CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7217 OF 2013
PRAKASH & ORS. …APPELLANTS
VERSUS
PHULAVATI & ORS. ...RESPONDENTS
WITH SLP (C) NOS.21814 OF 2008, 18744 OF 2010, 28702-28703 OF 2010, 28471 OF2011, 4217-4218 OF 2012, 1299-1300 OF 2013, 17577-17578 OF 2013, 19816 OF2014, 5619 OF 2015, 3805 OF 2008, 9390 OF 2015, 5680 OF 2015, 35209 OF 2011AND 15557-15558 OF 2015 AND SLP. (C) ….15560 OF 2015
J U D G M E N T
ADARSH KUMAR GOEL, J.
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 AdditionalCivil Judge (Senior Division), Belgaum for partition and separatepossession 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’ inwhich the share sought was 1/28th.
4. According to the case of the plaintiff, the suit properties wereacquired by her late father Yeshwanth Chandrakant Upadhye by inheritancefrom his adoptive mother Smt. Sunanda Bai. After the death of her fatheron 18th February, 1988, she acquired the share in the property as claimed.
5. The suit was contested mainly with the plea that the plaintiff couldclaim share only in the self-acquired property of her deceased father andnot in the entire property. During pendency of the suit, the plaintiffamended 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 incertain properties on the basis of notional partition on the death of herfather 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 inthe judgment of the trial court.
6. The respondent-plaintiff preferred first appeal before the High Courtwith the grievance that the plaintiff became coparcener under the AmendmentAct 39 of 2005 and was entitled to inherit the coparcenary property equalto 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 couldnot claim any share in self acquired property of the members of the jointfamily and that the claim of the plaintiff had to be dealt with only underSection 6 of the Hindu Succession Act, 1956 as it stood prior to theamendment by Act 39 of 2005. The defendants relied upon a division benchjudgment of the High Court in M. Prithviraj vs. Neelamma N.[1] laying downthat if father of a plaintiff had died prior to commencement of Act 39 of2005, the amended provision could not apply. It was only the lawapplicable on the date of opening of succession which was to apply.
8. The High Court framed following question for consideration on thisaspect :“(ii) Whether the plaintiff is entitled to a share in terms of Section 6 ofthe Hindu Succession Act as amended by Act No.39 of 2005?”
9. It was held that the amendment was applicable to pending proceedingseven if it is taken to be prospective. The High Court held that : “61. The law in this regard is too well settled in terms of the judgmentof the Supreme Court in the case of G. Sekar Vs. Geetha and others reportedin (2009) 6 SCC 99. Any development of law inevitably applies to a pendingproceeding and in fact it is not even to be taken as a retrospectiveapplicability of the law but only the law as it stands on the day beingmade applicable.
62. The suit, no doubt, might have been instituted in the year 1992and even assuming that it was four years after the demise of YeshwanthChandrakant Upadhye, the position so far as the parties are concerned whoare all members of the joint family, in terms of Section 6 as amended byAct No.39 of 2005 is that a female member is, by a fiction of law createdin terms of the amended provision also becomes a coparcener and has a rightin joint family property by birth. They are also sharer members of thecoparcenary property at par with all male members. When a partition takesplace, coparceners succeed to the property in equal measure. Such is thelegal position in terms of Section 6 of the Hindu Succession Act as amendedby Act No.39 of 2005 and as declared by the Supreme Court in the case ofG.S. Sekar (supra). The only exception carved out to the applicability andoperation of Section 6 of the Hindu Succession Act as amended by Act No.39of 2005 being a situation or a factual position where there was a partitionwhich had been effected by a registered partition deed or by a decree ofthe 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, theexception available under sub-section (5) to Section 6 cannot be called inaid by the defendants and therefore, the liability in terms of the amendedprovisions operates. It is not necessary for us to multiply the judgmentby going into details or discussing other judgments referred to and reliedupon by the learned counsel for the parties at the Bar as one judgment ofthe Supreme Court if clinches the issue on the point, it is good enough forus, as a binding authority to apply that law and dispose of the case asdeclared in that judgment.”
10. The respondent-plaintiff was accordingly held entitled to 1/7th sharein all items in Schedules ‘A’ to ‘D’. In respect of Schedule ‘F’, firstitem was given up by the plaintiff. Out of the other two items, she washeld entitled to 1/7th share in Item No.2 and 1/7th share in 40% ownershipin Item No.3.
11. The defendants-appellants have questioned the judgment and order ofthe High Court with the contention that the amended provision of Section 6has no application in the present case. Father of the plaintiff died on18th February, 1988and was thus, not a coparcener on the date ofcommencement of the Amendment Act. The plaintiff could not claim to be“the daughter of a coparcener” at the time of commencement of the Act whichwas the necessary condition for claiming the benefit. On the death ofplaintiff’s father on 18th February, 1988, notional partition took placeand shares of the heirs were crystallized which created vested right in theparties. Such vested right could not have been taken away by a subsequentamendment in absence of express provision or necessary intendment to thateffect. Moreover,the amending provision itself was expressly applicable “on and from” thecommencement of the Amendment Act, i.e., 9th September, 2005. The HighCourt held that even if the provision was prospective, it could certainlyapply to pending proceedings as has been held in some decisions of thisCourt. It is pointed out that the amendment could apply to pendingproceedings, only if the amendment was applicable at all.
12. Learned counsel for the respondents would support the view taken bythe High Court.
13. We have heard learned counsel for the parties in the present appealas well as in connected matters for the rival view points which will benoticed hereinafter.
14. The contention raised on behalf of the appellants and other learnedcounsel supporting the said view is that the 2005 Amendment was notapplicable to the claim of a daughter when her father who was a coparcenerin the joint hindu family died prior to 9th September, 2005. Thissubmission is based on the plain language of the statute and theestablished principle that in absence of express provision or impliedintention to the contrary, an amendment dealing with a substantive right isprospective and does not affect the vested rights[2]. If such a coparcenerhad died prior to the commencement of the Amendment Act, succession opensout on the date of the death as per the prevailing provision of thesuccession law and the rights of the heirs get crystalised even ifpartition by metes and bounds does not take place. It was pointed out thatapparently conflicting provision in Explanation to Section 6(5) and thesaid Section was required to be given harmonious construction with the mainprovision. The explanation could not be read in conflict with the mainprovision. Main provision of Section 6(1) confers right of coparcener on adaughter only from commencement of the Act and not for any period prior tothat. The proviso to Section 6(1) also applies only where the mainprovision of Section 6(5) applies. Since Section 6(5) applies to partitioneffected after 20th December, 2004, the said proviso and the Explanationalso applies only when Section 6(1) applies. It is also submitted that theExplanation was merely a rule of evidence and not a substantive provisiondetermining the rights of the parties. Date of a daughter becoming
coparcener is on and from the commencement of the Act. Partitions effectedbefore 20th December, 2004 remain unaffected as expressly provided. TheExplanation defines partition, as partition made by a registered deed oreffected by decree of a court. Its effect is not to wipe out a legal andvalid partition prior to the said date, but to place burden of proof ofgenuineness 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 theamendment being piece of social legislation to remove discriminationagainst women in the light of 174th Report of the Law Commission, theamendment should be read as being retrospective as interpreted by the HighCourt in the impugned judgment. A daughter acquired right by birth and evenif her father, who was a coparcener, had died prior to coming into force ofthe amendment, the shares of the parties were required to be redefined. Itwas submitted that any partition which may have taken place even prior to20th December, 2004 was liable to be ignored unless it was by a registereddeed of partition or by a decree of the Court. If no registered partitionhad taken place, share of the daughter will stand enhanced by virtue of theamendment.
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 stoodprior to the 2005 Amendment and as amended :
|
Section 6 of the Hindu |Section 6 on and from the |
|Succession Act |commencement of the Hindu |
| |Succession (Amendment) Act, 2005|
|6. Devolution of interest |6. Devolution of interest in |
|of coparcenary property. |coparcenary property.-(1) On and|
|When a male Hindu dies |from the commencement of the |
|after the commencement of |Hindu Succession (Amendment) |
|this Act, having at the |Act, 2005, in a Joint Hindu |
|time of his death an |family governed by the |
|interest in a Mitakshara |Mitakshara law, the daughter of |
|coparcenary property, his |a coparcener shall,- |
|interest in the property |(a) by birth become a coparcener|
|shall devolve by |in her own right in the same |
|survivorship upon the |manner as the son; |
|surviving members of the |(b) have the same rights in the |
|coparcenary and not in |coparcenary property as she |
|accordance with this Act: |would have had if she had been a|
|PROVIDED that, if the |son; |
|deceased had left him |(c) be subject to the same |
|surviving a female relative |liabilities in respect of the |
|specified in class I of the |said coparcenary property as |
|Schedule or a male relative |that of a son, |
|specified in that class who |and any reference to a Hindu |
|claims through such female |Mitakshara coparcener shall be |
|relative, the interest of |deemed to include a reference to|
|the deceased in the |a daughter of a coparcener: |
|Mitakshara coparcenary |Provided that nothing contained |
|property shall devolve by |in this sub-section shall affect|
|testamentary or intestate |or invalidate any disposition or|
|succession, as the case may |alienation including any |
|be, under this Act and not |partition or testamentary |
|by survivorship. |disposition of property which |
|Explanation I: For the |had taken place before the 20th |
|purposes of this section, |day of December, 2004. |
|the interest of a Hindu |(2) Any property to which a |
|Mitakshara coparcener shall |female Hindu becomes entitled by|
|be deemed to be the share |virtue of sub-section -(1) shall|
|in the property that would |be held by her with the |
|have been allotted to him |incidents of coparcenary |
|if a partition of the |ownership and shall be regarded,|
|property had taken place |notwithstanding anything |
|immediately before his |contained in this Act, or any |
|death, irrespective of |other law for the time being in |
|whether he was entitled to |force, as property capable of |
|claim partition or not. |being disposed of by her by |
|Explanation 2: Nothing |testamentary disposition. |
|contained in the proviso to |(3) Where a Hindu dies after the|
|this section shall be |commencement of the Hindu |
|construed as enabling a |Succession (Amendment) Act, |
|person who has separated |2005, his interest in the |
|himself from the |property of a Joint Hindu family|
|coparcenary before the |governed by the Mitakshara law, |
|death of the deceased or |shall devolve by testamentary or|
|any of his heirs to claim |intestate succession, as the |
|on intestacy a share in the |case may be, under this Act and |
|interest referred to |not by survivorship, and the |
|therein. 7. Devolution of |coparcenary property shall be |
|interest in the property o |deemed to have been divided as |
|a tarwad, |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 rightconferred on a ‘daughter of a coparcener’ is ‘on and from the commencementof Hindu Succession (Amendment) Act, 2005’. Section 6(3) talks of deathafter the amendment for its applicability. In view of plain language ofthe statute, there is no scope for a different interpretation than the onesuggested by the text of the amendment. An amendment of a substantiveprovision is always prospective unless either expressly or by necessaryintendment it is retrospective[3]. In the present case, there is neitherany express provision for giving retrospective effect to the amendedprovision nor necessary intendment to that effect. Requirement ofpartition being registered can have no application to statutory notionalpartition on opening of succession as per unamended provision, havingregard to nature of such partition which is by operation of law. Theintent and effect of the Amendment will be considered a little later. Onthis finding, the view of the High Court cannot be sustained.
18. Contention of the respondents that the Amendment should be read asretrospective being a piece of social legislation cannot be accepted. Evena social legislation cannot be given retrospective effect unless soprovided for or so intended by the legislature. In the present case, thelegislature has expressly made the Amendment applicable on and from itscommencement and only if death of the coparcener in question is after theAmendment. Thus, no other interpretation is possible in view of expresslanguage of the statute. The proviso keeping dispositions or alienationsor partitions prior to 20th December, 2004 unaffected can also not lead tothe inference that the daughter could be a coparcener prior to thecommencement of the Act. The proviso only means that the transactions notcovered thereby will not affect the extent of coparcenary property whichmay be available when the main provision is applicable. Similarly,Explanation has to be read harmoniously with the substantive provision ofSection 6(5) by being limited to a transaction of partition effected after20th December, 2004. Notional partition, by its very nature, is notcovered either under proviso or under sub-section 5 or under theExplanation.
19. Interpretation of a provision depends on the text and the context[4]. Normal rule is to read the words of a statute in ordinary sense. In caseof ambiguity, rational meaning has to be given[5]. In case of apparentconflict, harmonious meaning to advance the object and intention oflegislature has to be given[6].
20. There have been number of occasions when a proviso or an explanationcame up for interpretation. Depending on the text, context and thepurpose, different rules of interpretation have been applied[7].
21. Normal rule is that a proviso excepts something out of the enactmentwhich would otherwise be within the purview of the enactment but if thetext, 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 thelanguage or purpose so require, the explanation can be so interpreted.Rules of interpretation of statutes are useful servants but difficultmasters[8]. 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 transactionsreferred to therein which may have taken place prior to 20th December, 2004on which date the Bill was introduced. Explanation cannot permit reopeningof partitions which were valid when effected. Object of giving finality totransactions prior to 20th December, 2004 is not to make the main provisionretrospective in any manner. The object is that by fake transactionsavailable property at the introduction of the Bill is not taken away andremains available as and when right conferred by the statute becomesavailable and is to be enforced. Main provision of the Amendment inSection 6(1) and (3) is not in any manner intended to be affected butstrengthened in this way. Settled principles governing such transactionsrelied upon by the appellants are not intended to be done away with forperiod prior to 20th December, 2004. In no case statutory notionalpartition even after 20th December, 2004 could be covered by theExplanation or the proviso in question.
23. Accordingly, we hold that the rights under the amendment areapplicable to living daughters of living coparceners as on 9th September,2005 irrespective of when such daughters are born. Disposition oralienation including partitions which may have taken place before 20thDecember, 2004 as per law applicable prior to the said date will remainunaffected. Any transaction of partition effected thereafter will begoverned 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 theHigh Court for a fresh decision in accordance with law. All other mattersmay be listed for hearing separately for consideration on 24th November,2015.
25. The view which we have taken above is consistent with and not inconflict with any of the earlier decisions. We may now refer to thedecisions cited by the parties. Main decisions cited by the respondentsare: Prema vs. Nanje Gowda[9], Ganduri Koteshwaramma vs. ChakiriYanadi[10], V.K. Surendra vs. V.K. Thimmaiah[11], Ram Sarup vs. Munshi[12],Dayawati vs. Inderjit[13], Amarjit Kaur vs. Pritam Singh[14], LakshmiNarayan Guin vs. Niranjan Modak[15], S. Sai Reddy vs. S. Narayana Reddy[16]and State of Maharashtra vs. Narayan Rao[17]. Many of these decisions dealwith situations where change in law is held to be applicable to pendingproceedings 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 aparticular amending law. The decisions relied upon do not apply to thepresent case to support the stand of the respondents.
25.1. In Ram Sarup case (supra), the question for consideration was ofamendment to the Punjab Pre-emption Act, 1930 by Punjab Act 10 of 1960restricting the pre-emption right. Section 31 inserted by way ofamendment prohibited passing of a decree which was inconsistent with theamended provisions. It was held that the amendment was retrospective andhad retrospective operation in view of language employed in the saidprovision.
25.2. In Dayawati case (supra), Section 6 of the Punjab Relief ofIndebtedness Act, 1956 expressly gave retrospective effect and made thestatute applicable to all pending suits on the commencement of the Act.The Act sought to reduce the rate of interest in certain transactions togive relief against indebtedness to certain specified persons.
25.3. In Lakshmi Narayan Guin case (supra), the question was ofapplicability of Section 13 of the West Bengal Premises Tenancy Act, 1956which expressly provided that no order could be passed by the Courtcontrary to the scheme of the new law.
25.4. In Amarjit Kaur case (supra), Section 3 of the PunjabPre-emption (Repeal) Act, 1973 was considered which expressly prohibitedthe Court from passing any pre-emption decree after the commencement of theAct.
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 ajoint family property and burden of proof being on the person claiming suchproperty to be separate. The said decision only lays down a rule ofevidence.
25.6. In S. Sai Reddy case (supra), the question for consideration waswhether even after a preliminary decree is passed determining the shares inpartition, such shares could be varied on account of intervening events atthe time of passing of the final decree. In the said case, partition suitwas filed by a son against his father in which a preliminary decree waspassed determining share of the parties. Before final decree could bepassed, 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 shareswhich plea was upheld. The said judgment does not deal with the issueinvolved in the present matter. It was not a case where the coparcenerwhose daughter claimed right was not alive on the date of the commencementof the Act nor a case where shares of the parties stood already crystalisedby operation of law to which the amending law had no application. Same isthe position in Prema and Ganduri cases (supra).
25.7. In Narayan Rao case (supra), it was observed that even after notionalpartition, the joint family continues. The proposition laid down in thisjudgment is also not helpful in deciding the question involved herein. Thetext of the Amendment itself shows that the right conferred by theAmendment is on a ‘daughter of a coparcener’ who is member of a coparcenaryand alive on commencement of the Act.
25.8. We also do not find any relevance of decisions in State of Rajasthanvs. Mangilal Pindwal[18] and West U.P. Sugar Mills Asson. vs. State ofU.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 notthe issue of restrospectivity with which the Court is concerned in thepresent 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 whathas been said above. It appears that this was a binding precedent beforethe Bench of the High Court which passed the impugned order but does notappear to have been referred to in the impugned judgment. Judgments ofthis Court in Sheela Devi vs. Lal Chand[20] and G. Sekar vs. Geetha[21]and the judgment of Madras High Court in Bagirathi vs. S. Manivanan[22]have been relied upon therein. In Sheela Devi case (supra), this Courtobserved:
21. The Act indisputably would prevail over the old Hindu Law. We maynotice that the Parliament, with a view to confer right upon the femaleheirs, even in relation to the joint family property, enacted HinduSuccession Act, 2005. Such a provision was enacted as far back in 1987 bythe 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 tosuccession on the death of a coparcener in the event the heirs are onlymale descendants. But, the proviso appended to Sub-section (1) of Section6 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. Itwas, therefore, obligatory on the part of the respondents-plaintiffs toshow that apart from Lal Chand, Sohan Lal will also derive the benefitthereof. So far as the Second son, Sohan Lal is concerned, no evidence hasbeen brought on records to show that he was born prior to coming into forceof Hindu Succession Act, 1956.”
Full Bench judgment of Bombay High Court in Badrinarayan Shankar BhandariVs. Ompraskash Shankar Bhandari[23] also appears to be consistent with theview taken hereinabove.
26.1. In Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum[24], ShyamaDevi vs. Manju Shukla[25] and Anar Devi vs. Parmeshwari Devi[26] casesthis Court interpreted the Explanation 1 to Section 6 (prior to 2005Amendment) of the Hindu Succession Act. It was held that the deeming
provision referring to partition of the property immediately before thedeath of the coparcener was to be given due and full effect in view ofsettled principle of interpretation of a provision incorporating a deemingfiction. In Shyama Devi and Anar Devi cases, same view was followed.
26.2. In Vaishali Satish Ganorkar vs. Satish Keshaorao Ganorkar[27], theBombay High Court held that the amendment will not apply unless thedaughter is born after the 2005 Amendment, but on this aspect a differentview has been taken in the later larger Bench judgment. We are unable tofind any reason to hold that birth of the daughter after the amendment wasa necessary condition for its applicability. All that is required is thatdaughter should be alive and her father should also be alive on the date ofthe amendment.
26.3. Kale vs. Dy. Director of Consolidation[28] and Digambar Adhar Patilvs. Devram Girdhar Patil[29] have been cited to submit that the familysettlement was not required to be registered. Santosh Hazari vs.Purushottam Tiwari[30] lays down that the Appellate Court must deal withreasons of the trial court while reversing its findings.
26.4 Kannaiyan vs. The Assistant Collector of Central Excise[31], C.I.T.Gujarat vs. Keshavlal Lallubhai Patel[32], Umayal Achi vs. Lakshmi Achi[33]and Shivappa Laxman vs. Yellawa Shivappa Shivagannavar[34] have beencited to canvass that partition was recognition of pre-existing rights anddid not create new rights.
26.5 This would normally have ended our order with the operative partbeing in para 24 which disposes of Civil Appeal No.7217 of 2013 and directslisting of other matters for being dealt with separately. However, onemore aspect relating to gender discrimination against muslim women whichcame 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 directlyinvolved in this appeal, has been raised by some of the learned counsel forthe parties which concerns rights to muslim women. Discussions on genderdiscrimination led to this issue also. It was pointed out that inspite ofguarantee of the Constitution, muslim women are subjected todiscrimination. There is no safeguard against arbitrary divorce and secondmarriage by her husband during currency of the first marriage, resulting indenial of dignity and security to her. Although the issue was raisedbefore this Court in Ahmedabad Women Action Group(AWAG) vs. Union ofIndia[35], this Court did not go into the merits of the discriminationwith the observation that the issue involved state policy to be dealt withby the legislature[36]. It was observed that challenge to the Muslim Women(Protection of Rights on Divorce) Act, 1986 was pending before theConstitution Bench and there was no reason to multiply proceedings on suchan issue.
28. It is pointed out that the matter needs consideration by this Courtas the issue relates not merely to a policy matter but to fundamentalrights of women under Articles 14, 15 and 21 and international conventionsand covenants. One of the reasons for the court having not gone into thematter was pendency of an issue before the Constitution Bench which hassince been decided by this Court in Danial Latifi vs. Union of India[37].The Constitution Bench did not address the said issue but the Court heldthat Article 21 included right to live with dignity[38] which supports theplea that a muslim woman could invoke fundamental rights in such matters.In Javed vs. State of Haryana[39], a Bench of three judges observed thatpractice of polygamy is injurious to public morals and can be supersededby the State just as practice of ‘sati’ [40]. It was further observed thatconduct rules providing for monogamy irrespective of religion are valid andcould not be struck down on the ground of violation of personal law ofmuslims[41]. In John Vallamattom vs. UOI[42], it was observed that Section118 of Indian Succession Act, 1925 restricting right of christians to makeWill for charitable purpose was without any rational basis, wasdiscriminatory against christians and violated Article 14[43]. Laws dealingwith marriage and succession are not part of religion[44]. Law has tochange with time[45]. International covenants and treaties could bereferred to examine validity and reasonableness of a provision[46].
29. In Charu Khurana vs. UOI[47], this Court considered the issue ofgender discrimination in the matter of denial of membership of “CineCostume 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 intoby separately registering the matter as Public Interest Litigation (PIL).We are of the view that the suggestion needs consideration in view ofearlier decisions of this Court. The issue has also been highlighted inrecent Articles appearing in the press on this subject[48].
31. For this purpose, a PIL be separately registered and put up beforethe appropriate Bench as per orders of Hon’ble the Chief Justice of India.
32. Notice be issued to learned Attorney General and National LegalServices Authority, New Delhi returnable on 23rd November, 2015. We giveliberty to learned counsel already appearing in this matter to assist theCourt on this aspect of the matter, if they wish to volunteer, for eitherview point.
