Judgment dated 16-10-2015

(Before Anil R. Dave and Adarsh Kumar Goel, JJ.)

Civil Appeal No. 7217 of 2013 with SLPs (C) Nos. 3805, 21814 of 2008, 18744, 28702-703 of 2010, 28471, 35209 of 2011, 4217-18 of 2012, 1299-1300, 17577-78 of 2013, 19816 of 2014, 5619, 5680, 9390, 15557-58 and 15560 of 2015

The Judgment of the Court was delivered by

Adarsh Kumar Goel, J.—

Part I

1. The only issue which has been raised in this batch of matters is whether the Hindu Succession (Amendment) Act, 2005 (the Amendment Act) will have retrospective effect. In the impugned judgment Phulavati v. Prakash AIR 2011 Kar 78, plea of retrospectivity 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 OS No. 12 of 1992 before the Additional Civil Judge (Senior Division), Belgaum for partition and separate possession to the extent of 1/7th share in the suit properties in Schedules ‘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 18-2-1988, 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 Amendment 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 Amendment Act 39 of 2005 and was entitled to inherit the coparcenary property equal to her brothers, apart from the contentions based on individual claims in certain items of property.

7. The stand of the appellant-defendants 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 v. Leelamma N. 2007 SCC OnLine Kar 553, ILR 2009 KAR 3612 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 the following question for consideration on this aspect: (Phulavati case AIR 2011 Kar 78, AIR p. 85, para 47)

“47. … (ii) Whether the plaintiff is entitled to a share in terms of Section 6 of the Hindu Succession Act as amended by Act 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: (Phulavati case AIR 2011 Kar 78, AIR p. 88, paras 61-63)

“61. The law in this regard is too well settled in terms of the judgment of the Supreme Court in G. Sekar v. Geetha (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 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 on a 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 39 of 2005 and as declared by the Supreme Court in G. Sekar (2009) 6 SCC 99. The only exception carved out to the applicability and operation of Section 6 of the Hindu Succession Act as amended by Act 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 judgments 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 2 and 1/7th share in 40% ownership in Item 3.

11. The appellant-defendants 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. The father of the plaintiff died on 18-2-1988 and 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 the plaintiff's father on 18-2-1988, notional partition took place and shares of the heirs were crystallised 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. 9-9-2005. 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. The learned counsel for the respondents would support the view taken by the High Court.

13. We have heard the learned counsel for the parties in the present appeal as well as in connected matters for the rival viewpoints which will be noticed hereinafter.

14. The contention raised on behalf of the appellants and the 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 9-9-2005. 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. (2001) 8 SCC 24 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 crystallised even if partition by metes and bounds does not take place. It was pointed out that apparently conflicting provision in the 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. The 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 effected after 20-12-2004, 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 20-12-2004 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 the 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 20-12-2004 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 in 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 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 “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 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

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 had 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….” 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 predeceased son or a predeceased 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 predeceased daughter; and (c) the share of the predeceased child of a predeceased son or of a predeceased 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 predeceased child of the predeceased son or a predeceased 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 the 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 retrospective. (2001) 8 SCC 24 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. The 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 the express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20-12-2004 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 20-12-2004. Notional partition, by its very nature, is not covered either under the proviso or under sub-section (5) or under the Explanation.

19. Interpretation of a provision depends on the text and the context. (1987) 1 SCC 424 Normal rule is to read the words of a statute in ordinary sense. In case of ambiguity, rational meaning has to be given. (1988) 3 SCC 609 In case of apparent conflict, harmonious meaning to advance the object and intention of legislature has to be given. (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 applied. (1985) 1 SCC 591

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 masters. (1990) 2 SCC 231 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 20-12-2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20-12-2004 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 Sections 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 20-12-2004. In no case statutory notional partition even after 20-12-2004 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 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 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 24-11-2015.

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.

26. Main decisions cited by the respondents are: Prema v. Nanje Gowda (2011) 6 SCC 462, Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788, V.K. Surendra v. V.K. Thimmaiah (2013) 10 SCC 211, Ram Sarup v. Munshi AIR 1963 SC 553, (1963) 3 SCR 858, Dayawati v. Inderjit AIR 1966 SC 1423, (1966) 3 SCR 275, Amarjit Kaur v. Pritam Singh (1974) 2 SCC 363, Lakshmi Narayan Guin v. Niranjan Modak (1985) 1 SCC 270, S. Sai Reddy v. S. Narayana Reddy (1991) 3 SCC 647 and State of Maharashtra v. Narayan Rao (1985) 2 SCC 321. 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:

26.1. In Ram Sarup case AIR 1963 SC 553, (1963) 3 SCR 858, the question for consideration was of amendment to the Punjab Pre-emption Act, 1913 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.

26.2. In Dayawati case AIR 1966 SC 1423, (1966) 3 SCR 275, Section 6 of the Punjab Relief of Indebtedness Act, 1934 expressly gave 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.

26.3. In Lakshmi Narayan Guin case (1985) 1 SCC 270, 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.

26.4. In Amarjit Kaur case (1974) 2 SCC 363, 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.

26.5. There is also no conflict with the principle laid down in V.K. Surendra case (2013) 10 SCC 211 which deals with a presumption about the nature of a joint family property and burden of proof being on the person claiming such property to be separate. The said decision only lays down a rule of evidence.

26.6. In S. Sai Reddy case (1991) 3 SCC 647, 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 crystallised by operation of law to which the amending law had no application. Same is the position in Prema (2011) 6 SCC 462 and Ganduri (2011) 9 SCC 788 cases.

26.7. In Narayan Rao case (1985) 2 SCC 321, 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.

26.8. We also do not find any relevance of the decisions in State of Rajasthan v. Mangilal Pindwal (1996) 5 SCC 60 and West U.P. Sugar Mills Assn. v. State of U.P. (2002) 2 SCC 645 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 retrospectivity with which the Court is concerned in the present case.

27. We now come to the decisions relied upon by the appellants:

27.1. In M. Prithviraj case 2007 SCC OnLine Kar 553, ILR 2009 KAR 3612, 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 order but does not appear to have been referred to in the impugned judgment. The judgments of this Court in Sheela Devi v. Lal Chand (2006) 8 SCC 581 and G. Sekar v. Geetha (2009) 6 SCC 99 (SCC para 30) and the judgment of the Madras High Court in Bagirathi v. S. Manivanan 2008 SCC OnLine Mad 570, AIR 2008 Mad 250 have been relied upon therein. In Sheela Devi case (2006) 8 SCC 581, this Court observed:

“21. The Act indisputably would prevail over the old Hindu law. We may notice that Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted the 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 the 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 respondent-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 record to show that he was born prior to coming into force of the Hindu Succession Act, 1956.”

The Full Bench judgment of the Bombay High Court in Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari 2014 SCC OnLine Bom 908, AIR 2014 Bom 151 also appears to be consistent with the view taken hereinabove.

27.2. In Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum (1978) 3 SCC 383, Shyama Devi v. Manju Shukla (1994) 6 SCC 342 and Anar Devi v. Parmeshwari Devi (2006) 8 SCC 656 cases this Court interpreted Explanation 1 to Section 6 (prior to the 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 (1994) 6 SCC 342 and Anar Devi (2006) 8 SCC 656 cases, same view was followed.

27.3. In Vaishali Satish Ganorkar v. Satish Keshaorao Ganorkar 2012 SCC OnLine Bom 116, AIR 2012 Bom 101, the Bombay High Court held that the amendment will not apply unless the daughter is born after the 2005 Amendment, but on this aspect a different view has been taken in the later larger Bench judgment 2014 SCC OnLine Bom 908, AIR 2014 Bom 151. 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.

27.4. Kale v. Director of Consolidation (1976) 3 SCC 119 and Digambar Adhar Patil v. Devram Girdhar Patil 1995 Supp (2) SCC 428 at p. 430 have been cited to submit that the family settlement was not required to be registered. Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 lays down that the appellate court must deal with reasons of the trial court while reversing its findings.

27.5. Kannaiyan v. CCE 1968 SCC OnLine Mad 154, (1969) 2 MLJ 277, CIT v. Keshavlal Lallubhai Patel AIR 1965 SC 866, (1965) 2 SCR 100, Umayal Achi v. Lakshmi Achi 1944 SCC OnLine FC 1, AIR 1945 FC 25 at 31(d) and Shivappa Laxman Shirgannavar v. Yellawa Kom Shivappa Shirgannavar 1952 SCC OnLine Bom 123, AIR 1954 Bom 47 have been cited to canvass that partition was recognition of pre-existing rights and did not create new rights.

27.6. 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

28. 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 of Muslim women. Discussions on gender discrimination led to this issue also. It was pointed out that in spite 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, resulting in denial of dignity and security to her. Although the issue was raised before this Court in Ahmedabad Women Action Group (AWAG) v. Union of India (1997) 3 SCC 573, 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 legislature. (1995) 3 SCC 635 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.

29. 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 the 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 v. Union of India (2001) 7 SCC 740. The Constitution Bench did not address the said issue but the Court held that Article 21 included the right to live with dignity which supports the plea that a Muslim woman could invoke fundamental rights in such matters. In Javed v. State of Haryana (2003) 8 SCC 369, 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”. 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 Muslims. In John Vallamattom v. Union of India (2003) 6 SCC 611, it was observed that Section 118 of the 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 14. Laws dealing with marriage and succession are not part of religion. Law has to change with time. International covenants and treaties could be referred to examine validity and reasonableness of a provision.

30. In Charu Khurana v. Union of India (2015) 1 SCC 192, 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.

31. 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 the earlier decisions of this Court. The issue has also been highlighted in recent articles appearing in the press on this subject.

32. 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.

33. Notice be issued to the learned Attorney General and the National Legal Services Authority, New Delhi returnable on 23-11-2015. We give liberty to the learned counsel already appearing in this matter to assist the Court on this aspect of the matter, if they wish to volunteer, for either viewpoint.

Judgment dated 30-11-2015

(Before Anil R. Dave and Adarsh Kumar Goel, JJ.)

Civil Appeal No. 13935 of 2015 [arising out of SLP (C) No. 35209 of 2011]

The Judgment of the Court was delivered by

Anil R. Dave, J.— Leave granted. In view of the judgment of this Court dated 16-10-2015 passed in Prakash v. Phulavati, the impugned order 2011 SCC OnLine MP 898 is set aside and the appeal is remanded to the High Court for a fresh decision on merits in accordance with law. Parties shall appear before the High Court for further proceedings on 14-12-2015.

35. The appeal is allowed accordingly. There shall be no order as to costs. Pending applications stand disposed of.