The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities. The rights can be claimed by the daughter born earlier with effect from 09.09.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 09.09.2005. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1.
Category Archives: Family Law
Family Settlement – Should Be Enforced
Hon’ble Supreme Court in the case of Kale v. DDC, 1976 RD 355 (SC), has observed that family settlements or arrangements are governed by a special equity and should be enforced if they are honestly made. It has further been observed that ordinarily the courts would lean in favour of family arrangements and technical or trivial grounds are to be overlooked and further that Rule of estoppel is to be pressed into service to prevent unsettling of a settled dispute. The said observations have been made by the Hon’ble Supreme Court by recognizing the virtue of family settlement amongst members of a family descending from a common ancestor as such members by entering into family settlement make an attempt to bury their differences and resolve the conflicts or claims or disputes in titles once for all in order to buy peace of mind and to bring harmony and goodwill in the family. In Bhagwan Krishan Gupta (2) v. Prabha Gupta, 2009 (107) RD 66, wherein it has been held that when there is a family settlement, evidently, technicalities in the matter of construction should not be insisted upon. Ram Asrey v. DDC, 2020 (146) RD 32.
Filed under Family Settlement
Daughter – Coparcener by Birth
The law relating to a Joint Hindu Family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely, daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realisation of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change”.
Section 6 of the Hindu Succession Act, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognises the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation and is well recognised. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-sections (1)(a) and (b). Danamma v. Amar, (2018) 3 SCC 343
Divorce Proceedings – Abuse of Process of Court
The intention of the legislation is at least to consider the rival contentions of the parties to matrimony and when there is sufficient material on record to show that the ingredients under Section 13 of the Hindu Marriage Act are made out, and under the given circumstances there is cruelty, the Court should either make effort to settle the dispute or relationship has to be brought to a complete end. One party to the proceeding cannot be permitted to take advantage and cannot be permitted to abuse the process of law court and on the other hand simultaneously resorting to all the process of misbehaving with the husband and harassing him. Such type of attitude by the respondent (wife) cannot be permitted coupled with the fact that the order happens to be an ex parte order because the wife has deliberately avoided participating in the proceedings, despite the notice being served by the publication which would deemed to be served under law. Anirudh Guru Pratap Singh v. Harmit Kaur, 2017 (125) ALR 358.
Filed under Abuse of Process of Court
Ancestral Property – According to Mitakshara Law
It is settled that the property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship. Shyam Narayan Prasad v. Krishna Prasad¸ (2018) 7 SCC 646.
Filed under ancestral property, Uncategorized
HUF – Manager has a distinct role from Karta
While there can be no doubt that a Hindu Widow is not a coparcener in the HUF of her husband and, therefore, cannot act as a karta of the HUF after the death of her husband, the two expressions i.e. karta and manager may be understood to be not synonymous and the expression “manager” may be understood as denoting a role distinct from that of karta. Hypothetically, we may not take the case of HUF where the male adult coparcener has died and there is no male coparcener surviving or where the sole male coparcener is a minor. In such a situation obviously the HUF does not come to an end. The mother of the male coparcener can act as the legal guardian of the minor and also look after his role as the karta in her capacity as his legal guardian. Such a situation has been found to be consistent with the law by the Calcutta High Court in Sushila Devi Rampuria v. ITO, (1960) 38 ITR 316 rendered in the context of the provisions of the Income Tax Act and while determining the liability of such an HUF to assessment under the Act.
A similar proposition of law is also to be found in Dhujram v. Chandansingh, 1974 MPLJ 554 though, again, in a littled different context. The High court had expressed the view that the word “manager” would be consistent with the law if understood with reference to the mother as the natural guardian and not as the karta of the HUF. Shreya Vidyarthi v. Ashok Vidyarthi, (2015) 16 SCC 46.
Custody of Child – Welfare Priciple
The Hon’ble Apex Court in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, stated in detail the law relating to custody in England and America and pointed that even in those jurisdictions, welfare of the minor child is the first and paramount consideration and in order to determine child custody, the jurisdiction exercised by the court rests on its own inherent equality powers where the court acts as “parens patriae”.
The word welfare used in Section 13 of the Hindu Minority and Guardianship Act, 1956 has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.
Second justification behind the “welfare” principle is the public interest that stand served with the optimal growth of the children. It is well recognized that children are the supreme asset of the nation. Rightful place of the child in the sizeable fabric has been recognized in many international covenants, which are adopted in this country as well. Child – centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation. Vivek Singh v. Romani Singh, (2017) 3 SCC 231.
Filed under Custody of Child, Family Law