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Whether The Hindu Succession (Amendment) Act, 2005 Has Retrospective Effect: Supreme Court Decides: Prakash And Ors Vs Phulavati And Ors

Arundhathi ,
  14 September 2022       Share Bookmark

Court :
Supreme Court of India
Brief :

Citation :
Civil Appeal No.7217 OF 2013

Case Title: 
Prakash and Ors Vs Phulavati and Ors.

Date of Order: 
October 16, 2015

Bench: 
Adarsh Kumar Goel

Parties:
Appellants- Prakash and Ors
Respondents- Phulavati and Ors

SUBJECT

This case was regarding a dispute over ancestral property that the respondent-plaintiff, Phulavati had demanded partition and separate possession of along with a different portion of share in another property, before the Additional Civil Judge, Belgaum. According to her, the property was inherited by her father from his adoptive mother, and on his death, the respondent claimed it. The Court dealt with sections under the Hindu Marriage Act, 2005, and assessed the scope of its retrospective effect. It was made clear that the facts of this case went into the judgement only for deciding on the legal issue of retrospectivity and the correctness of all the facts and findings were to be assessed in the light of this judgement. The judgement upheld these sections to be prospective and set aside the judgement of the High Court. The Court in this judgement also went into the aspect of gender discrimination, especially against Muslim women, and the necessity to take it up as a matter in need of urgent legislation.

IMPORTANT PROVISIONS

  • Section 6, Hindu Succession Act, 2005- This section was amended to make a daughter in a joint Hindu family a coparcener in her own right. She would be given an equal share of her father’s property as her brothers. This Section was applicable from the date of its commencement and upon the death of a Hindu after this date and the coparcenary property under him would be partitioned equally among sons and daughters. This amendment was brought about with the intention of giving female heirs equal rights as their male counterparts.

OVERVIEW

  • The respondent Phulavati following her father’s death, filed a suit before the Trial Court of Belgaum claiming her share in the properties inherited by him from his late mother. In this suit, she demanded partition and separate possession of 1/7th share in the property and 1/28th share in properties under another Schedule. Upon being contended that her claim can only be over her father’s share of property and not on the entire property, she amended her plea so as to claim her share according to provisions of the Hindu Succession Amended Act, 2005 which made her coparcener which made her entitled to coparcenary property, equal to that of her brothers’ shares.
  • She was given a claim over 1/28th share in certain properties and 1/7th share in some other properties and in some properties no share was given. She went for an appeal to the High Court. 
  • The High Court held that the provisions of the amended Act were applicable even if it is prospectively taken. This was not on account of the retrospectiveness of the law, but on account of the law that stands on the day, the proceedings take place. Therefore, the respondent had a claim over an equal share of coparcenary property in a joint family. 
  • The defendant-appellants approached the Supreme Court questioning the judgement of the High Court contending that amended Section 6 of the Act cannot be applied to this case.

ISSUES RAISED

  • Whether the Hindu Succession (Amendment) Act, 2005 was of retrospective effect.

ARGUMENTS ADVANCED BY THE APPELLANT

  • It was contended that the respondent can only make claim according to provisions under Section 6 of the Hindu Marriage Act, 2005 as it stood valid prior to the Amendment Act of 2005. It was also stated that she cannot make claims over the self-acquired property of members of a joint family.
  • The respondent’s father died on 18th February 1988, which does not make her coparcener to the properties at that time, as the Act was not amended then. The Amended Act was to be considered applicable from 9th September 2005 which was the date on which it came into existence.
  • According to Section 6 (1) of the Act, the coparcenary rights on property begin only from the commencement of the Act. Partitions that have effected before 20th December 2004, thus remain unaffected by the provisions of the Act.

ARGUMENTS ADVANCED BY THE RESPONDENT

  • The respondents pointed out that the amendment brought about in the Act was a piece of social legislation intended to prevent any kind of discrimination against women and thus it should be read retrospectively. Thus even if the respondent’s father died before the commencement of the Act, she was to be given coparcenary rights.

JUDGEMENT ANALYSIS

  • The Court observed that the contention made by the appellants regarding the dates of the respondent’s father’s death and the commencement of the Amended Act was made on the basis of plain language of the statute and the principle that unless a provision openly expresses or implies an intention that the amended right was to be taken in retrospective effect, it is considered prospective in nature. 
  • Section 6 (3) of the amended Act clearly states that the provisions under it are only applicable for a Hindu who dies after the commencement of the Act. Thus there is no scope for interpretation outside the text.
  • The respondent's contention that the amendment should be considered retrospective as it was a piece of social legislation does not stand as it was not provided so.
  • The Court observed that interpretation of the legislation depended upon the text and its context. In case of any confusion in its meaning, the most rational meaning is given. In case of any other conflict in its applicability, it should be applied in such a manner that its objective and intention is advanced. In this case, the Sections under question that are Section 5 and Section 6 of the Amended Act clearly intend to be applied only from the commencement of the Act and not for any date prior to that. 
  • According to the amended Act, partitions that took place and came into effect before 20th December 2004 remain unaffected by the provisions of this amendment. 
  • It was also stated that this decision was not in conflict with any of the judgements cited by the parties. The fact that in most of these cases the amended law would be applicable to pending proceedings prior to the date of its commencement, could not be considered a valid contention by the respondents in this case. Most of these cases were regarding amended acts that expressly stated that they were retrospective in nature.
  • The Court went on to analyse another aspect that needed discussion in this regard, which was gender discrimination against Muslim women, which also came up for consideration. This was dealt with in Part II of this judgement. It was observed that Muslim women faced gender discrimination with respect to no security provided regarding divorce. Many cases in which the first husband divorces them and remarries take place, resulting in loss of dignity and security for many women. 
  • Despite this issue being brought before this Court, it was left to the legislature as it was a policy issue. The Court pointed out that this was a fundamental rights issue under Articles 14,15 and 21. In Javed & Ors vs State Of Haryana & Ors [Writ Petition (civil)  302 of 2001] this Court had held that polygamy was a practice against public morality. Conduct rules for monogamy cannot be violated in the name of the personal laws of Muslims.

CONCLUSION

Thus, the Court submitted that this matter of discrimination against Muslim women was to be dealt in separate PIL and was to be brought before the appropriate Bench. A notice was sent to the Attorney General and National Legal Services Authority regarding this matter to be taken up. The respondent’s contentions were found to be of no merit and the High Court judgement allowing her coparcenary rights over the property was set aside. 

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