amendment are applicable to living daughters of living
coparceners as on 9th September, 2005 irrespective of
when such daughters are born. Disposition or alienation
including partitions which may have taken place before
20th December, 2004 as per law applicable prior to the said
date will remain unaffected. Any transaction of partition
effected thereafter will be governed by the Explanation.
We are unable to find any reason to hold that birth of the
daughter after the amendment was a necessary condition
for its applicability. All that is required is that daughter
should be alive and her father should also be alive on the
date of the amendment.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7217 OF 2013
PRAKASH Vs PHULAVATI & ORS.
Citation;(2016)2 SCC36
Dated;OCTOBER 16, 2015
1. The only issue which has been raised in this batch of
matters is whether Hindu Succession (Amendment) Act,
2005 (‘the Amendment Act’) will have retrospective effect.
In the impugned judgment (reported in AIR 2011 Kar. 78
Phulavati vs. Prakash), plea of restrospectivity has been
upheld in favour of the respondents by which the
appellants are aggrieved.
2. Connected matters have been entertained in this
Court mainly on account of the said legal issue particularly
when there are said to be differing views of High Courts
which makes it necessary that the issue is decided by this
Court. It is not necessary to go into the facts of the
individual case or the correctness of the findings recorded
by the courts below on various other issues. It was made
clear during the hearing that after deciding the legal issue,
all other aspects may be decided separately in the light of
the judgment of this Court.
3. Only for the purpose of deciding the above legal
question, we refer to the brief facts in Civil Appeal No.7217
of 2013. The respondent-plaintiff, Phulavati filed suit
being O.S. No.12/1992 before Additional Civil Judge (Senior
Division), Belgaum for partition and separate possession to
the extent of 1/7th share in the suit properties in Schedule
‘A’ to ‘G’ except property bearing CTS No.3241 mentioned
in Schedule ‘A’ in which the share sought was 1/28th
.
4. According to the case of the plaintiff, the suit
properties were acquired by her late father Yeshwanth
Chandrakant Upadhye by inheritance from his adoptive
mother Smt. Sunanda Bai. After the death of her father on
18th February, 1988, she acquired the share in the property
as claimed.
5. The suit was contested mainly with the plea that the
plaintiff could claim share only in the self acquired
property of her deceased father and not in the entire
property. During pendency of the suit, the plaintiff
amended the plaint so as to claim share as per the
Amended Act 39 of 2005. The trial court partly decreed
the suit to the extent of 1/28th share in certain properties
on the basis of notional partition on the death of her father
and in some of the items of property, no share was given,
while 1/7th share was given in some other properties as
mentioned in detail in the judgment of the trial court.
6. The respondent-plaintiff preferred first appeal before
the High Court with the grievance that the plaintiff became
coparcener under the Amendment Act 39 of 2005 and was
entitled to inherit the coparcenary property equal to her
brothers, apart from contentions based on individual
claims in certain items of property.
7. The stand of the defendants-appellants was that the
plaintiff could not claim any share in self acquired property
of the members of the joint family and that the claim of
the plaintiff had to be dealt with only under Section 6 of
the Hindu Succession Act, 1956 as it stood prior to the
amendment by Act 39 of 2005. The defendants relied
upon a division bench judgment of the High Court in M.
Prithviraj vs. Neelamma N.1
laying down that if father
of a plaintiff had died prior to commencement of Act 39 of
2005, the amended provision could not apply. It was only
the law applicable on the date of opening of succession
which was to apply.
8. The High Court framed following question for
consideration on this aspect :
“(ii) Whether the plaintiff is entitled to a share
in terms of Section 6 of the Hindu Succession
Act as amended by Act No.39 of 2005?”
9. It was held that the amendment was applicable to
pending proceedings even if it is taken to be prospective.
The High Court held that :
1
ILR 2009 Kar. 3612
“61. The law in this regard is too well settled
in terms of the judgment of the Supreme Court
in the case of G. Sekar Vs. Geetha and others
reported in (2009) 6 SCC 99. Any development
of law inevitably applies to a pending
proceeding and in fact it is not even to be taken
as a retrospective applicability of the law but
only the law as it stands on the day being made
applicable.
62. The suit, no doubt, might have
been instituted in the year 1992 and even
assuming that it was four years after the demise
of Yeshwanth Chandrakant Upadhye, the
position so far as the parties are concerned who
are all members of the joint family, in terms of
Section 6 as amended by Act No.39 of 2005 is
that a female member is, by a fiction of law
created in terms of the amended provision also
becomes a coparcener and has a right in joint
family property by birth. They are also sharer
members of the coparcenary property at par
with all male members. When a partition takes
place, coparceners succeed to the property in
equal measure. Such is the legal position in
terms of Section 6 of the Hindu Succession Act
as amended by Act No.39 of 2005 and as
declared by the Supreme Court in the case of
G.S. Sekar (supra). The only exception carved
out to the applicability and operation of Section
6 of the Hindu Succession Act as amended by
Act No.39 of 2005 being a situation or a factual
position where there was a partition which had
been effected by a registered partition deed or
by a decree of the court which has attained
finality prior to 20.12.2004 in terms of
sub-section (5) to Section 6.
63. In the present case such being
not the factual position, the exception available
under sub-section (5) to Section 6 cannot be
called in aid by the defendants and therefore,
the liability in terms of the amended provisions
operates. It is not necessary for us to multiply
the judgment by going into details or discussing
other judgments referred to and relied upon by
the learned counsel for the parties at the Bar as
one judgment of the Supreme Court if clinches
the issue on the point, it is good enough for us,
as a binding authority to apply that law and
dispose of the case as declared in that
judgment.”
10. The respondent-plaintiff was accordingly held
entitled to 1/7th share in all items in Schedules ‘A’ to ‘D’.
In respect of Schedule ‘F’, first item was given up by the
plaintiff. Out of the other two items, she was held entitled
to 1/7th share in Item No.2 and 1/7th share in 40%
ownership in Item No.3.
11. The defendants-appellants have questioned the
judgment and order of the High Court with the contention
that the amended provision of Section 6 has no application
in the present case. Father of the plaintiff died on 18th
February, 1988and was thus, not a coparcener on the date
of commencement of the Amendment Act. The plaintiff
could not claim to be “the daughter of a coparcener” at
the time of commencement of the Act which
was the necessary condition for claiming the benefit. On
the death of plaintiff’s father on 18th February, 1988,
notional partition took place and shares of the heirs were
crystallized which created vested right in the parties.
Such vested right could not have been taken away by a
subsequent amendment in absence of express provision or
necessary intendment to that effect. Moreover,
the amending provision itself was expressly applicable “on
and from” the commencement of the Amendment Act, i.e.,
9
th September, 2005. The High Court held that even if the
provision was prospective, it could certainly apply to
pending proceedings as has been held in some decisions
of this Court. It is pointed out that the amendment could
apply to pending proceedings, only if the amendment was
applicable at all.
12. Learned counsel for the respondents would support
the view taken by the High Court.
13. We have heard learned counsel for the parties in
the present appeal as well as in connected matters for
the rival view points which will be noticed hereinafter.
14. The contention raised on behalf of the appellants and
other learned counsel supporting the said view is that the
2005 Amendment was not applicable to the claim of a
daughter when her father who was a coparcener in the
joint hindu family died prior to 9th September, 2005. This
submission is based on the plain language of the statute
and the established principle that in absence of express
provision or implied intention to the contrary, an
amendment dealing with a substantive right is prospective
and does not affect the vested rights
. If such a
coparcener had died prior to the commencement of the
Amendment Act, succession opens out on the date of the
death as per the prevailing provision of the succession law
and the rights of the heirs get crystalised even if partition
by metes and bounds does not take place. It was pointed
out that apparently conflicting provision in Explanation to
Section 6(5) and the said Section was required to be given
harmonious construction with the main provision. The
explanation could not be read in conflict with the main
provision. Main provision of Section 6(1) confers right of
coparcener on a daughter only from commencement of
the Act and not for any period prior to that. The proviso to
Section 6(1) also applies only where the main provision of
Section 6(5) applies. Since Section 6(5) applies to partition
2 Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27
etc.
effected after 20th December, 2004, the said proviso and
the Explanation also applies only when Section 6(1)
applies. It is also submitted that the Explanation was
merely a rule of evidence and not a substantive provision
determining the rights of the parties. Date of a daughter
becoming coparcener is on and from the commencement
of the Act. Partitions effected before 20th December, 2004
remain unaffected as expressly provided. The Explanation
defines partition, as partition made by a registered deed or
effected by decree of a court. Its effect is not to wipe out
a legal and valid partition prior to the said date, but to
place burden of proof of genuineness of such partition on
the party alleging it. In any case, statutory notional
partition remains valid and effective.
15. On the contrary, stand on behalf of the respondents
is that the amendment being piece of social legislation to
remove discrimination against women in the light of 174th
Report of the Law Commission, the amendment should be
read as being retrospective as interpreted by the High
Court in the impugned judgment. A daughter acquired
right by birth and even if her father, who was a
coparcener, had died prior to coming into force of the
amendment, the shares of the parties were required to be
redefined. It was submitted that any partition which may
have taken place even prior to 20th December, 2004 was
liable to be ignored unless it was by a registered deed of
partition or by a decree of the Court. If no registered
partition had taken place, share of the daughter will stand
enhanced by virtue of the amendment.
16. We have given due consideration to the rival
submissions. We may refer to the provision of Section 6
of the Hindu Succession Act as it stood prior to the 2005
Amendment and as amended :
Section 6 of the Hindu
Succession Act
Section 6 on and from the
commencement of the Hindu
Succession (Amendment) Act,
2005
6. Devolution of interest of
coparcenary property. When
a male Hindu dies after the
commencement of this Act,
having at the time of his death
an interest in a Mitakshara
coparcenary property, his
interest in the property shall
devolve by survivorship upon
the surviving members of the
coparcenary and not in
accordance with this Act:
PROVIDED that, if the deceased
6. Devolution of interest in
coparcenary property.-(1) On and
from the commencement of the
Hindu Succession (Amendment) Act,
2005, in a Joint Hindu family
governed by the Mitakshara law, the
daughter of a coparcener shall,-
(a) by birth become a coparcener in
her own right in the same manner as
the son;
(b) have the same rights in the
coparcenary property as she would
etc.
had left him surviving a female
relative specified in class I of
the Schedule or a male relative
specified in that class who
claims through such female
relative, the interest of the
deceased in the Mitakshara
coparcenary property shall
devolve by testamentary or
intestate succession, as the
case may be, under this Act
and not by survivorship.
Explanation I: For the purposes
of this section, the interest of a
Hindu Mitakshara coparcener
shall be deemed to be the
share in the property that
would have been allotted to
him if a partition of the
property had taken place
immediately before his death,
irrespective of whether he was
entitled to claim partition or
not. Explanation 2: Nothing
contained in the proviso to this
section shall be construed as
enabling a person who has
separated himself from the
coparcenary before the death
of the deceased or any of his
heirs to claim on intestacy a
share in the interest referred to
therein. 7. Devolution of
interest in the property of a
tarwad,
have had if she had been a son;
(c) be subject to the same liabilities
in respect of the said coparcenary
property as that of a son,
and any reference to a Hindu
Mitakshara coparcener shall be
deemed to include a reference to a
daughter of a coparcener:
Provided that nothing contained in
this sub-section shall affect or
invalidate any disposition or
alienation including any partition or
testamentary disposition of property
which had taken place before the
20th day of December, 2004.
(2) Any property to which a female
Hindu becomes entitled by virtue of
sub-section -(1) shall be held by her
with the incidents of coparcenary
ownership and shall be regarded,
notwithstanding anything contained
in this Act, or any other law for the
time being in force, as property
capable of being disposed of by her
by testamentary disposition.
(3) Where a Hindu dies after the
commencement of the Hindu
Succession (Amendment) Act, 2005,
his interest in the property of a Joint
Hindu family governed by the
Mitakshara law, shall devolve by
testamentary or intestate
succession, as the case may be,
under this Act and not by
survivorship, and the coparcenary
property shall be deemed to have
been divided as if a partition had
taken place and,-
(a) the daughter is allotted the same
share as is allotted to a son;
(b) the share of the pre-deceased
son or a pre-deceased daughter, as
they would have got had they been
alive at the time of partition, shall be
allotted to the surviving child of such
predeceased son or of such
pre-deceased daughter; and
(c) the share of the pre-deceased
child of a pre-deceased son or of a
pre-deceased daughter, as such child
would have got had he or she been
alive at the time of the partition,
shall be allotted to the child of such
pre-deceased child of the
pre-deceased son or a pre-deceased
daughter, as the case may be.
Explanation.- For the purposes of this
sub-section, the interest of a Hindu
Mitakshara coparcener shall be
deemed to be the share in the
property that would have been
allotted to him if a partition of the
property had taken place
immediately before his death,
irrespective of whether he was
entitled to claim partition or not.
(4) After the commencement of the
Hindu Succession (Amendment) Act,
2005, no court shall recognise any
right to proceed against a son,
grandson or great-grandson for the
recovery of any debt due from his
father, grandfather or
great-grandfather solely on the
ground of the pious obligation under
the Hindu law, of such son, grandson
or great-grandson to discharge any
such debt:
Provided that in the case of any debt
contracted before the
commencement of the Hindu
Succession (Amendment) Act, 2005,
nothing contained in this sub-section
shall affect-
(a) the right of any creditor to
proceed against the son, grandson or
great-grandson, as the case may be;
or
(b) any alienation made in respect of
or in satisfaction of, any such debt,
and any such right or alienation shall
be enforceable under the rule of
pious obligation in the same manner
and to the same extent as it would
have been enforceable as if the
Hindu Succession (Amendment) Act,
2005 had not been enacted.
Explanation.-For the purposes of
clause (a), the expression "son",
"grandson" or "great-grandson" shall
be deemed to refer to the son,
grandson or great-grandson, as the
case may be, who was born or
adopted prior to the commencement
of the Hindu Succession
(Amendment) Act, 2005.
(5) Nothing contained in this section
shall apply to a partition, which has
been effected before the 20th day of
December, 2004.
Explanation.- For the purposes of this
section "partition" means any
partition made by execution of a
deed of partition duly registered
under the Registration Act, 1908 (16
of 1908) or partition effected by a
decree of a court.'
17. The text of the amendment itself clearly provides that
the right conferred on a ‘daughter of a coparcener’ is ‘on
and from the commencement of Hindu Succession
(Amendment) Act, 2005’. Section 6(3) talks of death after
the amendment for its applicability. In view of plain
language of the statute, there is no scope for a different
interpretation than the one suggested by the text of the
amendment. An amendment of a substantive provision is
always prospective unless either expressly or by necessary
intendment it is retrospective3
. In the present case, there is
neither any express provision for giving retrospective effect
to the amended provision nor necessary intendment to that
effect. Requirement of partition being registered can have
no application to statutory notional partition on opening of
succession as per unamended provision, having regard to
nature of such partition which is by operation of law. The
intent and effect of the Amendment will be considered a
little later. On this finding, the view of the High Court
cannot be sustained.
18. Contention of the respondents that the Amendment
should be read as retrospective being a piece of social
legislation cannot be accepted. Even a social legislation
cannot be given retrospective effect unless so provided for
or so intended by the legislature. In the present case, the
legislature has expressly made the Amendment applicable
on and from its commencement and only if death of the
coparcener in question is after the Amendment. Thus, no
other interpretation is possible in view of express language
3 Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27
of the statute. The proviso keeping dispositions or
alienations or partitions prior to 20th December, 2004
unaffected can also not lead to the inference that the
daughter could be a coparcener prior to the
commencement of the Act. The proviso only means that
the transactions not covered thereby will not affect the
extent of coparcenary property which may be available
when the main provision is applicable. Similarly,
Explanation has to be read harmoniously with the
substantive provision of Section 6(5) by being limited to a
transaction of partition effected after 20th December,
2004. Notional partition, by its very nature, is not covered
either under proviso or under sub-section 5 or under the
Explanation.
19. Interpretation of a provision depends on the text and
the context4
. Normal rule is to read the words of a statute
in ordinary sense. In case of ambiguity, rational meaning
has to be given5
. In case of apparent conflict, harmonious
meaning to advance the object and intention of legislature
has to be given6
.
4 RBI vs. Peerless (1987) 1 SCC 424, para 33
5 Kehar Singh vs. State (1988) 3 SCC 609
6 District Mining Officer vs. Tata Iron and Steel Co. (2001) 7 SCC 358
20. There have been number of occasions when a
proviso or an explanation came up for interpretation.
Depending on the text, context and the purpose, different
rules of interpretation have been applied7
.
21. Normal rule is that a proviso excepts something out
of the enactment which would otherwise be within the
purview of the enactment but if the text, context or
purpose so require a different rule may apply. Similarly, an
explanation is to explain the meaning of words of the
section but if the language or purpose so require, the
explanation can be so interpreted. Rules of interpretation
of statutes are useful servants but difficult masters8
.
Object of interpretation is to discover the intention of
legislature.
22. In this background, we find that the proviso to
Section 6(1) and sub-section (5) of Section 6 clearly intend
to exclude the transactions referred to therein which may
have taken place prior to 20th December, 2004 on which
date the Bill was introduced. Explanation cannot permit
reopening of partitions which were valid when effected.
7
S. Sundaram Pillai vs. R. Pattabiraman (1985) 1 SCC 591
8 Keshavji Ravji & Co. vs. CIT (1990) 2 SCC 231
Object of giving finality to transactions prior to 20th
December, 2004 is not to make the main provision
retrospective in any manner. The object is that by fake
transactions available property at the introduction of the
Bill is not taken away and remains available as and when
right conferred by the statute becomes available and is to
be enforced. Main provision of the Amendment in Section
6(1) and (3) is not in any manner intended to be affected
but strengthened in this way. Settled principles governing
such transactions relied upon by the appellants are not
intended to be done away with for period prior to 20th
December, 2004. In no case statutory notional partition
even after 20th December, 2004 could be covered by the
Explanation or the proviso in question.
23. Accordingly, we hold that the rights under the
amendment are applicable to living daughters of living
coparceners as on 9th September, 2005 irrespective of
when such daughters are born. Disposition or alienation
including partitions which may have taken place before
20th December, 2004 as per law applicable prior to the said
date will remain unaffected. Any transaction of partition
effected thereafter will be governed by the Explanation.
24. On above interpretation, Civil Appeal No.7217 of
2013 is allowed. The order of the High Court is set aside.
The matter is remanded to the High Court for a fresh
decision in accordance with law. All other matters may be
listed for hearing separately for consideration on 24th
November, 2015.
25. The view which we have taken above is consistent
with and not in conflict with any of the earlier decisions.
We may now refer to the decisions cited by the parties.
Main decisions cited by the respondents are: Prema vs.
Nanje Gowda9
, Ganduri Koteshwaramma vs. Chakiri
Yanadi10
, V.K. Surendra vs. V.K. Thimmaiah11
, Ram
Sarup vs. Munshi12, Dayawati vs. Inderjit13, Amarjit
Kaur vs. Pritam Singh14, Lakshmi Narayan Guin vs.
Niranjan Modak15
, S. Sai Reddy vs. S. Narayana
9
(2011) 6 SCC 462
10 (2011) 9 SCC 788
11 (2013) 10 SCC 211, para 18
12 (1963) 3 SCR 858
13
(1966) 3 SCR 275
14 (1974) 2 SCC 363
15 (1985) 1 SCC 270
18Page 19
Reddy16 and State of Maharashtra vs. Narayan Rao17
.
Many of these decisions deal with situations where change
in law is held to be applicable to pending proceedings
having regard to intention of legislature in a particular law.
There is no dispute with the propositions laid down in the
said decisions. Question is of application of the said
principle in the light of a particular amending law. The
decisions relied upon do not apply to the present case to
support the stand of the respondents.
25.1. In Ram Sarup case (supra), the question for
consideration was of amendment to the Punjab
Pre-emption Act, 1930 by Punjab Act 10 of 1960 restricting
the pre-emption right. Section 31 inserted by way of
amendment prohibited passing of a decree which was
inconsistent with the amended provisions. It was held that
the amendment was retrospective and had retrospective
operation in view of language employed in the said
provision.
25.2. In Dayawati case (supra), Section 6 of the Punjab
Relief of Indebtedness Act, 1956 expressly gave
16 (1991) 3 SCC 647
17 (1985) 2 SCC 321, paras 8 to 10Page 20
retrospective effect and made the statute applicable to all
pending suits on the commencement of the Act. The Act
sought to reduce the rate of interest in certain
transactions to give relief against indebtedness to certain
specified persons.
25.3. In Lakshmi Narayan Guin case (supra), the
question was of applicability of Section 13 of the West
Bengal Premises Tenancy Act, 1956 which expressly
provided that no order could be passed by the Court
contrary to the scheme of the new law.
25.4. In Amarjit Kaur case (supra), Section 3 of the
Punjab
Pre-emption (Repeal) Act, 1973 was considered which
expressly prohibited the Court from passing any
pre-emption decree after the commencement of the Act.
25.5. There is also no conflict with the principle laid down
in V.K. Surendra case (supra) which deals with a
presumption about the nature of a joint family property
and burden of proof being on the person claiming suchPage 21
property to be separate. The said decision only lays down
a rule of evidence.
25.6. In S. Sai Reddy case (supra), the question for
consideration was whether even after a preliminary decree
is passed determining the shares in partition, such shares
could be varied on account of intervening events at the
time of passing of the final decree. In the said case,
partition suit was filed by a son against his father in which
a preliminary decree was passed determining share of the
parties. Before final decree could be passed, there was an
amendment in the Hindu Succession Act (vide A.P.
Amendment Act, 1986) allowing share to the unmarried
daughters. Accordingly, the unmarried daughters applied
to the court for their shares which plea was upheld. The
said judgment does not deal with the issue involved in the
present matter. It was not a case where the coparcener
whose daughter claimed right was not alive on the date of
the commencement of the Act nor a case where shares of
the parties stood already crystalised by operation of law to
which the amending law had no application. Same is the
position in Prema and Ganduri cases (supra). Page 22
25.7. In Narayan Rao case (supra), it was observed that
even after notional partition, the joint family continues.
The proposition laid down in this judgment is also not
helpful in deciding the question involved herein. The text
of the Amendment itself shows that the right conferred by
the Amendment is on a ‘daughter of a coparcener’ who is
member of a coparcenary and alive on commencement of
the Act.
25.8. We also do not find any relevance of decisions in
State of Rajasthan vs. Mangilal Pindwal18 and West
U.P. Sugar Mills Asson. vs. State of U.P.19 or other
similar decisions for deciding the issue involved herein.
The said decisions deal with the effect of repeal of a
provision and not the issue of restrospectivity with which
the Court is concerned in the present case.
26. We now come to the decisions relied upon by the
appellants. In M. Prithviraj case (supra), the view
taken appears to be consistent with what has been said
above. It appears that this was a binding precedent before
the Bench of the High Court which passed the impugned
18 (1996) 5 SCC 60
19 (2002) 2 SCC 645Page 23
order but does not appear to have been referred to in the
impugned judgment. Judgments of this Court in Sheela
Devi vs. Lal Chand20 and G. Sekar vs. Geetha21 and
the judgment of Madras High Court in Bagirathi vs. S.
Manivanan22 have been relied upon therein. In Sheela
Devi case (supra), this Court observed:
21. The Act indisputably would prevail over the
old Hindu Law. We may notice that the
Parliament, with a view to confer right upon the
female heirs, even in relation to the joint family
property, enacted Hindu Succession Act, 2005.
Such a provision was enacted as far back in
1987 by the State of Andhra Pradesh. The
succession having opened in 1989, evidently,
the provisions of Amendment Act, 2005 would
have no application. Sub-section (1) of Section
6 of the Act governs the law relating to
succession on the death of a coparcener in the
event the heirs are only male descendants. But,
the proviso appended to Sub-section (1)
of Section 6 of the Act creates an exception.
First son of Babu Lal, viz., Lal Chand, was, thus,
a coparcener. Section 6 is exception to the
general rules. It was, therefore, obligatory on
the part of the respondents-plaintiffs to show
that apart from Lal Chand, Sohan Lal will also
derive the benefit thereof. So far as the Second
son, Sohan Lal is concerned, no evidence has
been brought on records to show that he was
born prior to coming into force of Hindu
Succession Act, 1956.”
20 (2006) 8 SCC 581
21 (2009) 6 SCC 99, para 30
22 AIR 2005 Mad 250 (DB)Page 24
Full Bench judgment of Bombay High Court in
Badrinarayan Shankar Bhandari Vs. Ompraskash
Shankar Bhandari23
also appears to be consistent with
the view taken hereinabove.
26.1. In Gurupad Khandappa Magdum vs. Hirabai
Khandappa Magdum24
, Shyama Devi vs. Manju
Shukla25 and Anar Devi vs. Parmeshwari Devi26
cases this Court interpreted the Explanation 1 to Section 6
(prior to 2005 Amendment) of the Hindu Succession Act. It
was held that the deeming provision referring to partition
of the property immediately before the death of the
coparcener was to be given due and full effect in view of
settled principle of interpretation of a provision
incorporating a deeming fiction. In Shyama Devi and
Anar Devi cases, same view was followed.
26.2. In Vaishali Satish Ganorkar vs. Satish
Keshaorao Ganorkar27
, the Bombay High Court held that
the amendment will not apply unless the daughter is born
23 AIR 2014, BOM 151. paras 40-57
24 (1978) 3 SCC 383, paras 6,11 and 13
25 (1994) 6 SCC 342, para 7
26 (2006) 8 SCC 656, paras 10,11
27 AIR 2012, BOM 101, paras 13 to 37Page 25
after the 2005 Amendment, but on this aspect a different
view has been taken in the later larger Bench judgment.
We are unable to find any reason to hold that birth of the
daughter after the amendment was a necessary condition
for its applicability. All that is required is that daughter
should be alive and her father should also be alive on the
date of the amendment.
26.3. Kale vs. Dy. Director of Consolidation28 and
Digambar Adhar Patil vs. Devram Girdhar Patil29
have been cited to submit that the family settlement was
not required to be registered. Santosh Hazari vs.
Purushottam Tiwari30 lays down that the Appellate Court
must deal with reasons of the trial court while reversing its
findings.
26.4 Kannaiyan vs. The Assistant Collector of
Central Excise31, C.I.T. Gujarat vs. Keshavlal
Lallubhai Patel32, Umayal Achi vs. Lakshmi Achi33 and
Shivappa Laxman vs. Yellawa Shivappa
28 (1976) 3 SCC 119, para 9
29 (1995) Supp. 2 SCC 428 at page 430
30 (2001) 3 SCC 179, para 15.
31 1969 (2) MLJ 277,
32 (1965) 2 SCR 100
33 AIR 1945 FC 25 at 31(d)Page 26
Shivagannavar34 have been cited to canvass that
partition was recognition of pre-existing rights and did not
create new rights.
26.5 This would normally have ended our order with the
operative part being in para 24 which disposes of Civil
Appeal No.7217 of 2013 and directs listing of other
matters for being dealt with separately. However, one
more aspect relating to gender discrimination against
muslim women which came up for consideration needs to
be gone into as Part II of this order.
Part II
27. An important issue of gender discrimination which
though not directly involved in this appeal, has been
raised by some of the learned counsel for the parties
which concerns rights to muslim women. Discussions on
gender discrimination led to this issue also. It was pointed
out that inspite of guarantee of the Constitution, muslim
women are subjected to discrimination. There is no
safeguard against arbitrary divorce and second marriage
by her husband during currency of the first marriage,
34 AIR 1954 BOM 47, para 4Page 27
resulting in denial of dignity and security to her. Although
the issue was raised before this Court in Ahmedabad
Women Action Group(AWAG) vs. Union of India35
,
this Court did not go into the merits of the discrimination
with the observation that the issue involved state policy
to be dealt with by the legislature36. It was observed that
challenge to the Muslim Women (Protection of Rights on
Divorce) Act, 1986 was pending before the Constitution
Bench and there was no reason to multiply proceedings on
such an issue.
28. It is pointed out that the matter needs consideration
by this Court as the issue relates not merely to a policy
matter but to fundamental rights of women under Articles
14, 15 and 21 and international conventions and
covenants. One of the reasons for the court having not
gone into the matter was pendency of an issue before the
Constitution Bench which has since been decided by this
Court in Danial Latifi vs. Union of India37
. The
35 (1997) 3 SCC 573
36 This Court referred to the observations of Sahai, J. in Sarla Mudgal vs. Union of India (1995) 3
SCC 635 that a climate was required to be built for a uniform civil code. Reference was also made to
observations in Madhu Kishwar vs. State of Bihar (1996 (5) SCC 125 to the effect that the court could
at best advise and focus attention to the problem instead of playing an activist role.
37 (2001) 7 SCC 740Page 28
Constitution Bench did not address the said issue but the
Court held that Article 21 included right to live with
dignity38 which supports the plea that a muslim woman
could invoke fundamental rights in such matters. In Javed
vs. State of Haryana39
, a Bench of three judges
observed that practice of polygamy is injurious to public
morals and can be superseded by the State just as
practice of ‘sati’ 40. It was further observed that conduct
rules providing for monogamy irrespective of religion are
valid and could not be struck down on the ground of
violation of personal law of muslims41. In John
38 “ Para 33……. This Court in Olga Tellis v. Bombay Municipal Corpn. [1985(3) SCC 545] and
Maneka Gandhi v. Union of India [1978 (1) SCC 248] held that the concept of “right to life and
personal liberty” guaranteed under Article 21 of the Constitution would include the “right to live with
dignity”. Before the Act, a Muslim woman who was divorced by her husband was granted a right to
maintenance from her husband under the provisions of Section 125 CrPC until she may remarry and
such a right, if deprived, would not be reasonable, just and fair. Thus the provisions of the Act
depriving the divorced Muslim women of such a right to maintenance from her husband and providing
for her maintenance to be paid by the former husband only for the period of iddat and thereafter to
make her run from pillar to post in search of her relatives one after the other and ultimately to knock at
the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of
Section 125 CrPC. Such deprivation of the divorced Muslim women of their right to maintenance from
their former husbands under the beneficial provisions of the Code of Criminal Procedure which are
otherwise available to all other women in India cannot be stated to have been effected by a reasonable,
right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter IX of
the Code of Criminal Procedure, a divorced Muslim woman has obviously been unreasonably
discriminated and got out of the protection of the provisions of the general law as indicated under the
Code which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to
any other community. The provisions prima facie, therefore, appear to be violative of Article 14 of
the Constitution mandating equality and equal protection of law to all persons otherwise
similarly circumstanced and also violative of Article 15 of the Constitution which prohibits any
discrimination on the ground of religion as the Act would obviously apply to Muslim divorced
women only and solely on the ground of their belonging to the Muslim religion.”
39 (2003) 8 SCC 369
40 Para 46
41 Paras 54 to 59Page 29
Vallamattom vs. UOI42
, it was observed that Section 118
of Indian Succession Act, 1925 restricting right of
christians to make Will for charitable purpose was without
any rational basis, was discriminatory against christians
and violated Article 1443. Laws dealing with marriage and
succession are not part of religion44. Law has to change
with time45. International covenants and treaties could be
referred to examine validity and reasonableness of a
provision46
.
29. In Charu Khurana vs. UOI47
, this Court considered
the issue of gender discrimination in the matter of denial
of membership of “Cine Costume Make-up Artists and Hair
Dressers Association” in film industry. It was held that
such discrimination violates basic constitutional rights.
30. It was thus submitted that this aspect of the matter
may be gone into by separately registering the matter as
Public Interest Litigation (PIL). We are of the view that the
suggestion needs consideration in view of earlier decisions
42 (2003) 6 SCC 611
43 Paras 28 and 29
44 Para 44
45 Paras 33 to 36
46 Paras 30 to 32
47 (2015) 1 SCC 192Page 30
of this Court. The issue has also been highlighted in recent
Articles appearing in the press on this subject48
.
31. For this purpose, a PIL be separately registered and
put up before the appropriate Bench as per orders of
Hon’ble the Chief Justice of India.
32. Notice be issued to learned Attorney General and
National Legal Services Authority, New Delhi returnable on
23rd November, 2015. We give liberty to learned counsel
already appearing in this matter to assist the Court on this
aspect of the matter, if they wish to volunteer, for either
view point.
………………………………………………..J.
[ ANIL R. DAVE ]
………………………………………………..J.
[ ADARSH KUMAR GOEL ]
NEW DELHI
OCTOBER 16, 2015
48 “The Tribune” dated 24.09.2015 “Muslim Women’s quest for equality” by Vandana Shukla and
“Sunday Express Magazine” dated 04.10.2015 “In Her Court” by Dipti Nagpaul D’Souza.Page 31
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