Case BriefsSupreme Court

Supreme Court: In a case where challenge was made to declare Section 50(a) of the Delhi Land Reforms Act, 1954 unconstitutional being ultra vires Articles 14, 15, 254 and 21 of the Constitution of India, the bench of Hemant Gupta and Vikram Nath*, JJ has held that all the legislations included in the Ninth Schedule to the Constitution before the Judgment in the case of Kesavananda Bharati vs. State of Kerala, 1973 (4) SCC 225 that is 24.04.1973, would stand protected under Article 31B of the Constitution and, therefore, the challenge to the validity of provisions of the 1954 Act must fail.

The Provision in question

Section 50. General order of succession from males: – Subject to the provisions of Section 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of the succession given below:

a) Male lineal descendants in the male line of the descent:

Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive:

Provided further that the son or sons of a predeceased on how low so ever shall inherit the share which would have devolved upon the deceased if he had been then alive:

b) Widow; c) Father; d) Mother, being a widow; e) Step mother, being a widow; f) Father’s father; g) Father’s mother, being a widow; h) Widow of a male lineal descendant in the male line of descent; i) Brother, being the son of same father as the deceased; j) Unmarried sister; k) Brother’s son, the brother having been a son of the same father as the deceased; l) Father’s father’s son; m)Brother’s son’s son; n) Father’s father’s son’s son; and o) Daughter’s son.

Grounds of challenge

(i) violation of Article 14 of the Constitution;

(ii) women being discriminated despite world over the rights of women were being empowered;

(iii) Hindu Succession Act, 1956 would prevail over the 1954 Act.

Analysis

Repugnancy – Article 254 of the Constitution

It was argued before the Court that Succession provided in 1956 Act will prevail over the succession provided in 1954 Act in view of Article 254 of the Constitution, as there is clear repugnancy. The Court rejected this submission and held that the question of repugnancy arises only if both the Parliament and the State legislature have made law with respect to any one of the matters enumerated in the Concurrent list (List III). However, in the present case two enactments of 1956 and 1954 are relatable to Entries in List III and List II respectively. Thus, no question of repugnancy would arise in view of Article 254 of the Constitution.

Special Law

The argument relating to 1956 Act being a special law and 1954 being a general law is completely misconceived as, it has been expressed by the Supreme Court as well as High Courts, on several occasions, that any State enactment relating to Agricultural land tenures is a special law.

Repeal of an enactment – Effect

The Court also rejected the contention that Section 4(2) of the 1956 Act having been deleted by an amendment in 2005, there would be no justification to apply the provisions of succession given in the 1954 Act as the same would now be governed by the 1956 Act as by virtue of Section 6 of the General Clauses Act, the repeal of an enactment would not affect the previous operation of such an enactment.

In the case at hand, the deletion of Section 4(2) took place w.e.f 09.09.2005. Therefore, the effect of the deletion can only be in respect of successions which opened on or after 09.09.2005. This is because under Section 6(b) and 6(c) of the General Clauses Act repeal cannot affect the previous operation of any enactment so repealed and cannot affect the previous operation of any enactment so repealed and cannot affect any right which may have been acquired or accrued.

In the present case, as the succession has opened prior to 09.09.2005, the rights of the descendants in terms of Section 50 became crystallized on account of the said Section read with Section 4(2) of the 1956 Act, therefore, the deletion of Section 4(2) cannot have retrospective effect.

Also, the 1954 Act is a special law, dealing with fragmentation, ceiling, and devolution of tenancy rights over agricultural holdings only, whereas the 1956 Act is a general law, providing for succession to a Hindu by religion as stated in Section 2 thereof. The existence or absence of Section 4(2) in the 1956 Act would be immaterial.

Gender Bias

While it was argued before the Court that the provisions of Section 50(a) of the 1954 Act are violative of Articles 14 and 15 of the Constitution of India as there is clear discrimination on the ground of sex, the Court held that the argument was invalidated once it was held that there can be no challenge to the 1954 Act as the said legislation is included in the Ninth Schedule of the Constitution of India.

[Har Naraini Devi v. Union of India, CIVIL APPEAL NO. 22957 OF 2017, decided on 20.09.2022]


*Judgment by: Justice Vikram Nath

Case BriefsSupreme Court

Supreme Court: The bench of SA Nazeer and Krishna Murari*, JJ has held that if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. However, if she dies leaving behind her husband or any issue, then Section 15(1)(a) of the Hindu Succession Act, 1956 comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.

Scheme of the Hindu Succession Act, 1956 and the relevant provisions

The main scheme of the Act is to establish complete equality between male and female with regard to property rights and the rights of the female were declared absolute, completely abolishing all notions of a limited estate. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property. The Act lays down a uniform and comprehensive system of inheritance and applies, inter-alia, to persons governed by the Mitakshara and Dayabhaga Schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri Laws. The Act applies to every person, who is a Hindu by religion in any of its forms including a Virashaiva, a Lingayat or a follower of the Brahmo Pararthana or Arya Samaj and even to any person who is Buddhist, Jain or Sikh by religion excepting one who is Muslim, Christian, Parsi or Jew or Sikh by religion.

Section 15 lays down the general rules of succession in the case of female Hindus. The scheme of sub-Section (1) of Section 15 goes to show that property of Hindu females dying intestate is to devolve on her own heirs, the list whereof is enumerated in Clauses (a) to (e) of Section 15 (1). Sub-Section (2) of Section 15 carves out exceptions only with regard to property acquired through inheritance and further, the exception is confined to the property inherited by a Hindu female either from her father or mother, or from her husband, or from her father-in-law. The exceptions carved out by sub-Section (2) shall operate only in the event of the Hindu female dies without leaving any direct heirs, i.e., her son or daughter or children of the pre-deceased son or daughter.

The basic aim of the legislature in enacting Section 15(2) is to ensure that inherited property of a female Hindu dying issueless and intestate, goes back to the source.

Thus, if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. In case, a female Hindu dies leaving behind her husband or any issue, then Section 15(1)(a) comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.

Section 15(1)(d) provides that failing all heirs of the female specified in Entries (a)-(c), but not until then, all her property howsoever acquired will devolve upon the heirs of the father. The devolution upon the heirs of the father shall be in the same order and according to the same rules as would have applied if the property had belonged to the father and he had died intestate in respect thereof immediately after her death.

Applicability of the law on the case at hand

Suit for partition was filed by Thangammal, daughter of one Ramasamy Gounder, claiming 1/5th share in the suit property. The said Ramasamy Gounder had an elder brother by the name of Marappa Gounder. Ramasamy Gounder, predeceased his brother Marappa Gounder who died on 14.04.1957 leaving behind the sole daughter by the name of Kuppayee Ammal who also died issueless in 1967. Further case set up by the plaintiff/appellant was that after the death of Marappa Gounder, his property was inherited by Kuppayee Ammal and upon her death in 1967, all the five children of Ramasamy Gounder are heirs in equal of Kuppayee and entitled to 1/5th share each.

Noticeably Kupayee Ammal, after inheriting the suit property upon the death of Marappa Gounder, died after enforcement of Hindu Succession Act, 1956, which has amended and codified the Hindu Law relating to intestate succession among Hindus.

Since the property in question was admittedly the self-acquired property of Marappa Gounder despite the family being in state of jointness upon his death intestate, his sole surviving daughter Kupayee Ammal, will inherit the same by inheritance and the property shall not devolve by survivorship.

Further, since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughter’s being Class-I heirs of their father too shall also be heirs and entitled to 1/5th Share in each of the suit properties.

[Arunachala Gounder v. Ponnusamy, 2022 SCC OnLine SC 72, decided on 20.01.2022]


*Judgment by: Justice Krishna Murari


Counsels

For appellant: Advocate P.V. Yogeswaran

For respondent: Advocate K.K. Mani

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

Bombay High Court: Addressing a matter pertaining to the widow’s right of inheritance on the property of the deceased husband, S.M. Modak, J., observed that,

Both wife and mother will have an equal share in light of Section 24 of the Hindu Succession Act, which was in existence at the time of the dispute.

Substantial Question of Law:

Whether a widow can claim the estate of the husband after re-marriage?

High Court referred to the decision of Supreme Court in Kasturi Devi v. Deputy Director of Consolidation, AIR 1976 SC 2595. In the said decision, “the effect of re-marriage on her right to claim share in the property” was considered, though the status of the woman in the said decision was not of a widow but of a mother. Hence the claim pertained for inheritance not as a widow but as a mother. To this issue it was held that there won’t be any effect on her share of inheritance from a son even after she re-married.

Issue in the present matter was:

What is the effect on widow’s right of inheritance (not in the property of a son) on the property of the deceased husband?

Deceased was married to respondent 1 and the present appellant is the mother of the deceased.

It was stated that deceased had nominated his wife for the dues that he was entitled to from the Indian Railways, though it came on record that the deceased and wife were not living together due to the existence of a dispute between them.

After the death of the husband, defendant-wife re-married.

In view of the above events, the plaintiff claimed dues from Indian Railways and informed Indian Railways about the re-marriage of defendant. On non-provision of marriage certificate, the employer disbursed the dues in favour of the wife.

Trial Court favoured the plaintiff and decreed the suit in toto.

Hence, Indian Railways was directed to pay all the due to the plaintiff, though the Appellate Court recognized the share of defendant and directed the employer to disburse the amount to plaintiff and defendant.

Appellate Court’s decision has been challenged before this Court.

Provisions of Law

It was stated that the dues of employer are nothing but the self-acquired property of the deceased and as per Hindu Succession Act, Section 24, the widow loses rights if she remarries on the date when succession opens. It is also true that the said Section was omitted from the Act o 1956 w.e.f 9th September, 2005.

Since the deceased had expired on 19-04-1991, so we have to see what the position in force at that time was. Section 24 was in existence at that point of time, hence as per the said provision, whether it can be said that defendant can be excluded from succeeding the property of the deceased?

Section 14 of the Act of 1956 makes the female Hindu being absolute owner if she possessed the property. Whereas Section 24 of the said Act disinherits the widow if she re-marries.

A very pertinent fact that was noted by the Bench was that, if the widow had not re-married when the succession opened, the disqualification under Section 24 of the Act of 1956 wouldn’t be applicable.

Defendant-Sunanda re-married in May, 1991 (i.e. after opening of succession on 19-04-1991).

Furthermore, the Court stated that since the plaintiff and defendant were class 1 heirs, they were entitled to get equal share in the property of the deceased and as contemplated under Section 10 of the Act of 1956, the widow and the mother of the intestate takes one share each.

Therefore, both the wife and mother were entitled to get 50% from the property of the deceased.

Doctrine of enrichment

Since the wife is not solely entitled to get the whole amount, she was bound to return 50% of the amount to the plaintiff.

Respondent 1 was to refund the amount with 6% interest.

Appeal was disposed of in view of the above discussion. [Jaiwantabai v. Sunanda, Second Appeal No. 144 of 2007, decided on 23-08-2021]


Advocates before the Court:

Shri Ved Deshpande h/f Shri A.S. Mardikar, Senior Advocate for the Appellant Shri J.B. Gandhi, Advocate for Respondent 1.
Shri N.P. Lambat, Advocate for Respondent 2.

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: P.T. Asha, J., addressed a matter in relation to adoption and modification in the birth certificate of a minor in terms of change in the name of the biological father of the child.

Legal status of a biological daughter

Petitioners are the adopted father and biological/natural mother of minor seeking direction from the Court that petitioner 1 be appointed as a father of the minor female child and consequently, the minor child be entitled to the legal status of a biological daughter with all the rights of succession and inheritance in respect of the adopted father and a modified birth certificate of the minor be issued.

Adoption Regulations and the JJ Act

Petitioners have contended that the conditions prescribed under Adoption Regulations and the Juvenile Justice Act have fully been complied with while filing the present petition.

Bench on perusal of the facts and submission in the present matter stated that the parties are all Hindus and therefore bound by the provision of the Hindu Adoption and Maintenance Act, 1956.

In the instant matter, the biological father of the minor child died three years back, and hence proviso to Section 9(2) of the Hindu Adoption and Maintenance Act, 1956 would not be applicable to the case.

Adoption

Court observed that it is well open to the biological mother of the minor child to give her child to adoption and since both petitioner 1 and the petitioner 2 i.e. the biological mother of the child are happily married and living together and the minor has been living with them, there is no impediment to the said prayer of adoption.

 Birth Certificate of the minor cannot be modified

Bench stated that on the date when the birth certificate of the minor was issued, the biological father was alive and it is him who has been described as the father of the minor child in the birth certificate.

Adoption does not sever the relationship of the minor with her biological father. 

Only exception to the above is, when the biological father himself renounces his right as father of the minor and consents for the child to be taken by the adoptive father.

Court added that even in the above-stated cases, only the status of being a biological father does not change, only the status of adoptive father, custody and maintenance of the minor child changes hands.

In the present matter, the biological mother cannot deprive the minor child’s right to have the name of her biological father in her birth certificate.

Registration of the births is governed by the provisions of the Registration of Births and Deaths Act, 1969.

Under what circumstances can a correction or cancellation of the entry in the register of births and deaths be made?

Court stated that only under the following circumstances the birth certificate can be modified:

(a) When the entry is erroneous in form or substance; and

(b) The entry has been fraudulently or improperly made.

Under Section 15 of the Registration of Births and Deaths Act, 1969 it is clear that the original entry cannot be corrected/deleted and the incorporation of the new details can be made only in the margin.

In the present matter, Rule 5 of Tamil Nadu Registration of Births and Deaths Rules, 2000 talks about adoption and prescribes a form. Serial Nos. 7 and 8 relate to the name of the adoptive mother and the adoptive father.

Hence, the petitioner’s request to delete the biological father’s name from the original birth certificate is not legally sustainable since the rules clearly provide for incorporating the name of the adoptive parents separately in column nos. 7 and 8 as adoptive parents and not as natural parents.

Court held that the substitution of the name of petitioner 1 as the biological father of the minor cannot be permitted and taking into consideration the Rule 5 of Tamil Nadu Registration of Births and Death Rules, 2000, Court directed for issuance of a birth certificate as contained in Form 1-A of the Rules by effecting entries in column nos. 6,7,8,9 and 10 and the original birth certificate shall remain unaltered.

In view of the above, the original petition was allowed. [Vivek Narendran, In Re., 2020 SCC OnLine Mad 1758, decided on 20-07-2020]

Case BriefsSupreme Court

Supreme Court: The bench of Deepak Gupta and Aniruddha Bose, JJ has held that grant of probate has nothing to do with inheritance.  It said,

“The jurisdiction of a probate court is limited to decide whether the Will is genuine or not. The Will may be genuine but the grant of probate does not mean that the Will is valid even if it violates the laws of inheritance.”

Giving an example, the Court explained that supposing a Hindu bequeathes his ancestral property by a Will and probate of the Will is granted, such grant of probate cannot adversely affect the rights of those members of the coparcenary who had a right in the property since birth. Similar is the case in Goa. The legitime is the right of the heirs by birth. When both the spouses are alive, they own half of the property. Mere grant of probate will not mean that the husband can Will away more than half of the property even if that be in his name.

The Court was deciding the question as to, “Whether succession to the property of a Goan situate outside Goa in India will be governed by the Portuguese Civil Code, 1867 as applicable in the State o Goa or the Succession Act, 1925”.

Noticing that the Portuguese Civil Code continued to apply in Goa only because of an Act of the Parliament of India, the Court held that the Portuguese law which may have had foreign origin became a part of the Indian laws, and, in sum and substance, is an Indian law. Having considered this fact, the Court said,

“Once we have come to the conclusion that the Civil Code is an Indian law and the domiciles of Goa, for all intent and purposes, are Indian citizens, would it be prudent to hold that the Civil Code, in matters of succession, would apply only in respect to properties situated within the territories of Goa?  We do not think so.”

The Court said that succession is governed normally by the personal laws and where there is a uniform civil code, as in Goa, by the Civil Code. Once Article 24 is not to be taken into consideration then it is but obvious that all the properties whether within Goa or outside Goa, must be governed by the Civil Code of Goa.

“If we were to hold otherwise, the consequences could be disastrous, to say the least. There would be no certainty of succession. It would be virtually impossible to determine the legitime which is an inherent part of the law of succession. The rights of the spouses to have 50% of the property could easily be defeated by buying properties outside the State of Goa.”

It was hence, held that the Portuguese Civil Code being a special Act, applicable only to the domiciles of Goa, will be applicable to the Goan domiciles in respect to all the properties wherever they be situated in India whether within Goa or outside Goa and Section 5 of the Succession Act or the laws of succession would not be applicable to such Goan domiciles.

[Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, 2019 SCC OnLine SC 1190, decided on 13.09.2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The Bench of Vivek Rusia, J. upheld the order of dismissal for want of locus standi passed by Wakf Tribunal, Bhopal, in a civil revision application. 

The deceased applicant, Iqbal Ahmad in legal capacity of legal heir applied to the Wakf for declaration of his title as Mujahir and Mutawali of Dargah he further pleaded the Tribunal to declare the auction by Tehsildar, of the appended land of Dargah illegal, which is in favor of the defendant and to restrain him from interfering with his peaceful possession. Applicant’s deceased father, Mushtaq Ahmed registered the said land in the year 1974 with the Tribunal and requested for upholding his title as Mutawali. The Court has granted an injunction in favor of the applicant’s father, despite the stay order the Tehsildar has auctioned the land in favour of the defendant. After the death of his father, he applied the Wakf for declaration of his title after submitting the adequate fees. 

The defendant raised an objection based on the ‘Locus Standi’ of the applicant, the said applicant is claiming title based on the Will of the deceased, further, they contended that the suit of the deceased is pending hence, the applicant cannot claim his title on the basis of the uncertain title of the deceased. 

The Tribunal held, “The plaintiff had no locus to challenge the auction as, during pendency of the Civil Revision, his right has not been established over the land.” The Tribunal dismissed the claim of the application and rejected his plaint. Being aggrieved by the order of Tribunal the deceased filed the Revision Petition which was carried forward by his son Irfan Ahmed as right to sue survives. He contended that he is the successor Mujahir and Mutawali, he has helped his ancestors in the working of Dargah and performed his duties as Mutawali.  

The Court observed, right to become a Mujahir and Mutawali claimed by Mustaq Ahmed on the basis of Will is yet to be established by the Court. However, Iqbal Ahmed was brought on record in place of Mustaq Ahmed by virtue of the Will in his favour hence, his right to become a Mujahir and Mutawali is also liable to be established. Irfan Ahmed is also required to establish his right to become Mujahir and Mutawali in place of Mustaq Ahmed and Iqbal Ahmed. 

It is important to mention here that in the Civil Revision filed by the Mustaq Ahmed, name of the applicant has been brought on record as legal representative and the Supreme Court has issued a direction for deciding the said revision treating to be filed by the present applicant

The Court further held, “Unless the right of Mustaq Ahmed is established, Iqbal Ahmed and Irfan Ahmed cannot claim by way of succession or the Will, therefore, all these issues can be decided in a civil suit if Irfan Ahmed files an application for bringing his name in place of Iqbal Ahmed. If such an application is filed then same be allowed & the Tribunal is directed to decide the pending civil suit and if the application has not been filed so far, then the liberty is granted to Irfan Ahmed to file such an application. The Tribunal did not commit any error while holding that Iqbal Ahmed had no locus to file the suit during pendency of Civil Revision No.462/1999 now, after the remand Civil Suit No.141/1997. Hence, I do not find any illegality in the impugned order.”[Irfan Ahmed v. M.P. Wakf Board, Civil Revision No. 303 of 2015, Order dated 01-05-2019]

Case BriefsSupreme Court

Supreme Court: In the matter where the widow of a Government Employee aggrieved by the order of the High Court of Punjab & Haryana at Chandigarh where it was directed that 50% of the pension be paid to the mother of the Government Employee, the Court set aside the impugned order and held that the parents of a married officer are not entitled to receive the pension amount as per the the Family Pension Scheme, 1964.

The Bench of A.R. Dave and L. Nageswara Rao, JJ took note of the Scheme and said that the mother of the deceased is not included in the definition of the term “family” for the reason that as per the provisions of sub-clause (f), parents of an unmarried officer would be a part of the family.

Explaining the difference between the position of law under the Hindu Succession Act, 1956 and the Family Pension Scheme, the Court said that as far as the Succession Law is concerned, it is true that the properties of a Hindu, who dies intestate would first of all go to the persons enumerated in class I of the schedule as per the provisions of Section 8 of the said Act and therefore and hence, the properties of the deceased in the case at hand would be divided among the respondent mother and the appellant wife, provided there is no other family member alive, who would fall within class 1 heirs, but position in this case, with regard to pension, is different.

The Court said that it is pertinent to note that in this case the pension is to be given under the provisions of the Scheme and therefore, only the person who is entitled to get the pension as per the Scheme would get it. The Court, hence, directed that the full amount of pension be paid to the widow of the Government employee. [Nitu v. Sheela Rani, 2016 SCC OnLine SC 1004, decided on 28.09.2016]