Tribunal is also required to deal with the contention of petitioner that the flat in question is her shared household wherefrom she cannot be evicted.

As the Supreme Court had pointed out in S. Vanitha v. Deputy Commissioner2020 SCC OnLine SC 1023, both parents / senior citizens and the daughter-in-law are vulnerable groups in the Indian context and for protection of their rights the 2005 Act and the 2007 Act have been enacted.

In the above backdrop, the claims of the contesting parties would have to be decided which unfortunately does not appear to be the case in the instant proceeding. 

Hence, the High Court set aside the Tribunal’s order and remand the matter back to the Tribunal for fresh decision.[Ritika Prashant Jasani v. Anjana Niranjan Jasani, 2021 SCC OnLine Bom 1802, decided on 13-08-2021]


Advocates before the Court:

Mr. Kishor Maru for Petitioner. Mr. Anoshak Daver a/w. Ms. Kausar Banatwala, Ms. Neuty Thakkar and Ms. Tanishka Desai i/b. Mr. Tushar Goradia for Respondent No.1.
Ms. Anjana N. Jasani, Respondent in person.
Ms. Ritika Jasani, Petitioner in person.

Op EdsOP. ED.

Introduction

In 2020, the State Legislature of Uttar Pradesh passed the U.P. Revenue Code (Amendment) Act, 2020 which received the assent of the Governor on 28-8-2020. The much welcomed, progressive and liberative Amendment Act recognised rights of the third gender in matters regarding property ownership, inheritance and succession which before any such amendment were available only to male and female members of the society. However, the amendment fails to put an end to the preferential treatment given under Sections 108[1], 109[2], 110[3] and 112[4]of the U.P. Revenue Code, 2006 to the male relatives and unmarried women relatives in line of succession, the 2006 Code discriminates the married women relatives to their disadvantage by placing them on lower order of succession.

Section 108(1) lays down the principles to be followed for devolution of holdings of a male bhumidhar, asami or government lessee, it reads out to realise a preference in treatment of the heirs mentioned in any preceding clause of Section 108(2), it further states that the heirs in preceding clauses shall inherit exclusively and irrespective of the rights of heirs mentioned in succeeding clauses, that is to say, those in clause (a) shall be preferred to those in clause (b) and so on, in succession.

The abovesaid principles when put into action give out a discriminating effect against the married female class, due to the arrangement of heirs in Section 108(2) extracted below:

(2) The following relatives of the male third gender bhumidhar, asami or government lessee are heirs subject to the provisions of sub-section (1), namely–

(a) Widow, or third gender spouse, unmarried daughters, third gender issue and the male lineal descendants in the male line of descent per stirpes:

Provided that widow, unmarried daughters, third gender issue and sons howsoever low shall inherit per stripes the share which would have devolved upon the predeceased son had he been alive.

(b) Mother and father.

(c) Married daughter.

(d) Brother, unmarried sister, third gender sibling being respectively the son and daughter, third gender issue of the same father as the deceased, and son, unmarried daughter, third gender issue of predeceased brother, the predeceased brother, having been the son of the same father as the deceased.

(e) Son’s daughter and third gender issue.

(f) Father’s mother and father’s father.

(g) Daughter’s son, third gender issue and unmarried daughter.

(h) Married sister.

(i) Half-sister, being the daughter of the same father as the deceased.

(j) Sister’s son, third gender issue and unmarried daughter.

(k) Half-sister’s son, third gender issue and unmarried daughter the sister having been the daughter of the same father as the deceased.

(l) Brother’s son’s son, third gender issue and unmarried daughter.

(m) Father’s father’s son, third gender issue and unmarried daughter.

(n) Father’s father’s son’s son, third gender issue and unmarried daughter.

(o) Mother’s mother’s son, third gender issue and unmarried daughter.

The above arrangement is purposefully arranged to deprive the married female relatives of the bhumidhar, asami or government lessee from inheriting holdings at par with other relatives to protect and safeguard the holdings from alienation.

Section 109 of the 2006 Code lays down the provisions regarding succession to women inheriting interest as a female heir. Under the scheme of this section where before or after the commencement of the Code, any woman inherits the interest of a male [third gender] bhumidhar, asami or government lessee in any holding and such woman dies, marries or remarries after such commencement then, her interest in the holding shall, subject to the provisions of Sections 107[5] and 112, devolve upon the nearest surviving heir of the last male [third gender] bhumidhar, asami or government lessee. The words and expression, “nearest surviving heir” are to be understood as per the provisions of the abovestated Section 108.  In case any woman inherits as a daughter, who has a surviving heir as mentioned in clause (a) of Section 110 then her interest shall devolve upon such surviving heirs, preferring the nearer heir against the remoter in same branch and excluding a widow who has remarried.

In the above set-up, it is evident even from blind eyes that a woman is made to choose between her right of inheritance and her right to marry or remarry and upon her death if she has no surviving heirs, her interest in the holding shall devolve upon the nearest surviving heir of the last male [third gender] bhumidhar, asami or government lessee.

The arrangement of heirs of a female bhumidhar, asami or government lessee under Section 110 of the 2006 Code again classifies on sex and marital status of heirs, it becomes immaterial of what marital status a male heir holds but it is imperative to determine the marital status of a female heir before she can even stand in line for succession, here again from protecting the holding from alienation.

Under Section 112 if two or more co-widows inherit the interest of a male tenure-holder, and any one of them dies or remarries without leaving any heir entitled to succeed in accordance with Section 108, the interest of such co-widow shall pass by survivorship to the surviving widow and where there are two or more surviving co-widows, then to the surviving co-widows in equal shares.

Therefore, in case a widow chooses to remarry she has to waive off her claim to the holding, if wanting to retain her interests, she must opt out of a resettlement in life and continue to live with the misery of a widow.

Bharat Ratna Dr B.R. Ambedkar stated, on the floor of the Constituent Assembly that in future both the legislature and the executive should not pay mere lip service to the directive principles but they should be made the bastion of all executive and legislative actions. Legislative and executive actions must be conformable to and effectuation of the fundamental rights guaranteed in Part III[6] and the directive principles of State policy enshrined in Part IV[7] and the Preamble[8] of the Constitution which constitutes conscience of the Constitution. Covenants of the United Nations Organisation (UNO) add impetus and urgency to eliminate gender-based obstacles and discrimination. Legislative action should be devised suitably to constellate economic empowerment of women in socio-economic restructure for establishing egalitarian social order. Law is an instrument of social change as well as the defender for social change. Article 2(e) of CEDAW enjoins the courts to breathe life into the dry bones of the Constitution, international conventions and the Protection of Human Rights Act, 1993[9] and to prevent gender-based discrimination and to effectuate right to life including empowerment of economic, social and cultural rights to women.

The friction in law 

I. The bare text of law

A. International law

The General Assembly of the United Nations adopted a declaration on 4-12-1986 entitled “The Declaration on the Right to Development” in which India played a crusading role for its adoption and ratified the same. Its preamble recognises that all human rights and fundamental freedoms are indivisible and independent. Article 1(1) assures right to development an inalienable human right, by virtue of which every person and all people are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realised. Article 6(1) obligates the State to observance of all human rights and fundamental freedoms for all without any discrimination as to race, sex, language or religion. Sub-article (2) enjoins that … equal attention and urgent consideration should be given to implement, promote and protect civil, political, economic, social and cultural rights.

Vienna Declaration on the Elimination of All Forms of Discrimination against Women (for short “CEDAW”) was ratified by the UNO on 18-12-1979. The Government of India which was an active participant to CEDAW ratified it on 19-6-1993 and acceded to CEDAW on 8-8-1993 with reservation on Articles 5(e), 16(1), 16(2) and 29 of CEDAW. The preamble of CEDAW reiterates that discrimination against women violates the principles of equality of rights and respect for human dignity; is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; hampers the growth of the personality from society and family and makes more difficult for the full development of potentialities of women in the service of their countries and of humanity. Poverty of women is a handicap. Establishment of a new international economic order based on equality and justice will contribute significantly towards the promotion of equality between men and women, etc. Article defines discrimination against women to mean “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”. Article 2(b) enjoins the States parties while condemning discrimination against women in all its forms, to pursue, by appropriate means, without delay, elimination of discrimination against women by adopting “appropriate legislative and other measures including sanctions where appropriate, prohibiting all discrimination against women”. To take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. Clause (c) enjoins to ensure legal protection of the rights of women on equal basis with men through constituted national tribunals and other public institutions against any act of discrimination to provide effective protection to women. Article 3 enjoins States parties that it shall take, in all fields, in particular, in the political, social, economic and cultural fields, all appropriate measures including legislation to ensure full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men. Article 13 states that “the States parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular”. Article 14 laid emphasis to eliminate discrimination on the problems faced by rural women so as to enable them to play in the economic survival of their families including their work in the non-monetised sectors of the economy and shall take all appropriate measures. Participation in and benefit from rural development and, in particular, shall ensure to such women the right to participate in the development programme to organise self-groups and cooperatives to obtain equal access to economic opportunities through employment or self-employment, etc. Article 15(2) enjoins States parties to accord to women in equality with men before the law, in particular, to administer property.

Article 5(a) of CEDAW to which the Government of India expressed reservation, does not stand in its way and in fact Article 2(f) denudes its effect and enjoins to implement Article 2(f) read with its obligation undertaken under Articles 3, 14 and 15 of the Convention vis-à-vis Articles 1, 3, 6 and 8 of the Declaration on the Right to Development. The directive principles and fundamental rights, though provided the matrix for development of human personality and elimination of discrimination, these conventions add urgency and teeth for immediate implementation. It is, therefore, imperative of the State to eliminate obstacles, prohibit all gender-based discriminations as mandated by Articles 14[10] and 15[11] of the Constitution of India. By operation of Article 2(f) and other related articles of CEDAW, the State should take all appropriate measures including legislation to modify or abolish gender-based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women.

B. Domestic law

A combined reading of Articles 15(1) and (3) of the Constitution of India positively protects acts or actions made in favour of empowerment or upliftment of women. Article 21[12] of the Constitution of India reinforces “right to life”. Equality, dignity of person and right to development are inherent rights in every human being. Life in its expanded horizon includes all that gives meaning to a person’s life including culture, heritage and tradition with dignity of person. The fulfilment of that heritage in full measure would encompass the right to life. For its meaningfulness and purpose every woman is entitled to elimination of obstacles and discrimination based on gender for human development. Women are entitled to enjoy economic, social, cultural and political rights without discrimination and on a footing of equality. Equally in order to effectuate fundamental duty to develop scientific temper, humanism and the spirit of enquiry and to strive towards excellence in all spheres of individual and collective activities as enjoined in Articles 51-A(h) and (j)[13] of the Constitution of India, facilities and opportunities not only are to be provided for, but also all forms of gender-based discrimination should be eliminated. It is a mandate to the State to do these acts. Property is one of the important endowments or natural assets to accord opportunity, source to develop personality, to be independent, right to equal status and dignity of person. Therefore, the State should create conditions and facilities conducive for women to realise the right to economic development including social and cultural rights.

The Hindu Succession (Amendment) Act, 2005[14] has availed the Hindu women coparcenary rights and thereby equal rights of succession as male coparceners, and being a central legislation, it enjoys primacy over any State law that may stand in contravention of it.

The U.P. Revenue Code, 2006, is a secular law that applies to all persons irrespective of their religion or belief. Therefore, the Hindus under the Hindu Succession Act, 1956[15] may draw significant benefits with regard to equal rights of succession, however there lies one area of discrimination which has not effectively been addressed by the 2005 Amendment.

Agriculture falls under the State List in the Seventh Schedule[16] to the Constitution and therefore any law made by the State of Uttar Pradesh in this regard prevails over the Hindu Succession Act, in such a case the 2006 Code enjoys primacy over the central law and therefore the married and unmarried women are placed on different pedestals for succession and find themselves in a situation of second graders, similar is the case with members of the other religion and belief.

Judicial pronouncements

The Supreme Court of India in C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil[17], observed that women have right to elimination of gender-based discrimination particularly in respect of property so as to attain economic empowerment, this forms a part of universal human rights that they have right to equality of status and opportunity which also forms part of the basic structure of the Constitution. Supreme Court is obliged to effectuate these rights of women, personal laws inconsistent with the constitutional mandates are void under Article 13[18].

In Valsamma Paul v. Cochin University[19], it was held that:

  1. Human rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedoms have been reiterated in the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. The human rights for women, including girl child are, therefore, inalienable, integral and an indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth – cultural, social and economical. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights. Convention on the Elimination of All Forms of Discrimination Against Women (for short “CEDAW”) was ratified by the UNO on 18-12-1979 and the Government of India had ratified as an active participant on 19-6-1993 and acceded to CEDAW and reiterated that discrimination against women violates the principles of equality of rights and respect for human dignity and it is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; it hampers the growth of the personality from society and family, making more difficult for the full development of potentialities of women in the service of the respective countries and of humanity.

In G. Sekar v. Geetha[20], the amendment introduced in Sections 6 and 23 of the Hindu Succession (Amendment) Act, 2005 was declared valid on the ground that the amendment is intended to achieve the object of Articles14 and 15 i.e. removal of gender inequality.

In C.B.Muthamma v. Union of India[21], it was held that in the face of equality of sexes being guaranteed under Articles 14 and 16(1)[22], any rule which debars a married woman being appointed or requires a woman employee to resign on her marriage, would be struck down as unconstitutional, because there is no such corresponding bar in the case of men who, too, are likely to be involved on domestic commitments, on marriage.

In Vineeta Sharma v. Rakesh Sharma[23], the Court concluded as under:

(i) The provisions contained in substituted Section 6[24] of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule[25] to the Act of 1956 or male relative of such female.

Conclusion

 It is only reasonable to deduce that the classification of women based on their marital status to decide their place in the order of succession under the 2006 Code is violative of their rights recognised under Articles 14, 15, 16 and 21 as present in the constitutional schema.  They cannot be made to choose between their right to marry and right to inherit property simply because such a mandate is against their dignity and an anathema to right to equality.

These issues having been much abated by the legal academia and even the Law Commission of India in its 174th[26], 204th[27] and 208th[28] Reports. After decades of legislative and judicial businesses, there still remains the stigma attached to inheritance of property by women, it is time that gender-based untouchability or second-grade treatment is done away with by way of social activism, targeted legislation and judicial guidance.


± 4th year student, Faculty of Law, BVDU, Pune.

[1]<http://www.scconline.com/DocumentLink/IN6YyRR0>.

[2]<http://www.scconline.com/DocumentLink/aQf7F7bi>.

[3]<http://www.scconline.com/DocumentLink/cg0s18Kq>.

[4]<http://www.scconline.com/DocumentLink/0B6xRe8j>.

[5]<http://www.scconline.com/DocumentLink/Au2n96uP>.

[6]<http://www.scconline.com/DocumentLink/aU9cZ86r>.

[7]<http://www.scconline.com/DocumentLink/K5tB3p6b>.

[8]<http://www.scconline.com/DocumentLink/8bvjrn3W>.

[9]<http://www.scconline.com/DocumentLink/2K2MTxa4>.

[10]<http://www.scconline.com/DocumentLink/h7G5KbD4>.

[11]<http://www.scconline.com/DocumentLink/9etOajU7>.

[12]<http://www.scconline.com/DocumentLink/VN1u87S9>.

[13]<http://www.scconline.com/DocumentLink/mAj3qHzU>.

[14]<http://www.scconline.com/DocumentLink/S9rw2b75>.

[15]<http://www.scconline.com/DocumentLink/7stFp3DE>.

[16]<http://www.scconline.com/DocumentLink/7x8jhePz>.

[17] (1996) 8 SCC 525

[18]<http://www.scconline.com/DocumentLink/cXoE51V8>.

[19] (1996) 3 SCC 545, 562-632

[20] (2009) 6 SCC 99

[21](1979) 4 SCC 260

[22]<http://www.scconline.com/DocumentLink/k8TMppSJ>.

[23] (2020) 9 SCC 1

[24]<http://www.scconline.com/DocumentLink/k0WmkSp1>.

[25]<http://www.scconline.com/DocumentLink/mv0LINWg>.

[26]<http://www.scconline.com/DocumentLink/N5gyaXFt>.

[27]<http://www.scconline.com/DocumentLink/VjqB7HZ8>.

[28]<http://www.scconline.com/DocumentLink/1cQGtHGS>.

Case BriefsHigh Courts

Madras High Court: G. Jaya Chandran, J., expressed that the individual property can blend with the ancestral property or with the joint family property but not vice versa.

Factual Matrix

In the present matter, it has been stated that the parties engaged in the dispute were descendants of K.N.T Manickam Chettiar. During the lifetime of K.N. Thandavaraya Chettiar, he and his 6 sons entered into a partition deed and got the same registered. Ancestral Properties and the properties accrued through joint family members exertion were divided into 7 lots put under schedule “A” to “G”.

Further, it was added that Schedule “A” was left to parents Thandavaraya Chettiar and his wife Unnamalaiammal, and later after their death to be divided among the 6 sons after clearing the parent’s debts if any.

Manickam Chettiar was allotted properties under “F” schedule and later the said properties were divided into 8 lots under schedule “A” to “H”. Properties listed under ‘A’ schedule was allotted to K.N.T Manickam Chettiar and the ‘B’ Schedule properties were allotted to his son M. Sivasubramaniam. On the demise of K.N.T Manickam Chettiar, properties left by him were divided amongst his children, after which M. Sivasubramaniam was allotted properties listed under Schedule ‘A’.

Sivasubramaniam after getting married had a son named ‘Saravanan’ and a daughter ‘Dhanuja Murali’. Later Sivasubramaniam re-married and from his second marriage he had a son ‘Manikandan’ and two daughters Kavitha and Vidya.

Present Suit by Saravanan for Partition

Sivasubramanian, Mnaikandan, Dhanuja Murali, Kavitha Senthil  and Vidhya Venkataragavan are the defendants. Saravanan contended that ‘A’ and ‘B’ schedule properties are properties in the name first defendant are ancestral properties. ‘C’ Schedule property purchased in the name of First Defendant Sivasubramanian is from out of joint family income.

Trial Court had dismissed the suit holding that the suit properties were not joint family properties and against the said dismissal, the present appeal was filed.

Point for Consideration

Whether the suit properties are ancestral properties to devolve upon the plaintiff by survivorship or it is a self-acquired property acquired by the 1st defendant to dispose of it as self -acquired?

Analysis, Law and Decision

The three categories of properties stood in the name of Sivasubramanian and one property not included stands in the name of Saravanan, who is the plaintiff.

First Category Property: It is the one that devolved upon Sivasubramanian when his father and others divided the ancestral and joint family property. This property is shown under Schedule ‘A’.

Second Category Property: It is the one devolved upon Sivasubramanian under the petition deed between him and his siblings.

Third Category Property: It is the property purchased in the name of Sivasubramanian in the year 2004 upon which, he had constructed a house and the property purchased in the name of Saravanan and construction put upon it.

Property in the name of Sivasubramanian alone is the subject matter of the present suit. Plaintiff excluded the property which stood in his own name and wanted to retain it as his self-acquired individual property and had contended that, it does not form part of the joint family property. Sivasubramanian’s daughters contended that the ‘C’ schedule property in the suit was their father’s self-acquired property and the property in the name of Saravanan was the joint family property purchased in Saravanan’s name.

Controversy:

The controversy is in respect to the property purchased and improved in the name of Saravanan (plaintiff) and Sivasubramanian (1st defendant) – Whether it is the self-acquired property of the individual or joint family property?

If any person says property has been purchased in the name of family members from out of joint contribution of the family members, then, the person who asserts the fact, should prove it.

In the present matter, both plaintiff as well as the 1st defendant were able to show their independent source of income for purchasing the property in their respective names.

Bench opined that since the ‘C’ schedule property stood exclusively in the name of 1st defendant and he had shown his independent source of income for purchasing the said property and improving it, the plaintiff cannot have right or share in the said property.

Trial Court miserably failed to note the ancestral nature of the property and other properties getting blended with the ancestral property.

Further to elaborate on the point of devolution of Hindu Male Mitakshara Property, Bench referred to the Supreme Court decision in: M. Arumugam v. Ammaniammal, (2020) 5 CTC 680.

While concluding, High Court held that an ancestral property is always an ancestral property, unless it gets divided among the existing coparceners. Even then, on the birth of a son and after 2005 amendments also daughter the coparcenary opens to them. Hence, Trial Court erred in the way in which it dealt with ‘A’ and ‘B’ schedule properties.

Hence partly allowing the appeal, Court decided that ‘A’ and ‘B’ schedule property are declared as ancestral property and available for partition, defendant’s 1 to 5 are entitled to share schedule ‘A’ and ‘B’ property equally. As far as ‘C’ schedule property, the plaintiff failed to prove that the said property as purchased from out of the income derived from the ancestral property. [P. Saravanan v. M. Sivasubramanian, 2021 SCC OnLine Mad 927, decided on 04-03-2021]


Advocates before the Court:

For the appellants: R. Subramanian, Senior Counsel for Gupta and Ravi

For R1 to R5: V. Lakshminarayanan, for R. Jayaprakash.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Suryawanshi, JJ., reiterated that father-in-law has a moral responsibility to maintain the widowed daughter-in-law.

The appeal has been filed under Sections 19 and 22 of the Family Courts Act, 1984 challenging the Family Court by which the petition filed by appellants against respondent for maintenance was dismissed.

Appellant 1—daughter in law and appellant 2 and 4 – grandchildren of the respondent. Appellants claimed maintenance from the respondent contending that the marriage of the first appellant with respondent’s son was solemnized under the Special Marriage Act, 1954.

Since the marriage was against the wishes of both the first appellant and her husband’s family members wishes, cases and counter cases were filed by the first appellant and respondent. Parag expired on 19-01-2000 and after his death, nobody took care of the appellants.

After the husband’s death, first appellant tried to reconcile with respondent but he refused to accept her as a daughter-in-law and appellant’s 2 to 4 as his grandchildren.

Respondent refused to maintain the appellant, hence the appellants were compelled to go to the widowed mother of the first appellant. She maintained the appellant till she expired in 2007 and after which the appellant had no source of income and they were unable to maintain themselves.

It was stated that due to paucity of funds, the second appellant could not pursue her studies after 12th standard. Even the other two minor children could not appear for exams.

Appellants were on the verge of being thrown out of their house due to non-availability of money for rent, whereas respondent was living a lavish lifestyle.

It has also been added that the late husband of the first appellant had his share in a property as the same was coparcenary property, hence appellants had their share in the said property.

Analysis, Law and Decision

Bench observed the facts and circumstances of the case and noted that the appellant’s counsel strenuously submitted that it was the moral duty of the father-in-law to maintain his widowed daughter-in-law and grandchildren and he cannot run away from his duty.

Points for consideration:

(i) Whether the appellants are entitled to maintenance from the respondent?

(ii) Whether the Family Court was justified in dismissing the claim of maintenance of the appellants? (iii) What order?

Court observed that there was no evidence on record that the first appellant was able to work and her deceased parents had left some property for her. Hence it was proved that the appellants were unable to maintain themselves.

In view of the evidence and material on record, it was found that there was a property which was the ancestral property in possession of the respondent that Parag during his lifetime or first appellant at any point of time were given share.

Since the first appellant was not remarried and the respondent had been getting pension, in Court’s opinion appellants were entitled to claim maintenance from the respondent.

In T. A. Laxhmi Narasamba v. Sundaramma, AIR 1981 Andhra Pradesh 88 the Full Bench of Andhra Pradesh High Court held thus ;

“The moral obligation of a father-in-law possessed of separate or self-acquired property to maintain the widowed daughter-in-law ripens into a legal obligation in the hands of persons to whom he has either bequeathed or made a gift of his property.”

Division Bench of this Court in Madhukar v. Shalu, 2013 (6) MhL.J. Page 391, held that to maintain the widowed daughter in law is the legal responsibility of father-in-law.

Sections 19 and 22 of the Act create first obligation to maintain a widowed daughter-in- law on the father-in-law. The obligation only shifts on the father of the widow, if the father-in-law prove his inability to maintain her.

Hence, in view of the above decisions and facts and circumstances of the case, Bench held that the family court misread and misconstrued the provisions of Sections 19 and 22 of the Family Courts Act and since it was proved that the respondent held estate/coparcenary property of the deceased, the respondent was under obligation to provide maintenance to the appellants.

[Laxmi v. Santosh,  2021 SCC OnLine Bom 359, decided on 23-02-2021]


Advocates who appeared for the matter:

S.P. Kshirsagar, Advocate for appellants

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua J., disposed off the petition without any interference with impugned orders.

The facts of the case are such that the petitioner is the legally wedded wife of defendant having solemnized a marriage with him in the year 1994 and has a son out of the wedlock. Due to marital discord, plaintiff started residing with her father since the year 1998 along with the son.  An application for grant of maintenance under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed by petitioner before the Court of learned Judicial Magistrate 1st Class, Manali. Apprehending defeat of her maintenance claim by the defendant by selling the suit land an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure (CPC) was filed for restraining the defendant from alienating, transferring and for creating charge over the suit land which stands dismissed by the trial Court. The order was later upheld by the Appellate Court. Aggrieved by the same, instant petition was filed under Article 227 of the Constitution of India.

Counsel for the petitioner relied on the judgment titled  V. Tulasamma v. Sesha Reddy, (1997) 3 SCC 99 and submitted that both the Courts have misdirected themselves in treating the civil suit as one filed by a coparcener i.e the wife to restrain and injunct Karta i.e. the husband from alienating the suit land, whereas the civil suit was a case instituted by the wife for creation of charge over the property of her husband in lieu of maintenance and, therefore, permanent prohibitory injunction for restraining the defendant was sought for.

Counsel for the respondent relied on a judgment titled Sunil Kumar v. Ram Prakash (1998) 2 SCC 77 and submitted that a coparcener has no right to get an injunction against Karta. He further submitted that respondent being Karta has legal right to alienate ancestral property in case of legal necessity and the petitioner has no right to pray for injunction restraining the defendant from alienating the suit land.

Courts observation on maintenance claim of wife vis-à-vis creation of charge over husband’s property

The Court relied on a judgment titled Kannan v. Maragathammal, 2012 SCC Online Mad 2285 and observed

“The Hindu Law Texts and the important commentaries impose a legal personal obligation on a husband to maintain his wife irrespective of his possession of any property, whether joint or self-acquired. They recognise the subordinate interest of the wife in her husband’s property arising out of her married status. They also prohibit the alienation of properties by the husband which has the effect of depriving her and other dependants of their maintenance…”

“…..The decisions of the various High Courts tow the same line, recognise her subordinate interest in her husband’s property and enforce his personal obligation by creating a charge on his properties either self-acquired or ancestral. A wife, therefore is entitled to be maintained out of the profits of her husband’s property and, if so, under the express terms of S.39 she can enforce her right against the properties in the hands of the alienee with notice of her claim. Though the right of the wife to separate maintenance does not form a charge upon her husband’s property, ancestral or self-acquired, yet, when it becomes necessary to enforce or preserve such a right effectively, it can be made a specific charge on a reasonable portion of the property. If the right of maintenance is imperiled or jeopardised by the conduct and dealings of the husband or father with reference to his properties, the Court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children. Such a charge can be created not only over the properties in the hands of the husband or father but also over properties transferred by him either gratuitously or to persons having notice of the right to maintenance.”

 In view of the observations above, the Court held that in the instant case only relief under Order 39, Rules 1 & 2, Code of Civil Procedure is sought and claim for maintenance has been submitted without presenting any Court order for the same. In light of the submission made by the petitioner herself that respondent has right to alienate property only in case of legal necessity, the Court further held that property being an ancestral property petitioner’s ‘son’ has not been made a party. In the said course of things a charge has not been created over the suit land towards maintenance of the plaintiff but the plaintiff i.e. the petitioner has right to take legal recourse in case of alienation of property.

In view of the above, the instant petition is disposed off without any interference in impugned orders.[Kubja Devi v. Chhape Ram,  2020 SCC OnLine HP 1829, decided on 05-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Op EdsOP. ED.

Let’s have a look at the Most-Viewed Blog Posts of the SCC Online Blog in the Year 2019:

“Over the years there have been many important changes in the way cheques are issued/bounced/dealt with. Commercial globalisation has resulted in giving a big boost to our country. With the rapid increase in commerce and trade, use of cheque also increased and so did the cheque bouncing disputes.[1] The object of Sections 138-142 of the Negotiable Instruments Act, 1881  is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques.[2]”

Section 498-A was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. A punishment extending to 3 years and fine has been prescribed. The expression “cruelty” has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of “cruelty”.

  • Economically Weaker Section (EWS) | Reservation For EWSs In Direct Recruitment in Civil Posts And Services In Government of India

  • Adultery [S. 497 IPC and S. 198(2) CrPC]

    The word “adultery” derives its origin from the French word “avoutre”, which has evolved from the Latin verb “adulterium” which means “to corrupt”[1]. The dictionary meaning of adultery is that a married man commits adultery if he has sex with a woman with whom he has not entered into wedlock.

    Under Indian law, Section 497 IPC  makes adultery a criminal offence, and prescribes a punishment of imprisonment upto five years and fine. The offence of adultery under Section 497 is very limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. The offence is committed only by a man who had sexual intercourse with the wife of another man without the latter’s consent or connivance. The wife is not punishable for being an adulteress, or even as an abettor of the offence[2]. Section 198 CrPC deals with a “person aggrieved”. Sub-section (2) treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed, with the permission of the court. It does not consider the wife of the adulterer as an aggrieved person.

    Section 497 IPC and Section 198(2) CrPC together constitute a legislative packet to deal with the offence of adultery[3]which have been held unconstitutional and struck down by the Supreme Court in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

  • Maintenance – Wife

“Maintenance” is an amount payable by the husband to his wife who is unable to maintain herself either during the subsistence of marriage or upon separation or divorce. Various laws governing maintenance are as follows:

for Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956

for Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986

for Parsis – Parsi Marriage and Divorce Act, 1936

for Christians – Divorce Act, 1869

secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954.

  • Live-In Relationship and Indian Judiciary

    It is being truly said that the only thing which is constant in this world is change. Indian society has observed a drastic change in its living pattern in the past few years. People are slowly and gradually opening their minds towards the idea of pre-marital sex and live-in relationships. However, this change has been continuously under criticism and highly discussed as such concepts lack legality and acceptance by society. Unlike marriage, in live-in relationships, couples are not married to each other but live together under the same roof that resembles a relation like marriage. In other words, we can say it is a cohabitation. In India, only those relations between a man and a woman is considered to be legitimate where marriage has taken place between the two based on existing marriage laws otherwise all other sort of relationships are deemed to be illegitimate.

    The reason behind people choosing to have a live-in relationship is to check the compatibility between couples before getting legally married. It also exempts partners from the chaos of family drama and lengthy court procedures in case the couple decides to break-up. Whatever the reason, it is very evident that in a conventional society like ours, where the institution of marriage is considered to be “sacred” an increasing number of couples choose to have a live-in relationship, even as a perpetual plan, over marriage. In such circumstances, many legal and social issues have arisen which have become the topic of debate. With time many incidents have been reported and seen where partners in live-in relationships or a child born out of such relationship have remained vulnerable for the very simple reason that such relationships have been kept outside the realm of law. There has been gross misuse by the partners in live-in relationships since they do not have any duties and responsibilities to perform. This article seeks to analyse the judicial response to the concept of live-in relationships so far. It also talks about the rights available to live-in partners in India and also, what is the status of children born out of such relationships.

  • Bom HC | Order of Maintenance under DV Act set aside in absence of any act of Domestic Violence committed by Husband

  • Maintenance – Children and Parents

In India, beneficial provisions for maintenance of children and parents are provided under various Acts. Objective of such provisions is to achieve a social purpose and to prevent vagrancy and destitution and to provide simple, inexpensive and speedy mechanism for providing support and maintenance to children and parents.

“the limited interest or Hindu Woman’s Estate [acquired under Section 3 of the Hindu Women’s Right Property Act] shall be held by the widow as full owner in terms of provisions of Section 14(1) of Hindu Succession Act, 1956?

“Section 23 of the DV Act does not provide a substantive right to parties but is a provision which empowers the trial court to pass an order granting interim maintenance in a petition filed under Section 12 of the DV Act. Merely because the trial court has not exercised the power under Section 23 of the DV Act, when a substantive petition under Section 12 of DV Act was filed and chose to pass an order only when a separate application under Section 23 of the DV Act was filed, does not mean that a Magistrate does not have the power to pass an order with effect from the date of filing of the substantive petition under Section 12.”


† Legal Editor, EBC Publishing Pvt. Ltd.

Case BriefsHigh Courts

Rajasthan High Court: Sabina, J., dismissed the petition moved for dismissing the suit for partition qua the petitioner since no ground for interference was made out.

The petitioner filed a petition under Article 227 of the Constitution of India challenging the order passed by the trial court.

The respondents had filed a suit for partition and cancellation of sale deed, challenging the Will executed by Bardi Bai.  The petitioner moved an application before the trial court that the suit qua him be dismissed as he had purchased the property through registered sale deed from its owner Bardi Bai.

The said application was dismissed by the trial court vide the impugned order after they observed that it was yet to be determined as to whether the property purchased by the petitioner was the ancestral property of Bardi Bai or it was an acquired property.

The Court held that the said question was to be decided by the trial court after the parties led their evidence with respect to their pleas. The learned trial court had rightly dismissed the application moved by the petitioner. [Aamil Khan v. Shanti Bai, 2019 SCC OnLine Raj 4023, decided on 14-10-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This petition was filed before the Bench of Vivek Rusia, J.

Facts of the case were such that petitioners are daughters of respondent who had sold his property to other respondents. After the sale was concluded one of the respondent to whom the property was sold filed an application under Sections 109 and 110 of M.P. Land Revenue Code, 1959 before the Tehsildar seeking mutation of his name which was allowed.

Petitioner being aggrieved by the same filed an appeal before the Sub-Divisional Officer Revenue, Garoth. SDO allowed the appeal and set aside the order passed by Tehsildar on the ground that the Tehsildar did not inquire about the status of the property if it was a self-earned property or ancestral property before passing the order of mutation. Being aggrieved by the order of SDO an appeal was preferred before the Additional Commissioner who set aside the order passed by SDO and therefore confirming the order of Tehsildar, hence, this petition was filed.

It was brought before Court that petitioners had already filed a Civil Suit challenging the sale deed which was executed by respondent in favour of one of the other respondent claiming their right and title over the property.

High Court observed the settled law that the orders passed by the Revenue Authority were not binding on the Civil Court and Revenue Court could not have decided the title of the property. Court viewed that lest a Civil Suit is pending the issues raised in this petition could be decided before Civil Court. With the aforementioned observation, this petition was dismissed. [Bharat Kunwar v. Mangilal, 2019 SCC OnLine MP 609, dated 05-04-2019]

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., upheld the order of the first Appellate Court whereby it reversed the trial court’s decision and held that the sister (respondent herein) was entitled to a right in the ancestral property along with her brother (appellant herein).

One Waman Bala died in 1944 leaving behind the parties herein and their mother. The character of the suit property was ancestral. After Waman’s death, the name of the brother was alone entered into the records of rights of the suit property. Their mother left the house in 1972 in a state of insanity and her whereabouts were not known. The sister, apprehending alienation of the property by the brother, filed a suit claiming her rights in the same. The suit was defended by the brother and the trial court dismissed the suit. The sister challenged the said decision and the first Appellate Court reversed the trial court’s decision. Aggrieved thereby, the brother filed the present appeal.

While discussing the law in the subject, the High Court referred to Section 3 (devolution of property) of the Hindu Women’s Right of Property Act, 1937. As per Section 3(2) and (3), if a Hindu governed by any school of law other than Dayabhaga dies, his right in Hindu Joint family property devolves on his wife with limited interest which is known as the Hindu Woman’s Estate. Also as per sub-section (1) of Section 14 (property of a female Hindu to be her absolute property) of the Hindu Succession Act, 1956 a Hindu female is a full owner of any property possessed by her, and this includes all modes of acquisition including inheritance or device [Explanation to Section 14(1)].

Thus, observed the Court: “the limited interest or Hindu Woman’s Estate [acquired under Section 3 of the Hindu Women’s Right Property Act] shall be held by the widow as full owner in terms of provisions of Section 14(1) of Hindu Succession Act, 1956″.

In the case at hand, the Court stated: “it is not in dispute that mother of the plaintiff and the defendant had died after 1956 and, therefore, her interest in the property would devolve as per the scheme in terms of Section 15 of the Hindu Succession Act, 1956. Thus, her property will devolve upon her sons, daughters and husband.”

On the holistic view of the matter, the Court found no error with the order of the first Appellate Court. Therefore, the present appeal was dismissed. [Jagannath Waman Undre v. Yamunabai Sitaram Kadam, 2019 SCC OnLine Bom 566, decided on 01-04-2019]