Women empowerment and minimising gender discrimination has not just been a legal jargon. Time and again the court has always struck the right balance in the relationships with necessary aforesaid ingredients, if the facts of the case required such justice. Recently, these facts were again reflected in recent judgments passed by the Hon’ble Supreme Court in Krishna Bhattacharjee judgment wherein it was held that if a decree of judicial separation is passed, wife cannot cease to be an ‘aggrieved person’ within the definition of Protection of Domestic Violence Act, 2005 (“Act”). In another development, Hon’ble Supreme Court in case titled Prakash discussed below has also held that the amendment in the Hindu Succession Act, 1956 (“Succession Act”) will have effect, if father and daughter are both alive on the date of the amendment for daughter to become co-sharer along with other siblings. These judgments have impact on those women filing the matters to pursue their rights before appropriate courts in India. The article appreciates these precedents for understanding step towards women empowerment at large.
A. Judgment-I in Krishna Bhattacharjee’s Matter
In this judgment, the appellant lost his case of claiming her stridhan only on the ground that she did not fall within the bracket of aggrieved person as she was under judicial separation. The appellant had filed an application under Section 12 of the Act for seizure of the stridhan. The judgment reflects certain important interpretations-aggrieved person. Understanding them can help draw better picture of issues and ratio involved.
(i) Aggrieved Person
The Act intends to provide the effective protection to the rights guaranteed to women under the Constitution of India. The recent attention to the meaning of ‘aggrieved person’ in the judgment as provided under the Act makes it important to understand how it has been defined under the Act. As per the Act, the aggrieved person is:
“The one who has had domestic relationship with the respondent and who alleges to have any act of the domestic violence by the Respondent.”
To assist in understanding of our readers, we clarify that the ‘Domestic violence’ is an act or omission or commission as per the Section 3 of the Act to include physical abuse, mental abuse, verbal and emotional abuse, economic abuse. To assess the act of the domestic violence over all facts and circumstances are taken into consideration by the court.The definition has quiet wide a spectrum.
The element of ‘Domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by way of consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
(ii) Judicial Separation Qualifies for a Relief under the Act
It is important to understand the spirit of the legislations, to find the answer to aforesaid issue in judgment under discussion. Here came the challenge to interpret the ‘aggrieved person’ for a situation wherein the parties are husband-wife but legal relationship between them is snapped by way of judicial separation in the matter of Krishna Bhattarjee vs. Sarathi Choudhary. The Act was legislated in 2005 as has been stated to provide effective protection to women who are victim of domestic violence. However, as the Act came into force in 2005 questions began to be raised about the application of the same to disputes on-going prior to implementations of the Act. In V.D. Bhanot vs. Savita Bhanot the question arose whether the relationship disputes that is applicable prior to the coming into force of the said Act could be taken into consideration. It was held that even the wife, who has had a shared household in the past but, is no more doing so when the Act came into force, still be covered under the Act. The Act was enacted to safeguard the interest of women to protect her rights under article 14, 15, 21 of the Constitution of India and to provide her efficacious remedy. The principle underlying Savita Bhanot was retariated in Saraswati vs. Babu
To resolve the issue in spirit of the legislation, it is important to analyse the issue of judicial separation and understand the distinction between decree of divorce and decree of judicial separation and whether the same would qualify for relief under the Act. In the former, there is a severance of status and parties do not remain as husband and wife whereas in the later the relationship as husband and wife continues but the legal relationship is snapped. A three-judge bench in Jeet Singh & Ors vs. State of UP the apex court held that the judicial separation creates rights and obligations. A decree to that effect permits parties to live apart. There would be no obligation of either party to cohabit each other. Mutual rights and obligations would remain suspended. Though judicial separation after some period may become a ground of divorce. It is not necessary and that parties are not bound to have recourse to that remedy, they can continue to live as husband and wife lifetime.
(iii) Final Verdict
The court observed considering the sensitive nature of the legislation alone, even the maintainability issue requires thorough deliberations. It is the duty of the court to examine the grounds of respondent in such petitions from all angles. It is also important to analyse that the person aggrieved is not denied justice on grounds of non-adjudication in the maintainability petitions. Therefore, it was held that if a decree of judicial separation is passed, wife cannot cease to be an aggrieved person within the definition of the Act.
B. Date of Application of Amendment to the Succession Act: Judgment-II
The Succession Act originally didn’t give daughters equal rights to ancestral property. This disparity was however, removed by an amendment that came into force on September 9, 2005. However, the recent legal debate around the amendment arose when issue relating to retrospective effect of the same came in question in Prakash & Ors. vs. Phulwati & Ors (“Prakash Case”). The settled position of law is that amendment of substantive rights in the absence of express provision or implied intention to the contrary; the substantive law is prospective and does not affect the vested rights. Even a social legislation cannot have a retrospective effect unless so provided for or so intended by the legislature.
Section 6 of the Succession Act deals with devolution of interest of a male Hindu in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has lead to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women. The States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. Likewise, the Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.
(i) Understanding the concept of ‘Hindu Mitakshara Coparcener’ Now and Then
Coparcenary property is synonymous with ancestral property i.e. property inherited by a male Hindu from his father, grandfather and great grandfather. The main incidents of coparcenary property are:
(i) It devolved by survivorship not by succession,
(ii) It is a property in which the male issues of the coparcener’s up to three degrees acquire an interest by birth.
Coparcenary refers to equal inheritance that was restricted only to male members of the Hindu Undivided Family. It is a narrow body of persons within a joint family. Coparceners jointly inherit property and have unity of possession.
India has been a patriarchal society where women have been unfairly discriminated against. This was reflected in laws like the Succession Act, which did not give women a birth right even in the joint family property under Mitakshara coparcenary. The Succession Act was amended in 2005 with a view to re-affirm the equality granted to women under Article 14 of the Constitution. The amendment provided daughters equal rights in coparcenary property on birth, at par with sons. After the amendment, daughters have the same rights and liabilities as sons including a notional partition.
Any reference to a Hindu Mitakshara coparcener shall now deemed to include a reference to a daughter of a coparcener now. Provided that nothing contained in the amendment shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property, which had taken place before the December 20, 2004 (“Cut off Date”), the date on which the bill was introduced.
(ii) Equal Rights for a Daughter in a Coparcenary Property
In 2005, the amendment of Section 6 with regard to devolution of interest in coparcenary property on and from the commencement of this Amendment in a Joint Hindu family governed by the Mitakshara law, made the daughter a coparcener which ended the gender discrimination:
- She now by birth become a coparcener in her own right in the same manner as the son;
- She will have the same rights in the coparcenary property as she would have had, if she had been a son;
- She would be subjected to the same liabilities in respect of the said coparcenary property as that of a son
Any property to which a female Hindu becomes entitled by virtue of the aforementioned amendment 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 in, as property capable of being disposed of by her by testamentary disposition or will.
(iii) Retrospective or Prospective: 2005 Succession Act Amendment
The court observed that in the amendment neither it has retrospective effect not intendment to that effect in the Prakash Case. Even a social legislation cannot be read retrospectively. In the present amendment, the legislature has made it clear the amendment should be made applicable on the date of commencement and only if death of the coparcener is after the amendment. There is no possible interpretation in view of the express provision.
Where a Hindu dies after the commencement of the Amendment, 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 notional partition had taken place:
(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 pre-deceased 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.
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. Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December 2004.
(iv) Summary of the Outcome
Even a social legislation cannot be read retrospectively. In the present amendment, the legislature has made it clear the amendment should be made applicable on the date of commencement and only if death of the coparcener is after the amendment. There is no possible interpretation in view of the express provision.
C. Parallel Issue of Gender Discrimination discussed in Judgment-II
An indirect issue of gender discrimination, though not directly concerning the appeal, has been raised by some learned counsel of the parties in the Prakash Case, which concerns right of Muslim women. The court observed that there is no safeguard against arbitrary divorce and second marriage during currency of first marriage. The issue was raised before court in Ahmedabad Women Action Group vs. Union of India in which the Hon’ble Court held that the issue involves policy intervention. The court observed that the issue involves the fundamental rights guaranteed under Article 14, 15 and 21. The Constitution Bench in Daniel Latifi vs. Union of India did not address the said issue but held that Article 21 include right to live with dignity which means that Muslim women could invoke fundamental rights in such matters. In Javed vs. State of Haryana the Hon’ble Court held that conduct rules providing for monogamy irrespective of religion are valid and could not be struck down on violations of personal law. The court referred to John Vellomattam vs. Union of India it was observed that Section 118 of the Indian Succession Act, 1925 restricting the right of Christians to make Will for charitable purpose was without any rational basis and was discriminatory against Christians and violated article 14. The court observed that the laws relating to marriage and succession are not part of religion and International Treaties and Covenants can be referred for reasonableness. In Charu Khurana vs. UOI court considered the issue of gender discrimination of membership to Cine costume and make up artist hairdresser association
In view of the above discussion, another step towards women empowerment has been taken; the macroscopic vision of the same can be summed up as follows:
- Explanations of the Succession Act cannot mean re-opening of partitions already affected.
- Normal rule is that proviso in any Act excepts out something which would otherwise be within the purview of enactment, the text, context so require a different rule may apply.
- Object of interpretation is to discover the intention of legislature
- Proviso to section 6(1) and 6(5) of the Succession Act clearly excepts out the transactions prior to the cut-off date.
- Rights under the amendment are available to living daughter of a living coparcener as on September 9, 2005 irrespective whether such daughters were born or not.
- Judicial Separation would do not debar relief under the Domestic Violence Act.
 Section 3 of the Act
 Section 2(f) of the Act
 Blood relationship
 Criminal Appeal No. 1545 of 2015
 (2012) 3 SCC 183
 (2014) 3 SCC 710
 (1993) 1 SCC 325
 Civil Appeal No. 7217 of 2013
Partition of property: means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition affected by a decree of a court.
 As per his Will
 Without Will
 (1997) 3 SCC 573
 (2001) 7 SCC 740
 (2008) 8 SCC 369
 (2003) 6 SCC 611
 (2015) 1 SCC 192