Progressive Judgment under Hindu succession Act enhancing Gender Equality
As noted earlier, neither Mahadu/his legal representatives nor Sonabai/her legal representatives classify as heirs in either Class-I or Class-II of the Schedule to the said Act. Therefore, there was no question of Mahadu/his legal representatives claiming any priority over the claim of Sonabai/her legal representatives. In fact, both claim as agnates and the First Appeal Court was entirely justified in decreeing the suit for partition upon the said basis.
23] Mr. Mankapure, faced with this position, faintly urged that Sonabai did not qualify as 'agnate' within the meaning assigned to this term under Section 3(1)(a) of the said Act, since according to him, Sonabai was not related to her husband Shivba 'by blood' . This contention, however, is no longer res integra. The Division Bench of this Court, in case of Nanasaheb Devre (supra), has precisely considered and rejected such contention.
24] The Division Bench of this Court in case of Nanasaheb Devre (supra), has held that the provisions of said Act were meant to codify the law relating to intestate succession among the Hindus and to achieve uniformity and certainty about various otherwise nebulous and shifting matters. This objective has, however, to be understood against the backdrop of existing interpreting system of personal law. Therefore, it would not be appropriate to begin with any legislative premise that the term related "by blood" has been introduced in any narrow sense. Rather, effort will have to be made to reach its applicative connotation. By reference to several precedents and principles, the Division Bench has held that conceptually, the Hindu marriage, as far as the wife is concerned, clearly brings out consanguine results, the wife merging and sharing the particles of the body of her husband and as such that of their common ancestor. Such kinship or consanguinity conceptually as well as physically cannot be less than of the blood relationship.
Marriage is not only social but religious fact to a Hindu. It distinctively brings about union of two persons involving acceptance of a female into the family of the male spouse. Relation that ensues, is not restricted to male that marries but to the entire family of the male. Married wife in a family, thus becomes related to it wholly through her male spouse. The definition of the word "related" shows that to be related, persons could be treated as related to each other only if they belong to lawful or legitimate kinship. The definition makes reference to "kinship". The accepted modes by which such kinship results are clearly implied. Kinship is blood relationship. In social unit like family, marriage is an apparent mode of forging such relation. As far as the definition of "agnate" is concerned, the statute contemplates that this relationship should arise firstly, "by blood or adoption", and secondly, wholly through males. The words employed by the defining clauses having reference to blood will have to be understood and interpreted so as to further the obvious object of the Act and as far as possible to provide uniform system of succession.
Law is not merely a biological text tracing decent and ascent. It is a sociological sanction in favour of those who can claim succession to the deceased. Sociology and history of given law often speak through the legislated words. The choice of the words "by blood" in the definition along with the word "adoption" is clearly intended to recognise all social modes resulting in the legitimate relationship.
The words "by blood" cannot be read as "by birth" so as to restrict them to genetical incidence of family, for legislature, had it intended, would have surely spoken in that way.
25] The Division Bench of this Court at paragraph '17' has observed thus:
What then is the meaning of the word blood ? Does it signify only the vital fluid that sustains the life or is it also indicative of relationship which results in kinship by known and accepted modalities ? There are various meanings assigned to the word "blood", including the one biologically attributed. From Webster's Third new International Dictionary, pages 236 and 237, the following relevant meanings can be extracted :
"Blood" : 1 a. the fluid that circulates in the principal vascular system of vertebrate animals carrying nourishment and oxygen to all parts of the body and bringing away waste products for excretion and that consists of a liquid plasma containing dissolved nutrients, waste products and other substances and suspended red blood cells, leukocytes, and blood plateles-see CIRCULATION, RESPIRATION; COAGULATI-ON;
2a. blood regarded as a vital principle :LIFEBLOOD;
broadly: LIFE, b : human blood regarded as a hereditary differentiating factor typical of and specific to a given family, stock lineage, or race (English-) : esp : the national royal-used with the (a prince of the-), c : the whole body of physical traits passed from parent to offspring whether in men, animals, or plant; d : relationship by decent from a common ancestor (the Delaware grape shows a strong strain or vinifera-) : KIN-SHIP CONSANGUINITY (-is thicker than water), e : person related through a common familial or racial descent : KINDRED, LINEAGE, STOCK, RACE; also, obs : KINSMAN, RELATIVE.
The connotation of the word, therefore, is not merely biological but includes familial, racial and other recognised modes of kinship amongst men. It is futile to submit that the words related by blood should be equated with related by birth, though birth may be the primary incident of relationship between the two human beings. That is, however, of the only incident that brings about human relations into existence. When community of men develops and social relationship evolves, manifold relations come into being and in the context of relations, when the word blood is used, it suitably indicates the relationship by descent from a common ancestor or a kinship or consanguinity amongst a recognised social group. Marriage is an acknowledged social form bringing two beings together amongst the society of Hindus as a result of which the female enters the family of the male and becomes kindred of the family of the male and as such gets related as a kin of that family having common ancestor in the husbands family. The term by blood, therefore, in our view, has no biological or genetic limitation, but, including that, has a wider reach in the context of the personal law of Hindus and takes in female that enters by marriage the family of the male. Only because after the words by blood, the Legislature has put the words or adoption, thus indicating another legal form by which a person becomes the kin in the family, it is not possible to exclude the marriage from the connotation of the term "by blood". To have the relationship of the kind of agnate, it follows that relationship should arise wholly through males and should be a relationship of blood. As we have indicated, even prior to the present enactment, the applicative law held that as a result of marriage, a widow truly became gotraja sapinda in her husband's family. The principle on the basis of which the applicative judgments were rendered was clearly the principle to hold that by marriage the wife shared the community of the common particles of the body and was as such a relative by blood.
26] Applying the aforesaid principles,
submission of Mr.
Mankapure that Sonabai or her legal representatives
could not be included within the expression 'agnate'
cannot be accepted. The first substantial
question of law, will also have to be
decided against the Appellants-Petitioners.
Bombay High Court
M.S.More D.H. R.M. More And Ors vs S.S.More D.H. Smt.S.S.More & Ors on 10 December, 2015
Bench: M.S. Sonak
Citation;2016(2) MHLJ341
https://www.lawweb.in/2016/03/progressive-judgment-under-hindu.html
