Smt Hussenabi vs. Husensab Hasan (1989)

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August 4, 2024

This article is written by Avneet Kaur. It offers an extensive exploration of the case of Sant Ram and Ors. vs. Labh Singh and Ors. (1964), a significant judgement of the Supreme Court of India dealing with pre-emption laws. The article discusses various legal provisions involved in the case, along with various aspects of the judgement. It also attempts to analyse the significance of the judgement in succeeding cases.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

The concept of pre-emption based on vicinage was the product of Mughal rule in India. The essence of this concept is that neighbours should be given the first opportunity to purchase the adjacent property. One of the basic tenets of this principle was to maintain the social fabric of the community and prevent fragmentation of land holdings.

Suppose X and Y are owners of their respective houses, which are adjacent to each other. Now, Y decides to sell his house to Z, who is a stranger to X. Going by the doctrine of pre-emption in this situation, X can repurchase the house sold to Z at the same price and conditions on which it was sold to Z by Y.

The case of Sant Ram and Ors. vs. Labh Singh and Ors. (1964) is one of the most prominent instances of the viewpoint of the Indian judiciary on pre-emption rights. The case deals with a similar situation as the one mentioned in the above illustration. The judgement in this case goes on to explain the scope of the term “laws in force” in the Constitution and its far-reaching implications for the validity of custom-based pre-emption rights.

Details of the case

Name of the case: Sant Ram and Ors. vs. Labh Singh and Ors. (1964)
Date of judgement: 15.04.1964
Parties to the case:

Appellant: Sant Ram and Ors.
Respondent: Labh Singh and Anr.

Equivalent citations: AIR 1965 SUPREME COURT 314, 1964 SCR (7) 745
Type of case: Civil Suit (Appeal)
Statutes involved:

Constitution of India, 1950
Rewa State Pre-emption Act, 1946

Provisions involved:

Article 12 of the Constitution of India
Article 13 of the Constitution of India
Article 19 of the Constitution of India
Section 10, Rewa State Pre-emption Act 1946

Bench: Chief Justice P.B. Gajendragadkar, Justice K.N. Wanchoo, and Justice K.C. Das Gupta

Background of the case

The case of Kunwar Digamber Singh vs. Kunwar Ahmad Syeed Khan (1914) elaborated on the history of pre-emption rights in India. It was observed that the prevalence of pre-emption in India began with the advent of Mughal rule. Therefore, it was a subject matter of Mohammedan law. Eventually, many villages started following the Mohammedan rules of pre-emption. But many communities also developed their own rules governing pre-emption based on customs. The practice of pre-emption is the result of an agreement between co-sharers of a particular village. The ultimate purpose is to prevent a stranger from becoming a shareholder in a village or community. When the rights of pre-emption are based on customs or contractual agreements, then the same must be established by evidence, if challenged.

The practice of pre-emption was in existence before the commencement of the Indian Constitution, when there was no fundamental right to acquire, hold or dispose of property. But after commencement, Article 19(1)(f) came into operation, which guaranteed the fundamental right to acquire, hold and dispose of property. Therefore, the effect of pre-emption claims on rights guaranteed under Article 19(1)(f) began to be challenged. The law of pre-emption varies in almost every state. The validity of the same has also been a subject of controversy due to differences in judicial decisions throughout the country.

Accordingly, in the context of the validity of provisions of the Rewa State Pre-emption Act, 1946; the debate was settled in the case of Bhau Ram vs. B. Baijnath Singh (1962), wherein the Supreme Court declared Section 10 of the said Act void. The case of Sant Ram also deals with pre-emption claims on grounds of the vicinage, backed by the force of custom and reaffirms the ruling given in Bhau Ram’s case.

Facts of Sant Ram and Ors. vs. Labh Singh and Ors. (1964)

Respondent no. 2, i.e., Kaiseri Begum, sold a plot and two houses in the town of Milak located in Rampur District to the appellants, i.e., Sant Ram and Ors, on Dec 4, 1953. The first respondent, i.e., Labh Singh, owned the adjacent property and claimed pre-emption on the ground of vicinage. However, the sale of the property in question did not include a strip of land 3 feet 6 inches wide that was located between Labh Singh’s house and the sold property.

The first respondent, i.e., Labh Singh, filed a suit for pre-emption in the Munsif’s Court, wherein it was held that since Labh Singh’s house was not completely adjacent to the sold property and there was a strip of land dividing the two properties, he cannot claim pre-emption, despite the prevalence of general custom of pre-emption in the locality.

Aggrieved by the decision of the Munsif’s Court, Labh Singh filed an appeal before the District Court, Rampur. The district judge allowed the appeal, recognizing Labh Singh’s right to pre-emption. In response to this decision, the appellants filed an appeal before the High Court of Judicature at Allahabad. The appeal was referred to a Division Bench of the High Court, wherein the appeal was dismissed by stating that the law of pre-emption was not void under Article 13 and was saved by Article 19(5) of the Constitution of India. The High Court certified the case for appeal and consequently, an appeal was filed against the decision of the Allahabad High Court before the Supreme Court of India.

Issues raised

Whether the term “laws in force” in Article 13(3)(b) of the Constitution of India includes custom and usage and whether Article 13(3)(a) shall be read with Article 13(1)?
Whether the right of pre-emption after the commencement of the Constitution becomes void?

Legal provisions involved in Sant Ram and Ors. vs. Labh Singh and Ors. (1964)

Constitution of India, 1950

Article 12 of the Constitution

Article 12 provides the definition of “state” for the purposes of Parts III and IV of the Constitution of India. It provides that, unless stated otherwise, the State shall include the –

government and parliament of India;
government and parliament of states;
local or other authorities within the territory of India;
local and other authorities are under the control of the government of India.

The present case involves the exploration of the question of whether actions related to pre-emption based on custom fall within the definition of the State as given under Article 12 of the Constitution of India.

Article 13 of the Constitution

Article 13(1) provides that all pre-constitutional laws in force that are inconsistent with the provisions under Part III of the Constitution shall be void to the extent of that inconsistency. The doctrine of severability is the personification of this constitutional provision. Additionally, the doctrine of eclipse in this regard provides that all pre-constitutional laws violative of Part III will remain dormant and not dead until the state amends them. The essence of the doctrine is that, after a provision of a statute or a law is found to be void or inconsistent, it should be considered whether the provision is capable of separation from the rest of the enactment. If it is not a material provision and is capable of being separated, then the validity of the rest of the enactment should not be affected by the invalidity of such a provision. The doctrine of eclipse postulates that if any law is found to be inconsistent with fundamental rights, then it should not be deemed dead or invalid. Rather, it is overshadowed by fundamental rights. The inconsistency can be removed through a Constitutional amendment.

Sub-clauses (a) and (b) of clause (3) of Article 13 are also discussed in the judgement. These provisions define the terms ‘law’ and ‘laws in force’ respectively. The term ‘law’ includes any ordinance, by-law, rule, regulation, notification, custom or usage having the force of law in India. However, in Ahmedabad Women Action Group vs. Union of India (1977), the Supreme Court held that personal laws such as Hindu law, Muslim law, and Christian law are not part of the definition of law under Article 13. According to Article 13(3) (b), the term ‘law in force’ means laws passed by the legislature of a Union or States or any other competent authority before the commencement of the Constitution, irrespective of whether they are currently in operation or not.

In the present case, one of the most significant questions before the Allahabad High Court was whether the term ‘laws in force’ includes, within its scope, customs or usages as well. The validity of the law of pre-emption was also discussed on the touchstone of Article 13 of the Constitution.

Article 19 of the Constitution

Sub-clause (f) of clause (1) of Article 19 encompasses the fundamental right to acquire, hold and dispose of property without unwarranted interference by the government. It acted as a safeguard against the unjust confiscation of property. However, this also had an adverse effect on the government’s ability to achieve social welfare goals and ensure equitable distribution of resources. Accordingly, to strike a balance between the government’s ability and individual property rights, the 44th Constitutional Amendment Act, 1978, was introduced, which transitioned this right from the status of a fundamental right to a constitutional right.

Article 19(1)(d) and Article 19(1)(e) deal with the rights of movement and residence of Indian citizens throughout the territory of India, subject to certain reasonable restrictions. Sub-clause (5) of Article 19 provides the following grounds on which rights can be restricted:

The interest of the general public;
Protection of the interests of any Scheduled Tribe

One of the most significant matters of discussion in the present case was the effect of pre-emption rights on the rights guaranteed under Article 19(1)(f). And whether the right of pre-emption is saved by clause (5) of Article 19 of the Constitution of India.

Section 10 of the Rewa State Pre-emption Act, 1946

Section 10 of the Act provides a categorization of the classes of persons who shall have the right of pre-emption. The two classes include:

Any individual who is a co-owner or partner in the property that is being sold and foreclosed;
Any individual who owns the immovable property adjacent to the property being sold and foreclosed or in case of transferring tenancy rights, the land that is linked to those rights.

Additionally, Section 10 provided certain rules for the determination of pre-emption rights as follows:

Persons in the first class mentioned above will have precedence over those in the second class;
And if the individuals belong to the same class, then the one having more proximity and having a closer relationship with the owner of the property being sold or foreclosed will have precedence over those with distant relationships.

The present case revolves around the implications and validity of this provision of the Rewa State pre-emption Act as violative of Article 13 of the Constitution of India. The right of pre-emption, originally known as ‘Shufa’, is based on three types of ownership.

The first being Shafi-i-Sharik or pre-emption based on co-ownership. This right is based on the co-owner or co-sharer’s right to acquire the co-owned property before it is sold to someone else.
The second is Shafi-i-Khalit or pre-emption based on participation in immunities. These immunities can arise in certain situations, such as when the pre-emptor is owner of a dominant or servient heritage, when the sold property is dominant heritage or when the pre-emptor’s property is dominant heritage to the third person’s property.
The third is Shafi-i-Jaar or pre-emption based on vicinage, the validity of which is discussed in the present case. This means that the owner of the adjoining property or house should have the opportunity to buy the adjacent property before it is sold to someone else.

Arguments of the parties

Appellant

The counsel on behalf of the appellants relied on the case of Bhau Ram vs. B. Baijnath Singh (1962) and contended that the right of pre-emption on the ground of vicinage cannot be claimed as the same had been declared void in the Bhau Ram case.

The appellants contended that, in the early stages of society, it may have been necessary to restrict the right of transfer, but with the commencement of the Constitution and modernization, the same has become outdated and cannot exist.
It was also put forward that Article 13 of the Constitution of India provides that any pre-constitutional law having the force of law in the territory of India, if found to be inconsistent with any of the fundamental rights provided by the Constitution, shall be void to the extent of that inconsistency. And since the law of pre-emption after the commencement of the Constitution puts unreasonable restrictions on the right guaranteed under Article 19(1)(f). Therefore, the same shall be void to that extent.
The reasoning behind the appellant’s contention that the right of pre-emption goes against the enjoyment of the right guaranteed under Article 19(1)(f) was that pre-emption claims restrict the seller’s right to handle, manage or dispose of property in any manner he likes, while at the same time interfering with the buyer’s right to purchase such property.
Furthermore, as per Article 19(5), only reasonable restrictions in the interest of the general public can be imposed on the right to acquire, hold and dispose of property under Article 19(1)(f). However, the restrictions imposed by the law of pre-emption are neither reasonable, justified nor beneficial to the public interest.

Respondent

The respondents contended that the Bhau Ram case is not suitable in the present circumstances because the former dealt with a legislative measure and the latter is concerned with custom.
It was also put forward that pre-emption arises out of contracts between co-sharers or customs prevalent in the community. Therefore, Articles 14 and 15 do not apply as they are concerned with the state as defined under Article 12 of the Constitution.
The respondents argued that neither customs nor contracts amount to law as defined under Article 13 (3)(a) of the Constitution of India.
Further, it was contended that clause (1) of Article 13 deals with ‘all laws in force’, and the term ‘custom’ is nowhere to be found in the definition of the phrase ‘laws in force’ in Article 13(3)(b).
According to the counsel on behalf of the respondent, Article 13(1) cannot be interpreted in light of the definition of the term ‘law’ as given under Article 13(3)(a), because it was meant to define ‘law’ in Article 13(2). Only Article 13(3)(b) and the definition of the phrase ‘laws in force’ thereunder govern Article 13(1).
The respondents contended that henceforth, as the definition under Article 13(3)(b) does not talk about custom, the law of pre-emption based on custom cannot be said to be inconsistent with Article 19(1)(f).

Decision of the Division Bench of High Court

The Division Bench of the Allahabad High Court held that there is a difference of opinion and authority on the validity of pre-emption laws. But the balance of authority lies in favour of their validity. Though the right of pre-emption puts certain restrictions on the right to acquire, hold and dispose of property, it cannot be said to be unreasonable or against the public interest. The Bench recognized that every community has the desire to maintain homogeneity and prevent fragmentation. Therefore, if a stranger interferes and acquires a part of the property, then difficulties may arise. In order to secure the peaceful enjoyment of co-owned property, the co-sharers should be given the priority right to buy the shares of other co-sharers.

Additionally, it was held that the restrictions imposed by pre-emption rights on the transfer of property are limited in nature because:

Firstly, it is only available to specific classes of people as provided under Section 4 of the Rewa State pre-emption Act, 1946 and only gets activated when a real sale of property takes place;
Secondly, when a person exercises his right of pre-emption, he merely substitutes the vendee and pays the full price of the property. The preemptor gets bound by the same conditions and liabilities as the vendee would have been.

Henceforth, the right of pre-emption is not inconsistent with the right guaranteed under Article 19(1)(f) and is saved by clause (5) of Article 19.

Issue-wise judgement in Sant Ram and Ors. vs. Labh Singh and Ors. (1964)

Interpretation of Article 13(3)(b) and its relationship with Article 13(1)

The Supreme Court rejected the contention of the respondents that Article 13(3)(b) alone governs Article 13(1) and the definition of ‘law’ under Article 13(3)(a) cannot be used for the purpose of Article 13(1). The Supreme Court held that Article 13(3)(a) must be read with Article 13(1) because if the definition of the phrase ‘laws in force’ had not been given, then necessarily the definition of the term ‘law’ would have been read with clause (1) of Article 13. The reasoning behind the respondent’s contention was that Article 13(3)(b) does not take into account customs and usages and thus, the law of pre-emption based on custom was not affected by Article 19(1)(f).

The Supreme Court held that it must be taken into consideration that the intention behind defining ‘laws in force’ was not to exclude the definition of ‘law’ under Article 13(3)(a). Article 13(3)(b) gives an inclusive definition as it comprises not only laws made or passed by the legislature or any other competent body before the commencement of the Constitution but also laws that are not in operation in specific areas or at all, though present in the statute book. It was held that this definition of ‘laws in force’ does not restrict the definition of the term ‘law’; rather, it only extends it and both of them are complementary to each other.

The Supreme Court in its judgement provided two reasons as to why custom and usage having the force of law in the territory of India shall be held to be included within the meaning of the phrase ‘laws in force’:

Non-inclusion of customs and practices in the definition of ‘laws in force’ would narrow down and restrict the application of the term ‘law’, thereby rendering the fundamental rights ineffective and non-operational; and
Under Article 13(2), the term ‘law’ does not include customs or usages because the same are not made by the state. If we go by the reasoning that Article 13(3)(a) applies to Article 13(2) and not Article 13(1), then the term ‘customs’ or ‘usages’ would not apply to either clause of Article 13. However, this reasoning does not align with the original intent behind the definitions.

Henceforth, the Supreme Court held that both definitions govern the meaning of Article 13(1) of the Constitution.

Validity of law of pre-emption

The Supreme Court relied on the case of Bhau Ram vs. B. Baijnath Singh (1962) in the context of Section 10 of the Rewa State Pre-emption Act, 1946. In the Bhau Ram case, it was held that the law of pre-emption based on vicinage is void because it imposes unjustified limitations on the right of individuals under Article 19(1)(f) to acquire, hold and dispose of property. It was held that this provision imposes restrictions on the vendor and the vendee and there was no public advantage arising out of it. The only justification for its support was that it prevented people belonging to different religions, races, and castes from acquiring property in a homogenous area or community. However, this reasoning is inconsistent with the right guaranteed under Article 15 of the Constitution of India.

Therefore, the Supreme Court held that if we go by the decision in the Bhau Ram case, then this appeal must succeed. The Supreme Court held that the reason given behind holding Section 10 void would equally apply to a custom. Hence, since Section 10 is void, the right of pre-emption based on custom would also be void.

Henceforth, the Supreme Court ruled in favour of the appellant and held that each party would bear its own costs throughout.

The rationale behind this judgement

The Supreme Court in the case of Sant Ram vs. Labh Singh (1964) dealt with the effect and operation of pre-emption post-Constitution. The Supreme Court declared Section 10 of the Rewa State pre-emption Act, 1946, void in line with the decision given in the case of Bhau Ram vs. B. Baijnath Singh (1964). The rationale behind the Supreme Court’s judgement was based on several factors

Firstly, the law of pre-emption is a pre-constitutional product, a time when there were no fundamental rights, but after the commencement of the Constitution, several fundamental rights were conferred on the Indian citizens, one of them being the right to acquire, hold and dispose of property as given under Article 19(1)(f). Further, the Constitution also provided mechanisms to safeguard the rights, such as Article 13, which provided that any pre-Constitution law, if found to be inconsistent with fundamental rights of citizens, must be declared void to the extent of such inconsistency.
Secondly, the Supreme Court observed the manner in which pre-emption claims on grounds of vicinage affect the fundamental rights of others. Pre-emption prevents the seller of a property from dealing with or selling his property in any way or to anyone, according to his will. The buyer of such a property may also face litigation even after providing notices or fulfilling all terms and conditions of the sale. Hence, it violates the rights of the seller and buyer to acquire, hold and dispose of property under Article 19(1)(f) of the Constitution.
Thirdly, pre-emption may have been necessary in the early stages of development of society to promote social harmony and stability and to prevent disputes. However, in modern society, there is a robust property rights mechanism in place to deal with such issues, thereby making pre-emption redundant.

Precedent followed in the case

Bhau Ram vs. B. Baijnath Singh (1962)

In this case, the Supreme Court collectively heard three appeals that raise the question of the constitutionality of certain provisions of pre-emption laws prevailing in the states of Madhya Pradesh, Delhi and Maharashtra. Three suits for pre-emption were brought by pre-emptors who were deceased and the consequent appeals were by the purchasers of the property that is subject to pre-emption. One of the appeals dealt with the validity of Section 10 of the Rewa State pre-emption Act, 1946. The Supreme Court of India held that the right of pre-emption on grounds of vicinage as provided under Section 10 is void because it imposes unjustified restrictions on the right guaranteed under Article 19(1) (f). It restricts the right of the seller to sell his property to the buyer of his choice on such terms as may be agreed upon between them. The buyer can face litigation even after providing the requisite notice to the person claiming pre-emption. The only reason behind supporting claims for pre-emption is to prevent heterogeneity of religion, race, or caste in a community and ensure consolidation of land holdings. However, this reason is inconsistent with the letter and spirit of Article 15 of the Constitution of India.

In the Sant Ram case, the Supreme Court relied on its judgement in the Bhau Ram case and reiterated the void nature of Section 10.

Significance in subsequent cases

Ramdayal Sahu vs. Hari Shankar Lal Sahu And Ors. (1966)

In the case of Ramdayal Sahu vs. Hari Shankar Lal Sahu and ors. (1966), the Patna High Court, while dealing with the validity of Section 47 of the Chota Nagpur Tenancy Act 1908, relied on the judgement in the case of Sant Ram vs. Labh Singh (1964) and held that the effect of the judgement is that any law, including that which has been in force before the commencement of the Constitution, such as pre-emption law, whether based on customs or statute, should undergo the test of reasonable restrictions as provided in Article 19. If the law is found to be inconsistent with regard to any right or liberty of the citizens to deal with their property as they please, then the same must be struck down as void.

Youth Welfare Federation vs. Union Of India (1996)

In the case of Youth Welfare Federation vs. Union of India (1996), one of the issues that the Andhra High Court dealt with was whether the phrase ‘laws in force’ as defined in Article 13 of the Constitution includes personal laws since they are largely based on customs and practices. The High Court, while giving its decision, relied on the judgement in the Sant Ram case and observed that customs and usage having the force of law in the territory of India must be contemplated by the expression ‘laws in force’. However, the fact that personal laws are also a result of customs and administered by courts is not sufficient since they are largely uncodified. It was further recognized that the word ‘laws’ in Article 13(3)(b) has the same meaning as ‘law’ in Article 13(3)(a).

Critical analysis of the case

The judgement in the case of Sant Ram vs. Labh Singh (1964) dealt with the implication of pre-emption laws in the post-constitutional period. The Supreme Court declared Section 10 void and upheld the stature of fundamental rights over customs or laws. The law of pre-emption was a reason to prevent people belonging to other communities, religions or races from becoming property share-holders in a particular village or community. This prevented the growth of diversity, which is the main source of societal growth and development. The customary practice of pre-emption on grounds of vicinage did not in any way benefit the general public. Rather, it fostered feelings of discrimination, thereby going against Articles 14 and 15 of the Constitution of India. The judgement proved to be quite controversial among many communities where pre-emption was a prevalent custom. However, due to variations in pre-emption laws in different states, the authority on the validity of such laws continues to remain unbalanced. A firm stance on the validity or invalidity of pre-emptions across the country will ensure uniformity in their status and application.

Conclusion

The legal battle surrounding the validity of pre-emption claims on grounds of vicinage was ended by the decision of the Supreme Court in the Sant Ram case. The case upheld the significance of precedents, the rule of law and the fundamental rights of citizens. The Supreme Court aptly analysed the definition of the terms ‘law’ and ‘laws in force’ under Article 13 and their applicability to Article 13(1). The inclusion of customs in the expression ‘laws in force’ ensured that no laws or customs having the force of law in the territory of India before the commencement of the Constitution resulted in a violation of the fundamental rights of the citizens. Apart from that, the court also recognized the importance of individual property rights and the reasonableness of restrictions that can be imposed in their exercise. Overall, the judgement settled the debate surrounding pre-emption on grounds of vicinage by declaring Section 10 of the Rewa State Pre-emption Act, 1946, as void.

Frequently Asked Questions (FAQs)

What is pre-emption?

The principle of pre-emption states that the owner of an immovable property has the right to purchase another immovable property in its vicinity or adjacent to it or if it is a co-owned property, before the same is sold to anyone else. It also entitles the person claiming pre-emption to repurchase the property if it has already been sold to another person.

What is the status of Article 19(1)(f) of the Constitution of India?

Article 19(1)(f) provided one of the fundamental rights to acquire, hold and dispose of property. Every Indian citizen had the right to deal with or manage his property according to his will without interference from the government or any person. However, this restricted the state’s right to acquire property for developmental and public welfare purposes. Therefore, the 44th Constitutional Amendment in 1978 removed this right from the ambit of fundamental rights and placed it under Article 300A as a constitutional right.

Who can claim pre-emption?

The right of pre-emption arises out of either custom, contract or statutory provisions. The law of pre-emption varies across states; therefore, it depends on the jurisdiction and nature of the property involved. However, usually co-owners, shareholders, and neighbours can claim pre-emption.

References

Basics of financial literacy : all you need to know

By

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August 3, 2024

This article has been written by Usha SP pursuing an Executive Certificate Course in Corporate Governance for Directors and CXOs from Skill Arbitrage.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

Financial literacy refers to the ability to manage money effectively. Money is what is earned in return for the efforts and time you contribute to selling goods or providing services to others. Managing money refers to making the best use of money and controlling it to optimise wealth creation.

It is not always necessary that people with a consistent income and a stable and steady job be financially successful. Likewise, it is not always true that people who earn less are not financially successful. A successful financial journey depends on a person’s attitude towards money and the efficiency with which it is managed.

Financial attitude refers to the way one perceives or evaluates money and their preferences for its usage. Depending on their “financial attitude,” people may choose to decide the amount of wealth they would like to create. People with a financial attitude who want to create more wealth, will need to apply the right financial skills and techniques to achieve their financial goals.

Financial literacy is the process of having the right financial attitude and applying the right financial skills to increase personal wealth and achieve financial goals. It is an evolving journey in which different aspects of finance management are to be applied based on the financial situation.

This article seeks to highlight the significance of financial literacy in today’s fast-paced and dynamic world. Wealth creation provides a path to financial freedom. It is also a symbol of one’s personal and societal stability and success.

Importance of financial literacy

We invest substantial time and effort in earning money. Managing it efficiently is as important as earning money itself. Money that is not well “managed” is wasted time and effort. Being financially literate helps improve our personal finances and accelerate our efforts to achieve our financial goals. It helps us avoid financial pitfalls and “setbacks”, by enabling us to make well-informed financial decisions. Financial literacy helps us navigate the complexities of numerous financial products and services. It prepares us for financial emergencies and helps us achieve financial milestones. It gives us the ability to improve our spending habits and pay off our debts. Financial literacy grants us the freedom to contribute meaningfully to our family and society. It protects us from falling prey to financial fraud and safeguards our financial resources. Therefore, it is imperative to be financially literate. It provides us with the flexibility to lead the life of our choice within our means and desires.

Increased financial security: Financially literate individuals are better equipped to make sound financial decisions, which can lead to increased financial security. They are more likely to have a budget, track their spending, and have an emergency fund. This can help them weather unexpected financial storms, such as a job loss or medical emergency.
Greater financial independence: Financial literacy can help you achieve greater financial independence. When you understand how to manage your money wisely, you can set and achieve your financial goals, such as saving for retirement, buying a home, or paying for your children’s education. This can give you a sense of control over your financial future and allow you to live life on your terms.
Reduced risk of financial problems: Financially literate individuals are less likely to experience financial problems, such as bankruptcy or foreclosure. They are more likely to understand the terms of their loans, avoid predatory lending practices, and make informed investment decisions. This can help them protect their credit, avoid debt, and build a solid financial foundation.
Improved decision-making: Financial literacy can help you make better financial decisions in all areas of your life. From choosing a credit card to investing in a retirement account, having a strong understanding of personal finance can empower you to make choices that are in your best interests.
Increased confidence: Financial literacy can boost your confidence in your ability to manage your money and achieve your financial goals. When you know how to handle your finances effectively, you can feel more in control of your life and less stressed about money.
Stronger relationships: Financial literacy can also strengthen your relationships with others. When you are financially literate, you can communicate more effectively about money with your spouse, family, and friends. This can help prevent financial disagreements and create a more harmonious household.
Greater peace of mind: Financial literacy can provide you with greater peace of mind. When you know that you are managing your money wisely and working towards your financial goals, you can relax and enjoy your life without worrying about money.

There are many ways to become financially literate. Some of the most effective ways include:

Taking a financial literacy course: Many colleges and universities offer financial literacy courses. These courses can teach you the basics of personal finance, including budgeting, saving, investing, and borrowing money.
Reading books and articles about personal finance: There are many excellent books and articles about personal finance available. These resources can provide you with valuable information and insights that can help you improve your financial literacy.
Talking to a financial advisor: A financial advisor can help you create a personalised financial plan and provide you with ongoing guidance and support.

Who needs to be financially literate

Any person who wants to be financially successful and gain financial freedom should aim to be financially literate. Parameters such as age, gender, income, and educational or social background do not play a role in determining the need to be financially literate. A person who is not financially literate could find it challenging to achieve financial goals. He may also land in a distress situation in cases of financial emergencies. It is, therefore, imperative that one start learning the usage of financial products and services and the techniques needed to manage their finances at an early age in life. An early starter can fast-track wealth creation by starting to save early to leverage the power of compounding money and avoid making financial blunders.

Financial literacy can be achieved by various mechanisms, such as reading up on research information available on the internet, subscribing to financial content, listening to podcasts, reading books, observing others behaviour in different financial situations and learning from their experiences, reaching out to financial experts or attending workshops and conferences.

Steps to financial literacy

The first step to financial literacy is having the right financial attitude and setting the right financial goals.

Financial attitudes differ by individual and situation. However, financial goals, though individualistic, can be planned and set in advance. Goals can be short, medium or long term.

Short term goals could be just about achieving certain immediate or short-term financial objectives. They could be as simple as managing your expenses within a limited part of your income, deciding on the value of your rental accommodation, subscribing to OTTs, planning short vacations or making entertainment choices.

Medium-term goals are slightly more long term such as a five-year goal. It may include joining a college, planning an international vacation, buying expensive electronic gadgets or buying jewellery.

Long-term goals are life goals such as higher education, investment in property, buying a medical plan or creating a retirement corpus. Long-term goals generally take a longer time to achieve and are more strategic in nature.

Setting short-term, medium-term and long-term goals helps allocate money to each of these goals to achieve them on a timely basis. There is no age limit to set or execute any of these goals. For example, a college student may not find it interesting or impressive enough to allocate money for a retirement or emergency corpus. However, early investment in these long-term goals reduces the contribution size and thereby makes it easier to achieve the goal. The power of compounding also works to the advantage of an early starter. The money that is saved for long term goals compounds over time and creates a larger corpus, as compared to those who start late. A person who starts late must make larger contributions, making it more difficult to achieve the goals.

Principles of financial literacy

Proper understanding and application of financial principles help individuals attain personal financial goals faster. There are five simple yet key principles of financial literacy that can be applied to short-term, medium-term or long-term financial goals:

Earning income

This is an essential and most important element of the financial journey. An individual should create a steady and stable source of income to start his financial journey. The higher the income, the faster an individual can achieve his financial goals. But even where income is not high, it is important that it be steady. A consistent income helps plan the financial outcome better.

Income can either be primary or secondary. Primary income refers to the income earned from a regular day job, while secondary income is over and above the primary income. It could be generated from small trading businesses or other part-time gigs such as content creation, freelancing assignments, teaching jobs or renting an electronic device that is not in use regularly.

Saving

Savings are money not spent and that is available for future use. Savings can be accelerated by keeping track of expenses, using financial products such as credit cards, and understanding various financial products and services to maximise benefits from financial products such as insurance, mortgage options, and student loans. The objective here is to minimise expenses and save money. It can be done through bank savings, insurance savings, retirement or pension funds or investment funds. New age digital options such as P2P lending, interest-free EMI options, pay wallets, and other digital payments can also be leveraged to save money. It is important to understand the product or service to optimise the benefits of such options.

Budgeting

Budgeting includes allocating money for expenses and for investments in different financial goals. The proportion and ratio of allocation to each of the financial goals can be determined based on the kind of goal and the amount of money needed to fund the goal. An important element of budgeting is decision-making regarding how much to spend and how much to save. The 50-30-20 rule can be a good method to start with, where 50% of the money earned is spent on essential needs such as food, clothing and shelter. Of the remaining 50%, 30% is spent on luxuries or desires such as entertainment or subscriptions, and the last 20% is saved for future needs to achieve financial goals.

Paying off debt

Making credit card payments on time, clearing bills on time, and managing loans on time help in paying off debt. Paying off debt reduces recurring expenses by way of saving on interest costs, which in turn helps in additional savings.

Investing

Determining the right investment that will help compound money and reduce investment related risks is another key principle of financial literacy. This is a specialised area where one must analyse feasible portfolios and make diversified investments that serve the purpose of wealth creation and risk minimisation.

Numerous investment products and services are available in the market, and one has to make use of financial skills to decide the optimum one based on the financial goals. The general investment portfolios are real estate, stocks and shares, commodities such as gold, silver, or copper, mutual funds, exchange-traded funds and bank savings. Each of these portfolios has its own elements of risks and rewards. The portfolios that generate high returns could have high risk elements too. The risk vs. reward analysis is, therefore, a critical element in investment decisions.

Conclusion

It is important to take the first step and “start” the financial journey by being financially literate. While it is always a good time, an early start would be a game changer in the financial journey to success. Like other essential skills such as time management, critical thinking, decision making, etc., financial literacy is also a skill that will immensely benefit everyone, particularly youngsters. This is an area that calls for immediate attention, and institutions such as schools and colleges should make efforts to create financial awareness at an early age so students can benefit from the financial knowledge they derive.

References

AI tools for competitive analysis : all you need to know

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August 3, 2024

This article has been written by Sailee Karambe pursuing a Diploma in Content Marketing and Strategy from Skill Arbitrage.

This article has been edited and published by Shashwat Kaushik.

Introduction

In today’s glamorous dimension and outreach of AI tools, the work of many competitors in the market is quite notable. Many profit-making techies have grown their businesses using AI tools and various platforms. Artificial intelligence has always been in the limelight for prospective high-tech companies, and it is capable of revolutionising a strong cord amongst technology and its end users. Hence, the question, how easily is AI accessible to all?

What is artificial intelligence

AI is a state-of-the-art tool that assists in collecting information, measuring and fabricating it, and then inspecting and scrutinising the data, which in turn helps to build a foundation. In the market, there are countless tools to seek that help expeditiously and skilfully study and track competitors’ progress. AI is extensively used in large businesses to direct their functioning and vision accurately to a great extent, as a human brain may not be able to deliver the results with that agility.

Competitive analysis is a very important feature for devising action plans for business growth. It comprises assessing competition and its fierceness in the market, how opponent businesses are performing, their current placement in the market, vulnerability to any aspect, etc. A detailed analysis provides assistance in conducting a SWOT analysis of one’s own businesses and how one can improve their market position. Artificial Intelligence has substantially helped to collect and define data required for such competitive analysis.

AI tools for competitive analysis

The way AI has been performing in collecting data and statistics to determine competitive analysis in the market is awe-inspiring. Below are some pointers:

Simplified and quick data processing

Web scraping is one such AI skill that assures that legit and the latest data is provided about potential competitors and their products, pricing, and marketing strategies. All the information from any site, social media posts, or any posts on blogs is scrapped, and the data is automated to make it easily accessible to analyse the business trends of competitors. Hence, information is gathered in bulk in order to evaluate prospects in the market.

Aggressive analysis of trends

Market analysis judgement helps in diagnosing that space or clients where one can do branding of the product to capture potential clients. This could help in developing emergency plans to reduce uncertainties and liabilities. In competitive analysis, using AI technology also helps in the advancement and expansion of any project, contributing to designating the required amount of time, which eliminates unnecessary downtime. It also contributes to better funding for the vital company’s drive. It is finally the path that one selects to accommodate the imminent trends in the dynamic market.

Importance of AI today

Artificial intelligence has the ability to reconstruct one’s growth with adeptness, expertise, and illustrative exposure to the virtual world. It’s a journey from transforming our day-to-day activities to the way we welcome technology into our lives and incorporate it into businesses. Does AI matter in today’s fast-growing world? Yes, it does, and we have numerous reasons to call for:

Performance and mechanisation

Here, what is meant is the automation of repeating functions or tasks any firm undertakes. This will help lift performance and efficiency so the business can clear up tasks faster and deliver service on time. For example, one can use AI tools to anticipate the performance of a manual mechanical system based on previously collected data.

Judgement and direction

AI has the ability to process huge data files and unveil design, flow, or judgement that any individual might fail to collect. AI-driven tasks can also reduce expenses and leverage computer programme use, the processing of language spoken to create huge documents instantly, and the initiation of quick, accurate decisions. For example, AI technology can help in making informed decisions prior to a court case being held, speeding up the final verdict of court cases, etc.

Customising data

AI generates data as per human demand, as it will customise the output and present it to the end user. Let’s say the banking sector is booming. Many banks have opted for AI tools to cater to customers’ needs, such as marketing their products and services on their websites, managing risks, etc. Here, AI helps in processing the data as instructed and presenting it in a customised way.

Save up expenses

AI has the capability to reduce expenses by studying purchases in the past, how clients have been performing, and the advancement or revision of business procedures, if any. For example, by reducing human errors based on past analysis and optimising resource allocation, an AI tool can help save expenses by scrutinising the issue in the production process.

Modernisation

AI is fascinating and compelling for modernisation. Today’s necessity towards a broader and more advanced future has made AI more innovative in areas such as the improvement of products and services. Google Maps uses AI technology to generate real-time traffic updates and track exact locations; the Apple iPhone uses SIRI technology, which helps to make our lives easier.

Various AI tools to use

There are various AI tools which are present in the market, many of which have useful features, such as video and audio editing, image creation, content and copywriting, art generation, web scraping, SEO tools, data collection, etc. The use of AI tools is no longer a luxury; it has become a necessity. Nowadays, there are ample job opportunities in the market, one of which is the role of a Virtual Assistant (VA). The demand for VAs has never been higher. People have become more connected and businesses respect remote work. Specialists who have the competency to streamline their work can deliver quick and quality work. Such individuals are needed and respected.

How accurate is AI

AI tools are not always accurate, but they can be in some cases. The results of AI can vary depending on the guidelines used in the development of the tool. The AI will produce output that is anticipative and can be accurate more often when statistical data is in the command. If the data is not verified or recognised by a human brain one cannot make inferences that the processed data is accurate. An AI lacks sensibility, as it cannot feel or understand in the way an intelligent human brain does. But there is no doubt that AI has already overpassed human brains in many areas; for example, video games have AI players, computers, video makers, etc.

In our childhood, we learn and adapt to many emotions, feelings, workability, pressure, logical thinking, etc as these are human traits, but can an AI tool adapt to such traits? That can be possible, as we spend a lot of years knowing these human characteristics, and so can AI adopt such a mindset, but at present, this is not in existence. However, if AI accomplishes gaining humane qualities, then that might be a pinnacle point where there will be no intervention of the human brain and this kind of automation could significantly penetrate the market scenario.

SWOT analysis using AI

SWOT analysis, short for strengths, weaknesses, opportunities, and threats, serves as a valuable tool for organisations to gain insights into their market position and set strategic goals for improvement. While traditionally conducted through manual surveys, advancements in artificial intelligence (AI) have revolutionised the process.

AI-powered SWOT analysis tools enable organisations to gather and analyse vast amounts of data quickly and efficiently. These tools leverage natural language processing (NLP) to extract key information from various sources, such as company reports, news articles, social media platforms, and customer reviews. This comprehensive data collection process allows for a more accurate and comprehensive understanding of an organisation’s internal capabilities and external environment.

With AI, organisations can conduct SWOT analysis not only for themselves but also for their competitors. By analysing competitors’ strengths and weaknesses, organisations can identify potential vulnerabilities and develop strategies to gain a competitive advantage. AI tools can track competitors’ market share, product offerings, pricing strategies, customer satisfaction ratings, and more. This information empowers organisations to make informed decisions regarding product development, pricing, marketing campaigns, and overall business strategy.

Additionally, AI-enabled SWOT analysis tools offer real-time insights, enabling organisations to adapt quickly to changing market conditions. By continuously monitoring key metrics and trends, organisations can stay ahead of the curve, identify emerging opportunities, and mitigate potential threats.

In summary, AI has transformed SWOT analysis from a static, time-consuming process into a dynamic and data-driven tool. By leveraging AI tools, organisations can gain a comprehensive understanding of their strengths, weaknesses, opportunities, and threats, both internally and externally. This empowers them to make strategic decisions, stay competitive, and achieve long-term success in a rapidly evolving business landscape.

Strengths

The biggest strengths of any business are its faithful customers, brand pricing, and market position. AI tools can be used to locate the right place to enter the niche market for new brands and potential customers for existing brands.

Weaknesses

One of the greatest weaknesses that a business can have is some intrinsic factors like obsolete technology used, the right amount of marketing not done to create a broad image and unskilled employees in the organisation. AI tools and software can facilitate the right training for employees in organisations and deal with image branding, as AI itself is an updated version of the technology.

Opportunities

Formulating action plans and techniques, having the ability to foresee future trends, and making relative decisions to evade contingencies and risks in the future are some opportunities associated with AI tool assistance for competitive analysis in business.

Threats

These could be some extrinsic factors like alterations in government policies which can create prohibitions in promoting the brand, negative connotations in other languages in different countries, fierce competition, descent in economic budget, etc. Here, AI helps to alleviate such threats by alerting us well in advance to avoid them. This is possible by using AI tools for competitive analysis of not only consumers and their buying behaviours but also about the latest products available in the market.

Suggestions

AI tools for competitive analysis are definitely worthy and indisputable. The way AI is advancing very quickly, it seems all our future tasks will get automated. This seems really exciting, but what about manual jobs? It should not hamper the employment cycle. Hence, AI, in a way, is a boon to the technology world and a mere job snatcher. There is no doubt that the process of analysis and execution has tremendously changed and been transformed in a very smooth and uncomplicated way due to AI tools. The data, which was earlier not accessible to all, is now obtained very effortlessly. It is said that there is about a 20% increase in cost efficiency since companies have adopted AI tools for competitive analysis. AI assists organisations in better decision-making and performing strategies effectively. AI is the future.

Conclusion

Finally, it is understood that AI tools and technology are trending and represent the future for obtaining the most calculative and comparative trends and insights. The data that is processed by AI can be obtained accurately in numerous languages. Yes, there could be many challenges while using the tools but if one beats them and understands the technique to use them in their businesses, it would be highly beneficial. One can filter out their strategies to elevate their businesses and accomplish their targets. The impact of AI on humans is very impressive and it is one’s responsibility to steer away from unethical practices in using these tools to establish an unbiased platform for all.

References

Prakash vs. Phulavati (2015)

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August 3, 2024

https://t.me/lawyerscommunity

This article is written by Arya Senapati. It deals with the landmark case of Prakash vs. Phulavati (2015). It attempts to analyse the case through its factual matrix, legal issues, contentions and judgement. It also covers important provisions and legal principles concerning women’s rights as coparceners under Hindu personal law.

Table of Contents

Introduction

Article 14 and Article 15 of the Indian Constitution guarantee gender equality to women and provide them with the fundamental right against discrimination of any kind. One of the areas where women faced the most amount of discrimination was inheritance or claim over Hindu joint family property. Traditionally, the inheritance of the property of a Hindu Joint Family was governed by the Mitakshara system. As per the old understanding of the Mitakshara system, women were not considered coparceners and had no claim over the property of a Hindu joint family forming a coparcenary. They were entitled to stridhan, and the concept of dowry emerged because women did not have access to property. The concept of dowry led to many problems and severe cases of dowry deaths for women. They did not have economic freedom of independence due to this lack of entitlement over inherited property. Owing to all these factors, the Hindu Succession Act, 1956 was amended by the Hindu Succession (Amendment) Act, 2005, which replaced Section 6 of the Act. The amended provision provided equal coparcenary rights to women, the same as their male counterparts, and they attained full claim over the joint family property. Even though this piece of legislation was highly progressive, its interpretation raised multiple questions. The primary question being regarding the retrospective application of the amended provision. This led to a series of decisions, one of which was the case of Prakash vs. Phulavati (2015), which held that the amended provision could not be retrospectively applied and the father and the daughter both need to be alive at the date of amendment for the provision to be applicable in the case. This idea was overruled much later recently by the landmark case of Vineeta Sharma vs. Rakesh Sharma (2020). Following the route was Arunachala Gounder vs. Ponnuswamy (2022), in which the Supreme Court held that the self-acquired property of a Hindu male dying intestate would devolve by inheritance and not succession and a daughter will be entitled to inherit such property as well as the coparcenary property, the condition of rights of women in terms of the property has been crystallised in a good direction.

Details of the case

Appellant: Prakash
Respondent: Phulavati
Court: Supreme Court of India
Citation: AIR 2016 SC 769
Bench: J. Adarsh Kumar Goel, J. Anil R. Dave
Date: 16.10.2015
Provisions involved: Section 6 of the Hindu Succession Act, 1956
Overruled by: Vineeta Sharma vs. Rakesh Sharma (2020)

Facts of the case

The respondent in this case, who was originally the plaintiff, had filed a case before the Additional Civil Judge (Senior Division) at Belgaum for the purpose of partition and separate possession of her share in the property, which she ascertained as 1/7th. The claim was made on properties scheduled A to G except for a particular property mentioned in Schedule A, numbered as CTS No. 3241, in which she claimed 1/28th share. As per the plaintiff, the suit properties consisted of properties which were acquired by her father, the late Yeshwant Upadhye through inheritance from his adoptive mother Smt. Sunanada Bai. According to her plea, due to her father’s death, the shares should devolve to her as per her claims.

The claim of the plaintiff-respondent was challenged on the ground that she could only get shares in her deceased father’s self-acquired property and a few other properties but not on his entire property. While the suit was pending, the Hindu Succession (Amendment) Act, 2005 came into effect and substituted Section 6 of the original Hindu Succession Act, 1956, to state that women would have the same coparcenary rights to the coparcenary property as do men. They shall attain coparcency by birth just like their male counterparts and will also be subject to equal liabilities with their male counterparts.

Owing to this amendment being passed and the changes in circumstances that it foresaw, the plaintiff-respondent amended her plaint and claimed her equal shares as per the newly amended law. The Trial Court, in its decree, granted 1/28th share to her in certain properties based on the notional partition created on the death of her father, and in certain properties, no share was given to her. In some properties, 1/7th share was also granted.

High Court’s decision

The respondent plaintiff, aggrieved by the decision of the Trial Court, sought an appeal to the Karnataka High Court, with the ground that as per the amendment, she is an equal coparcener to her father’s property and must receive her shares based on the newly amended law. She claimed that she was entitled to inherit equal shares in the coparcenary property like her brothers other than the individual claims in certain items of property.

The defendant-appellants contended that the plaintiff could not be made entitled to any share in the self-acquired property of the members of the joint family. They also contended that the claim to shares made by the plaintiff must be decided as per Section 6 of the Hindu Succession Act, 1956 as it was priorly construed and not through the amended version of it.

The defendant relied on the case of M. Prithviraj vs. Leelamma N (2007) and contended that if the father of the plaintiff died prior to the commencement of the amendment, the amended provisions would not apply to ascertain her shares in the property. Only the law which was applicable on the date of opening of succession will be applied while ascertaining the plaintiff’s share.

The High Court framed the issues in this case as: “Whether the plaintiff is entitled to shares in her father’s property as per the previous provision or the amended provision of Section 6 of the Hindu Succession Act, 1956?”

The High Court held that, even if the suits or proceedings were pending during the commencement of the amendment, the amended provisions would still apply. The law in this scenario is well established as per the judgement of the Supreme Court in the case of G. Sekar vs. Geetha and Ors. (2009), which held that any changes in law inevitably apply to pending proceedings, and such an application would not be treated as a retrospective application of law but simply the law as it stands on the day being made applicable.

The High Court stated that even if the case was instituted in the year of 1992, almost four years after the death of the father, the position of the parties still remained as members of the joint family. Therefore, as per the amended version of Section 6 of the Hindu Succession Act, 1956, a female member of a joint family becomes entitled to coparcenary property as she is deemed to be a coparcener by birth and has a right to the joint family property through birth. Female members also become equal sharers of the property as their male counterparts. Whenever a partition takes place, the coparceners will succeed in the property equally. This legal position was envisioned by Section 6 of the Hindu Succession Act, 1956 and the decision of the Supreme Court in the case of G. Sekar vs. Geetha and Ors. cannot be ignored and must be applied strictly to establish that female members are equal coparceners. The only exception to this principle and to the application of Section 6 of the Hindu Succession Act, 1956, is the situation where partition had been effectuated by a registered partition deed or by a decree of the court which had attained finality before 20.12.2004.

Considering that the instant case doesn’t fall under such an exception, it is fair to say that the respondent-plaintiff was entitled to 1/7th share in all items of properties in Schedule A to D and as per Schedule F, the first item was given up by the plaintiff.

Aggrieved by this decision, the defendant-appellants filed an appeal to the Supreme Court.

Legal issues involved

Whether the amendment to Section 6 of the Hindu Succession Act, 1956, relevant even after the death of the respondent’s father?
Whether the provisions of the amended legislation have a retrospective application?

Contentions of the appellants

The appellants argued that the respondent could only claim shares in the property as per the unamended provision of Section 6 of the Hindu Succession Act, 1956. They claim that the provision, as amended by the Hindu Succession (Amendment) Act, 2005, would not be applicable in this case to ascertain the rights of the plaintiff as it cannot have a retrospective effect. They contented that she cannot make any claims on the self-acquired properties of the joint family members, They argued that considering their father died on February 18, 1988, the respondent cannot be deemed to be a coparcener of the property as her father was not alive while the amendment was made in the year of 2005.

The appellants also contended that the explanation to Section 6(5), which states that partition refers to a partition executed by a registered deed or by a court’s decree, and the provisions of Section 6(1) must be harmoniously constructed to ascertain the real meaning of the provision and determine its applicability.

Contentions of the respondent

The respondent agreed with the view taken by the High Court. She contended that the amendment was brought about after considering the social nuance of women’s rights in India. The amendment sought to be beneficial for women by making them entitled to equal shares in coparcenary property and privileges, and therefore, it should have a retrospective effect. She contended that it is immaterial that her father has passed away before the commencement of the amendment. What is material is the fact that the coparcenary is obtained by birth, and by being born into the family, she is entitled to equal shares just like her male counterparts.

Understanding Section 6 of Hindu Succession Act, 1956

Section 6 of the Hindu Succession Act, 1956 was substituted by the Hindu Succession (Amendment) Act, 2005 to provide equal coparcenary rights to women and make them entitled to claims over shares in joint family property. This action was taken to eradicate years of discrimination and unequal treatment faced by women by making them coparceners with equal rights and liabilities, as do their male counterparts. Section 6 talks largely about the devolution of interest in the coparcenary property. It states that on and from the date of effect of the amendment, wherever a Hindu joint family is governed by the Mitakshara legal system, a daughter will attain coparcenary rights by birth and will have the rights equal to that of a son. It goes on to say that she shall have the same rights over the coparcenary property as if she had been a son. Along with the rights, a daughter shall also be subjected to the same liabilities with respect to the coparcenary property as does a son. The proviso to Section 6(1) states that the above principles would in no way affect or invalidate any disposition, alienation or partition of property which was effected before the 20th of December, 2004.

Section 6(2) states that a property which a female Hindu receives by virtue of other entitlements and claims over the shares in the joint family property in the way mentioned in Section 6(1) shall be her own property. It shall be regarded as a coparcenary ownership, and she can dispose of it at her own choice via testamentary disposition.

Section 6(3) states that whenever a Hindu dies after the commencement of the amendment, his interest in the property will devolve by testamentary or intestate succession and not through survivorship. The coparcenary property shall be deemed to have been divided as if a partition has taken place, and the partition would result in the same shares being allotted between daughter and son. The shares of a predeceased son or a pre-deceased daughter shall devolve upon their surviving children in the manner in which they would have received had they been alive.

Section 6(4) states that once the amendment has commenced, no court of law shall recognise the right to proceed against a son, grandson or great-grandson for the recovery of any debt taken by father, grandfather or great-grandfather merely on the ground that the survivors have a pious obligation to fulfil the debt under Hindu law. This provision shall not affect any debt taken before the commencement of the Hindu Succession (Amendment) Act, 2005.

Section 6(5) says that no principles contained in this entire provision shall be applicable on a partition which has taken effect before the 20th of December, 2004. The explanation to this section states that partition would mean any partition which has been effectuated through the execution of a deed registered under the Registration Act, 1908 or a partition made through the decree of a court. This gives rise to the concept of notional partition.

Notional partition

The idea of a Hindu joint family is unique to Hindu religion and society. It is a legally recognised creation of law. There are essentially two schools of Hindu law which govern the Hindu joint family and the rules of succession within it. The first one is the Dayabhaga school of law, and the second is the Mitakshara school of law. The Mitakshara legal system concerns itself largely with the male members of the Hindu joint family and, therefore, extends to sons, grandsons, great-grandsons, etc. A son, in the Mitakshara system, attains rights and interests in the ownership of the ancestral property of the joint family through birth. The male members come together to constitute another fictional legal entity known as coparcenary or co-ownership in the ancestral property of the Hindu joint family. In the Mitakshara system, property cannot be divided physically, but the shares are ascertained numerically. This system is highly traditional and orthodox and applies to major portions of India except Bengal and Assam.

Contrary to the Mitakshara system, the Dayabhaga system does not concern itself with a specific gender. It believes that after the death of the father, the right of the property will devolve to the children but not automatically as it does in the Mitakshara system. In the Dayabhaga system, the father has complete and absolute control over the ancestral property till his death. The property gets physically separated into specific portions, and then it is assigned to each coparcener. The Dayabhaga system is considered to be more liberal as compared to the Mitakshara system.

Notional partition largely finds its mention in the Mitakshara system of law. It is a fictional legal doctrine which states that when a person dies intestate, his shared interest shall devolve upon his/ her heirs by succession. After the 2005 Amendment, the rule regarding survivorship was completely abolished, and a coparcener who died after 2005, his shares were calculated through deemed or fictional partition. There was no actual or physical partition of land. This fiction partition was important as it was important to ascertain the interests of the successive members of the joint family property. For the devotion of shares by succession, it is necessary to determine the shares by notional partition.

Therefore, notional partition is a concept in which the family properties are not physically divided, but rather, it is presumed that just before the death, the coparcener claimed partition and therefore, shares of all the coparceners are determined in the same way as it is done in actual or physical partition.

In actual partition, all those who claim shares are alive and can claim partition during their lifetime, but in notional partition, the share gets ascertained after the death of a coparcener by presuming that he claimed partition right before his death. Therefore, the notional partition is an important legal fiction.

Judgement in Prakash vs. Phulavati (2015)

The Supreme Court outrightly stated that considering the multiple issues involved in the case, the court will only confine itself to the issue of the retrospective effect of the amended provision as different High Courts provided different opinions on this matter, and it is important to settle a clear understanding of the application of the provision to prevent any misapplication. The Apex Court believed that it was not important to go into the details of the facts and other issues recorded by the lower courts.

Retrospective application of the section

Referring to the contention made by the appellants, they supported the view that the 2005 amendment was not applicable to the claim of the respondent as her father, who was the coparcener in the property of the Hindu joint family, died prior to the commencement of the amendment. So when the amendment was made, she was not the daughter of a coparcener as her father was deceased. As per the Apex Court, this contention is made from the plain reading of the provisions of law, which state that in the absence of express or implied intention of a provision being retrospective, it will always be treated as prospective, and it shall affect the substantive rights prospectively but would not affect any vested rights as the vested rights cannot be taken away by a subsequent amendment in the absence of any express provisions or necessary intention of the law. Furthermore, the amending provision stated its applicability to be on and from the commencement of the Hindu Succession (Amendment) Act, 2005 i.e. 9th September 2005. The High Court was of the opinion that even if the provision was prospective in nature, it could certainly be applied to pending proceedings as it has been decided in previous decisions of the Apex Court.

The Supreme Court was of the opinion that the confusion arose because of the fact that, as per the established law, succession opens out on the date of the death of the coparcener and gets finalised even though partition by metes and bounds does not take place. It was noted that there exists a conflicting provision in the explanation to Section 6(5), and therefore, harmonious construction must be afforded to the said provision along with the explanation to properly implement it. It is not advisable to read an explanation in conflict with the main provision. The main provision of Section 6(1) entitled the daughter with the rights of a coparcener from the commencement of the Act and not any other time. The provision to Section 6(1) will only apply where the main provision of Section 6(5) applies.

Harmonious construction of provisions

It was submitted by the Supreme Court that that explanation to the provision is merely a rule of evidence and cannot be treated as a substantive provision that has the effect of determining the rights of the parties. As per the Apex Court, the date on which the daughter becomes the coparcener is the date of the commencement of the fact and not any other date. Partitions that were effected before 20th December 2004 are not affected by the provision. The explanation simply defines partition as a partition made by a registered deed or through a court decree. The effect of the explanation was not to invalidate or wipe out a legally valid partition prior to the said date but simply to place the burden of proof of the genuineness of such a partition on the party who alleges it. In any situation, statutory notional partition remains valid and effective as per the Supreme Court.

As per the Apex Court, the text of the amended provision clearly states that the right of being a coparcener is conferred on a daughter on and from the commencement of the Hindu Succession (Amendment) Act, 2005. Section 6(3) simply deals with the death after the amendment and is applicable only when the deceased dies after the amendment commenced. As per the simple language of the statute, there is no ground for a varied interpretation other than the one which is reflected in the text of the provision as it stands amended. An amendment of a substantive provision is always prospective unless a contrary intention to apply it retrospectively is provided either expressly or impliedly. In this case, there was neither any express nor implied provision for providing retrospective application to the amended provision. As per the Supreme Court, the necessity for a partition to be registered cannot have any application to statutory notional partition on the opening of succession as per the unamended provisions. As per the Supreme Court, the view of the High Court on this particular finding cannot be sustained in any way.

Applicability of social legislation

Moving further to other considerations, the Supreme Court states that even if the respondent argues that the amendment was a social legislation made to eradicate discrimination against women and counter unequal inheritance rights and, therefore, it should be given retrospective application, it cannot be sustained. Even social legislation does not have any retrospective application unless and until the statute expressly provides it. In this case, the legislation expresses that the amendment is to take effect on and from the commencement and only in situations where the death of the coparcener is after the commencement of the amendment.

Interpretation of provisions

As per the Apex Court, the interpretation of a provision always depends on the text and the context of the provision, and the general rule is that it must be read in an ordinary sense, given the plain language of the provision. In case any ambiguity arises, it is the duty of the court to give a reasonable meaning to the provision while dealing with its interpretation. In situations of apparent conflict between a provision and explanation, harmonious construction must be used, and meaning must be advanced based on the object and intention of the legislature. Based on the text and content, different rules of interpretation must be applied.

The general rule of interpretation is that a proviso is an exception to something which is contained in a provision. In simple words, generally, a proviso is viewed as an exception to the general rule contained in the provision. On the contrary, if the text, content and object are required, a different rule of interpretation can be applied. In the same way, an explanation usually elaborates the meanings of words contained in a provision, but in cases where the language and intention are so that it requires a different interpretation, such an interpretation can be applied. The role of interpretation is to outline the intention of the legislators.

Keeping this object in mind, the Apex Court stated that the proviso to Section 6(1) and sub-section (5) of Section 6 poses the intention to exclude all transactions referred within them which must have been effected prior to the 20th December 2004 i.e. the date on which the bill was introduced Therefore, the explanations cannot enable the reopening of partitions which have already been effected. The intention behind affording finality to all the decisions made prior to the 20th of December, 2004 is not to make the main provision apply retrospectively in any manner. The real intention is to see that through fake transactions, property available at the introduction of the bill must not be taken away. In no situation whatsoever the statutory notional partition effected even after 20th December 2004 could be covered by the explanation or the proviso in question.

Based on these principles, the Apex Court held that the rights under the amendment are applicable to living daughters of living coparceners as of 9th September 2005, and it is immaterial when the daughters are born. The act of disposing of or alienating a property or partition which took place before 20th December 2004 will remain unaffected as per the decision of the Supreme Court. The explanation shall only be applicable to all partitions affected after the mentioned date.

Based on the above observation, the Supreme Court set aside the order of the High Court and remanded the matter to the High Court for a fresh decision as per law.

As per the Supreme Court, the views it took were consistent with the previous decisions on similar matters and were not in conflict. Many such decisions dealt with situations where the change in law was held to be applicable to pending proceedings as per the intention of the legislature in a particular law. The Apex Court states that there is no dispute with the propositions laid down in the previous decisions The decisions cited by the respondent do not apply to the matter present in the case.

Relevant decisions referred to in the judgement

Following was the observation of the Apex Court regarding the cases cited by the respondent:

In the case of Ram Sarup vs. Munshi (1962), the question dealt with by the court involved matters of amendment to the Punjab Pre-emption Act, 1913 which restricted the right to pre-emption, but then Section 31 was introduced to the Act by virtue of the amendment This amendment was held to be retrospective and had retrospective operation because the language mentioned in the provision intended so.

In the case of Dayawati vs. Inderjit (1996), Section 6 of the Punjab Relief of Indebtedness Act, 1934 expressly provided for the retrospective application of the provision. Therefore, its language was interpreted and applied in such a manner. The language mentioned that the provisions would be applicable to all pending suits and, therefore, there couldn’t have been any other interpretation.

In the case of Lakshminarayan Guin vs. Niranjan Modak (1984), the question was related to the applicability of Section 13 of the West Bengal Premises Tenancy Act, 1956, which in its text expressly mentioned that no order could be passed by a court which contradicts the provisions of the new law and therefore such an express interpretation was taken while interpreting the pending suits.

In the case of Amarjit Kaur vs. Pritam Singh (1974), Section 3 of the Punjab Preemption (Repeal) Act, 1973, was dealt with by the court. The provision expressly mentioned that the court cannot pass any pre-emption decree after the commencement of the Act. Therefore, the express intention was not ignored and strictly construed. Similarly, the case of V.K. Surendra vs. V.K. Thimmaiah (2013) dealt with the presumption about the nature of a joint family property and the burden of proof being on the person claiming such property to be separate. This case laid down a decision in the form of a rule of evidence, which is not applicable in the instant matter.

Coming to the case of S. V Venkatarama Reddy vs. K. S Narayana Swamy (2011), the Supreme Court observed that the case dealt with the question of whether a preliminary decree can be passed determining the shares in a partition and can such shares be varied based on intervening events of the time before the final decree is passed. In the said case, a partition suit was filed by the son against his father and a preliminary decree was passed determining the shares of the parties but before the final decree, the amendment was made to the Hindu Succession Act, 1956 which allowed shares to the unmarried daughters. Therefore, the unmarried daughters applied to the court for the shares, and their plea was upheld. The judgement in no way dealt with the issue involved in the present matter. It was not a case wherein the coparcener’s whole daughter claimed the entitlement to shares was not alive on the date of commencement of the Act, nor was it a case where the shares of the parties were crystallised by the operation of law. Similar positions were taken in the case of Ganduri Koteshwaramma vs. Chakiri Yanadi (2011).

After analysing the decision relied upon by the respondent, the Supreme Court moved towards referring to the decisions relied upon by the appellant. In the case of Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum (1978), it was held that the deeming provisions referring to the partition of a property immediately before the death of the coparcener were to be given due and full effect in relation to settled principles of statutory interpretation of a provision, In the case of Vaishali Satish Ganorkar vs. Satish Kesharao Ganorkar (2012), the Bombay High Court held that the amendment made to the Hindu Succession Act, 1956 would not apply unless the daughter is born after the 2005 amendment came into force. The Supreme Court stood opposed to this view and stated that it was unable to find any reason to uphold that the birth of a daughter post the commencement of the amendment was a valid precondition for the application of the provision What is material is the fact that both the father and the daughter should be alive on the date of the amendment.

On an unrelated note, part II of the judgement discussed the imminent issue of gender discrimination faced by Muslim women. Even if the issue was not directly involved in the appeal, it was raised by some counsels. The Apex Court discussed the arbitrary divorce practices and bigamy faced by Muslim women despite constitutional safeguards of gender equality. The Apex Court sought this matter to be discussed separately in a separate Public Interest Litigation and issued notice to the relevant authorities.

Analysis of Prakash vs. Phulavati (2015)

Based on the various matters of fact and relying upon all the cases cited by both parties, the Apex Court highlighted that the appellant’s contentions regarding the date of the death of the father of the respondent being much before the amendment must be ascertained as per the plain language of the provisions. In simpler terms, considering that the father of the respondent died much before the amendment was brought into effect, she cannot claim to be a coparcener as both the father and the daughter must be alive on the date of the amendment for the amended provisions to be applicable on the case. The judgement took a very narrow approach regarding the interpretation of the statutory provisions. The court decided that unless and until a provision expressly or impliedly mentions the possibility of retrospective application, it cannot be said to be applicable retrospectively. The general rule that every amendment is prospective in nature unless and until it has been declared expressly or impliedly to be retrospective was upheld in this case. As Section 6(3) stated, the amended provision will only be applicable to Hindus who die after the Act takes effect. It leaves no space for any interpretation beyond the textual analysis of the provision.

The Apex Court also negated the highly significant argument raised by the respondent that the legislation was a social legislation intended to cure the discrimination faced by women in the field of property or inheritance rights. The Apex Court stated that even social legislations are prospective in nature unless expressly or impliedly declared to be retrospective. The Apex Court also pointed out that while interpreting a statute, its wording and context should be heavily relied upon, and if there is any conflict in the text, the most sensible interpretation must be upheld. The most sensible interpretation is the one which takes the object and the intention of the legislation forward. In this particular case, the partitions effected before 20th December 2004 will be unaffected by the amendment. Even though the judgement goes into minute details in terms of analysis and interpretation and various precedents, it still had major loopholes, which were cured later in the decision of Vineeta Sharma vs. Rakesh Sharma (2020), which overruled the decision of Prakash vs. Phulavati (2015) and many other similar decisions which misinterpreted the amendment and its application and affected the fulfilment of the intention of the legislature to create equality in terms of rights of women to be equal coparceners and claim equal shares in the property. Even though this judgement might not seem progressive in its approach, it surely was highly technical owing to its reference to various legal principles, which shall serve as a guiding light in other decisions.

Other related decisions

The decision given in the case of Prakash vs. Phulavati (2015) has been mentioned in other decisions as well. The most prominent one is the decision of Danamma Alias Suman Surpur and Anr vs. Amar and Ors (2018).

Danamma Alias Suman Surpur and Anr vs. Amar and Ors. (2018)

In this instant case, an appeal was preferred from the decision of the High Court. The decision was one which upheld the decision of the Trial Court that denied giving any coparcenary rights to the appellants who were born prior to the commencement of the 2005 Amendment Act. The factual matrix of the case states that Mr Gurulingappa Savadi is the deceased who passed away in the year 2001. He left behind a widow and four children (two sons and two daughters). One of the daughters is Danamma, the appellant in this case. The conflict arose when, in 2002, Amar, the son of the deceased, filed a suit for partition and for separate possession of the Hindu joint family coparcenary property. He denied any shares to the daughters on the ground that they were born prior to the Hindu Succession Act, 1956 and had received sufficient dowry during their marriages which can be viewed as relinquishment of shares in the coparcenary property. The Trial Court decided that the daughters are not coparceners as they were born before the commencement of the Hindu Succession Act, 1956 and also did not uphold the argument regarding dowry being equated to relinquishment of shares as it is a regressive thought, which has ill effects on the society. The appellants appealed to the High Court which gave its decision in the year 2007, which held that the amendment was passed during the pendency of the suit and therefore, it crystalised the rights of the daughters as coparceners and made them equal to the sons in terms of inheritance to the property. The matter went before the Supreme Court of India. The Apex Court held that Section 6 of the amended Hindu Succession Act, 1956 should be interpreted in a liberal manner. It must be done so to take forward the intention of the legislature to make an equal ground for men and women in terms of the right to ancestral property. Founded upon this principle, the Apex Court decided that the amended provisions are applicable to all daughters, irrespective of them being born before or after the enactment of the law. The confusion regarding the retrospective or prospective application of Section 6 arose in the case of Prakash vs. Phulavati (2015), in which the Supreme Court made it clear that all amendments made to the substantive provisions of the law are deemed to be prospective unless and until a contrary intention is expressly or impliedly made by the statute. In the case of Danamma vs. Amar (2018), the Supreme Court adhered to the literal interpretation of the provision and held that since the daughters were alive during the commencement of the amendment, they are coparceners and have equal shares as sons. The Apex Court finally decided that Section 6(1) must be prospectively applied, and other subsections might have retrospective application. This was concluded based on a harmonious interpretation of the provisions and the explanations and the intentions of the lawmakers. The Apex Court clarified that it is immaterial whether the daughter is born before the commencement of the Act. The daughter must be alive during or after the commencement of the Act to be a coparcener. This decision led to a lot of confusion and ambiguities.

Current position of Section 6

Due to the multiple ambiguities regarding the interpretation of Section 6, the Apex Court was approached to give a final interpretation in the case of Vineeta Sharma vs. Rakesh Sharma (2020), which crystallised the rights of daughters and overruled previous decisions which were ambiguous.

Vineeta Sharma vs. Rakesh Sharma (2020)

In this case, Shri Dev Dutt Sharma was the deceased coparcener who left behind one wife, one daughter and three sons. The deceased passed away on the 11th of December, 1999. One of his sons also passed away on the 1st of July 2001 and was unmarried during his death. The daughter, Vineeta Sharma, claimed for 1/4th share in the coparcenary property. Her claim was denied by other members as they argued that considering her father passed away in 1999, which was before the commencement of the amendment of 2005, she cannot claim any shares in the property. They also claimed that, after her marriage, she ceased to be a member of the joint family. Vineeta Sharma filed a suit against her brothers, Rakesh Sharma and Satyendra Sharma and their mother. She claimed coparcenary rights in the property based on her birth into the family. The Delhi High Court stated that Section 6 of the Hindu Succession (Amendment) Act, 2005, will not be applicable to this case as her father passed away before the 9th September 2005, when the amendment commenced. This decision was based on the principles set forth by Prakash vs. Phulavati (2015), which held that both the father and daughter must be alive during the commencement of the amendment of 2005 for the principles to be applicable in the case. The appellant, Vineeta Sharma, aggrieved by this decision, filed an appeal in the Supreme Court of India.

Shri Tushar Mehta, appearing on behalf of the Union of India argued that the Hindu Succession (Amendment) Act. 2005 is retroactive in nature and not retrospective in nature. The rights of the coparcenary, which are conferred on a daughter, did not hinder the rights that were crystallised by the partition effected before 20th December 2004. Section 6 of the Act does not deem the daughter to be the daughter of a living coparcener, and therefore, the coparcener need not be alive on 9th September 2005 to provide applicability to the provisions of this Act.

Learned Senior Counsel Shri R. Venkataramani was appointed as the amicus curiae in this case. He argued that there is no conflict between the decisions taken in the Phulavati case and the case of Danamma Surpur vs. Amar (2018), as both these cases held that the amendment cannot have a retrospective effect and therefore, Section 6, as well as the amended Act, will always have prospective effect. As per the learned counsel, there must be a living coparcener to devolve the coparcenary interest. If coparcenary interests are given to daughters by birth before 2005, it will lead to a high amount of uncertainty and severely affect the workings of the law.

The next set of arguments was advanced by learned Senior Counsel Shri V.V.S. Rao, who was also appointed as an amicus curiae. He argued that the daughters who are born before and after 2005 should be regarded as coparceners. The daughter who has been regarded as a coparcener from the 9th September 2005, will only have access to the coparcenary right and interest from 9th September 2005 and not before that. The next point of argument was that the registration of the partition deed is not mandatory but wherever oral partition is effected, there must be reasonable and substantial evidentiary resources to validate such partition. The final argument was that the daughter should have been alive on the date of amendment and there should have been a living coparcener from whom the coparcenary interests devolved on her.

The next set of arguments was put forth by learned counsel Shri Sridhar Potaraj, representing the respondents. He argued that the amended Act must be given prospective applicability as is the intention of the legislators and is clear from the plain text of the provisions. He further contended that the daughter of a coparcener clearly entails and must be construed as the daughter of a living coparcener and that she attains the status of coparcener on and from the commencement of the Act.

The final set of arguments was put forth by the learned counsel Shri Sameer Srivastava who argued that imposing the necessity of having both the coparcener and the daughter alive on the date of amendment defeats the entire purpose of the amendment which was to bring daughters and sons on an equal footing in matters of inheritance and claims over property. Coparcenary rights are given to daughters through birth and simply their birth is enough to devolve interest in the coparcenary property.

Considering all these arguments, the Supreme Court framed the following issues:

Can the amended Section 6 of the Hindu Succession Act, 1956 amended by the Hindu Succession (Amendment) Act be applied retrospectively?
Is it necessary that the coparcener(father) remains alive on 9th September 2005?
Can a daughter born before 9th September 2005 claim the rights to coparcenary property?

Based on these legal issues, the Supreme Court put forth its decision. The judgement was authored by J. Arun Mishra. It primarily stated that daughters who are born before or after the amendment shall be deemed to be coparceners in the ancestral property. The decision overruled the decision of Prakash vs. Phulavati (2015) and stated that it is not material that a predecessor coparcener must be alive to form a coparcenary or to become a coparcener. What is material is the birth of a coparcener within the degree of the coparcenary and its extent. In the amended provision of Section 6, the term “daughter of a living coparcener” is not used anywhere. Rather, under Section 6 (1)(a), rights are given to daughters by birth, and such daughters have the same rights and are subject to the same liabilities in relation to the coparcener. The provision also states that any reference to a coparcenary shall include the reference to the daughter of a coparcener. Therefore, upon a plain reading of Section 6 (1), it is clear that there is no space to establish the principle that a coparcener through whom the daughter claims interest should be a living coparcener on the date of the amendment.

The Apex Court also partly overruled the decision of Danamma Surpur vs. Amar (2018) and observed that the Apex Court in Danamma granted equal rights to the daughter and held that certain observations were valid but the Apex Court couldn’t seem to agree with those parts of the decision which upheld the ruling of Prakash vs. Phulavati, and other decisions regarding statutory partitions. The Apex Court observed that there is a clear conflict of opinion in the decisions of Phulavati and Danamma when it comes to the matter of the living daughter of a living coparcener. In the latter case, the issue regarding the living daughter of a living coparcener was not specifically dealt with.

Furthermore, the Apex Court held that Section 6 of the Amended Act can be applied retroactively. It stated that the rights to coparcenary are bestowed upon a daughter from 9th September 2005, but it gets created from the birth of the daughter, and no other factor like a living coparcener is important for such devolution of interest. It also clarified that the Amendment Act, in its nature, is not an amendment but a mere substitution. The Apex Court held that the coparcener rights do not pass from a living coparcener to a living daughter. It rather passes from a father to a daughter. It observed that the Hindu joint family is an unobstructed heritage in which the right to partition is absolute and is created by simply the birth of a daughter. It is not at all relevant if the father of the daughter claiming coparcener rights is alive on the date of the commencement of the amendment or not. The Apex Court observed that the death of the daughter does not cease her rights to claim coparcenary rights in the property. Her rights pass on to her successive heirs or her nominee. The Apex Court stated that even if the notional partition had been effected before the 9th of September 2005, it doesn’t deprive the rights of a daughter to claim shares in the Hindu joint family property. Notional partition simply ascertains the rights of the parties and cannot be placed on the same footing as that of actual physical partition which finally divides the property and shares. The coparcenary property doesn’t cease to exist after notional partition but after actual partition. The Apex Court also ordered other courts to dispose of matters relating to such legal issues within three months of this decision.

Coming to the question of decrees, the Apex Court observed that a preliminary decree cannot be equated with a final decree as a preliminary decree doesn’t finally decide the rights of the parties through metes and bounds. It is the responsibility of the Court to consider supervening circumstances like amendments arising in the time between the passage of the preliminary decree and the final decree. If any such supervening circumstances arise having the potential of changing the final decree, then the Court is duty bound to give due consideration to such amendments and incorporate them within its decision in the final decree. Therefore, even when a preliminary decree is passed in a suit, a daughter can claim her coparcenary rights in the property. In terms of partition, the Court decided that a partition must be duly registered if effectuated after 20th December 2004, and any partition which is created through the decree of a court must be done through a final decree to be treated as effective and final. This decision was given to prevent fake partitions with an aim to attack the rights of the daughter to coparcenary property. Oral partitions can be given validity in certain circumstances, but the burden of proof of the genuineness of the oral partition falls on the defendant. This judgement finally overruled the previous impediments to women’s access to claims over coparcenary property and is therefore extremely progressive in its purview.

Arunachala Gounder vs. Ponnuswamy (2022)

In this case, the Supreme Court held that the self-acquired property of a Hindu male who dies without making testamentary disposition of his property will devolve by way of inheritance and not through succession. This simply means that the daughter will be entitled to inherit the self-acquired property of their deceased father and shall also have equal claim as sons over coparcenary or joint family property. It was also held that when a woman died intestate, the ancestral property which devolved on her from her father would be bestowed on her father’s heirs, and the property which devolved on her from her husband would be given to her husband’s heir if she dies issueless. This position taken by the Supreme Court after the decision of Vineeta Sharma vs. Rakesh Sharma (2020) further crystallised the rights of women over property and inheritance and eradicated any form of gender discrimination.

Conclusion

The journey of the decision of the legal issue regarding the retrospective application of Section 6 of the Hindu Succession Act is comprehensive and tumultuous. With many courts having differing opinions on one particular matter, it was necessary for the Apex Court to settle it once and for all like it did in the case of Vineta Sharma vs. Rakesh Sharma (2023). The decision of Prakash vs. Phulavati (2015), even though it was later overruled, formed a significant stage in the process of ascertainment of the important legal issue. Therefore, it is important to analyse the decision of the case to understand the process and rationale behind the final decision of the Apex Court on the substantial question of law.

Frequently Asked Questions (FAQs)

What is the final ruling of the Supreme Court regarding the material nature of a living father on the date of commencement of the Amendment Act 2005?

The final decision of the Supreme Court regarding this legal issue is that it is immaterial if the father was alive on the date of commencement of the Amendment Act of 2005 because the daughter becomes a coparcenary by birth.

Can Section 6 of the Hindu Succession Act 1956 be applied retrospectively?

While dealing with the question of whether the Section can apply retrospectively or prospectively, the Supreme Court noted that the Section is retroactive in nature as the daughter attains coparcenary by birth, and her claims do not affect any transactions done before 20th December 2004.

Can a court change the preliminary decree regarding partition in a final decree?

Yes. The court is duty-bound to consider supervening circumstances like amendments arising between the preliminary decree and the final decree. It must either amend the preliminary decree, issue a new preliminary decree or incorporate the changes in the final decree.

What is the difference between a notional and an actual partition?

Notional partition merely ascertains the shares of the coparceners or the parties and has no physical effect. Therefore it is deemed to be a legal fiction but actual partition is final as it actually and physically divides a property. Notional partition is affected by the death or birth of a new coparcener. Actual partition remains unchanged by such events.

References

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The Dissolution of Muslim Marriages Act, 1939

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August 3, 2024

This article is written by Titas Biswas. It deals with an in-depth analysis of the statutory act ‘The Dissolution of Muslim Marriages Act, 1939’ enacted to safeguard the interests of Muslim women seeking divorce. The author intends to delve into different notions of the act in this article, specifying the background and historical context, objectives, crucial provisions of the act, application of the act, and other important aspects.

Table of Contents

Introduction

Over time, Muslim women have been in a cascade of discriminatory events. From being forced into undesirable marriages to being denied the basic rights in their marriages, they have been deprived of their entitlements. This led to the emergence of a legislative body aimed at changing the course of unfairness towards Muslim women, which is called ‘The Dissolution of Muslim Marriages Act, 1939’ (hereinafter referred to as the Act).

Since its inception in British India, the rights of Muslim women have been upheld and maintained. This Act structures provisions regarding grounds of divorce, consequences of apostasy, serving notice amidst the disappearance of the husband and dower.

The Dissolution of Muslim Marriages Bill was passed on March 17, 1939, after being introduced in the Parliament by Qazi Muhammad Ahmed Kazim on April 17, 1936. The Act underscored uniformity among Muslim women as it was applicable irrespective of any Mohammedan sect or school of thought.

The Act of 1939 is a codified version of faskh, one of the methods used to dissolve marriage under Muslim Law in India, which shall be discussed later in this article.

Background and historical context

Prior to 1939, Muslim women faced unbearable hardships and unattainable miseries in marriages where their husbands abandoned them, leaving them unprovided for, married another woman and compromised their basic maintenance or persistently persecuted them. In light of these issues, the need to legislate an Act with provisions addressing these grounds arose.

To study the evolution of laws and approaches used to dissolve a Muslim marriage, one must consider the timelines. Following is a detailed discussion.

Pre-Islamic era

In the pre-Islamic era, a husband had unlimited and arbitrary power to dissolve his marriage. He could divorce his wife according to his wishes, resume cohabitation and would divorce again. This unending cycle led ultimately to the exploitation of such women. There was no restraint on this barbaric and injudicious act by the husband; a mere indication from him that the marital bond was dissolved was sufficient to declare such marriage dissolved.

Following are the exhaustive ways in this era that dissolved a marriage:

Talaq (expressed announcement of repudiation of marriage by the husband.)
Ila (An oath of not performing sexual intercourse for at least four months by the husband.)
Zihar (A comparison of the wife drawn by the husband with a woman within his prohibited relationship, e.g., his sister or mother.)
Khula, which was gradually in practice at the onset of the Islamic era. (a wife seeking divorce when her husband refuses to do so.)

Inception of Islamic era

Muslim Law includes two major sects, that is, Sunni Law and Shia Law. These two sects further categorise different schools of thought. Where under the Sunni sect, laws are governed by Hanafi, Maliki, Shafi and Hanbali, the Shia Sect follows Imami, Ismaili and Zaidi. The majority of Muslims in India are governed by the schools under Sunni Law as their provisions as to personal laws are pre-determined and prevalent.

The most prevalent practices of divorce under Muslim Law in this era were;

Talaq (By the husband)

This form of divorce was only optionable to the husband, which was further classified into;

Talaq-ul-Sunnat is a revocable form of talaq and is effective according to the instructions given by Prophet Mohammad. This form of talaq is further divided into Ahsan and Hasan. ‘Ahsan’ is considered to be the best or proper form of talaq as it allows the husband to divorce his wife during the period of ‘tuhr’, which is when a woman is not menstruating. The husband pronounces talaq, which is revocable after his wife observes the iddat period. Such talaq is revocable at the instance of sexual intercourse by the husband and wife or declaration of repudiation of divorce by the husband and is considered to be the ideal form of talaq. ‘Hasan’, on the other hand, prescribes that a husband is allowed to divorce his wife by announcing ‘talaq’ three successive times during the period of ‘tuhr’ and may repudiate by performing sexual intercourse with his wife. The husband may again pronounce talaq, the second time during the ‘tuhr’ period and repudiate such divorce by performing sexual intercourse or declaration. The Shariah law restricts a husband to revoke his marriage after the third and final pronouncement of talaq.

Talaq-ul-Biddat, under which a husband may pronounce talaq three successive times in a single sitting, commonly referred to as ‘Triple Talaq’, which furthermore is divided into Ila and Zihar. ‘Ila’ allows the husband to take a pledge not to perform sexual intercourse with his wife. At the completion of observing the iddat period, the divorce becomes irrevocable. Under ‘Zihar’, the husband draws a comparison between his wife and a woman who falls under a prohibited degree with him. Such comparison may lead the wife to refuse to perform sexual intercourse. The period of observation under this form is four months, on whose expiration such marriage shall be considered dissolved.

Khula & Talaq-e-Tafweez (By the wife)

These forms of divorce were granted solely to the wife while allowing her to repudiate her marriage under certain circumstances, which were generally husband-centric.

Khula, meaning ‘redemption’, has originated from the word ‘khalun’, which means ‘extracting out of one thing from another’. This form of divorce moves from the wife, which is equivalent to Talaq. However, adequate and satisfactory reasons must be stated for the same, including non-maintenance by her husband or irretrievable breakdown of marriage. Under this form of divorce, the wife consents to offer compensation and relinquish her dower (mahr) and other such rights in order to obtain divorce from her husband.

Talaq-e-Tafweez, meaning ‘Delegated Divorce’’, allows the husband to delegate the authority to his wife in order to seek divorce from him. This delegation of authority may be given at the time of marriage or later in the marital tie. This form of divorce is structured upon contractual duties and obligations of both parties to the marriage whose violation may enable the wife to exercise the authority delegated to her. Such a form of divorce has been alternatively named ‘Contractual Divorce’ given its nature and procedure.

Khyar-ul-Bulugh (Repudiation of marriage)

This idea of divorce is also known as the repudiation of marriage by the wife where she chooses to withdraw herself from such marital ties. This form of divorce is optionable only when the marriage of a minor is performed by her guardians. Under this form of divorce, she is permitted to exercise the privilege within three years of attaining the age of fifteen. She is deemed to waive her right after the expiration of the time limit prescribed, which is from the age of 15 years to attaining the age of majority or at the instance where she performs her marital consummation despite being aware of her rights.

Mubarat (Mutual Agreement)

As is depicted by the name, Mubarat allows both husband and wife to free themselves from their nuptial tie. This form of divorce is based on the mutual aversion of both parties towards each other. The principle basis of this kind of divorce is to allow the husband and wife to separate without any claims against each other and through mutual agreement. Both major sects under Muslim law, namely Shia and Sunni, incorporate such practice of divorce.

Lian and Faskh (Judicial Pronouncement)

In Lian, a wife seeks divorce from her husband when he has falsely accused her of adultery or unchastity. The wife can sue her husband, claiming such allegations to be false and treating such allegations as grounds for divorce.

Faskh denotes the annulment of marriage initiated by the wife, where the authority to annul is conferred upon a Qazi or a judge. The origin of this principle is anchored from the teachings of the Quran where it is depicted that it is the right of a discriminated and afflicted wife to seek divorce on the grounds of being unprovided, tortured, neglected, deserted and some others. According to Fayzee, ‘faskh’ is a derivation of Islamic injunctions encapsulated by prophets and asserted by Ameer Ali, who believes that the pronouncement of dissolution of a Muslim Marriage by a Qazi is founded on the words by the Prophet, “If a women be prejudiced by a marriage, let it be broken off”.

This Act is a codified adaptation of this form of divorce, allowing the wife to seek divorce on several grounds. This article contains key provisions of the Act as well as its objectives and application.

Objectives of the Act

History speaks of violence, barbaric behaviour and unfair practices against Muslim women in marriage. Before 1939, the governance of the personal laws under Muslim law was divided among various schools. In India, the principles of marriage divorce were governed by the Hanafi School, but there were several criticisms regarding the governance of divorce under the Hanafi School. Hanafi Jurists suggested applying the laws laid by Maliki, Shafi’i or Hanabali in cases where Hanafi laws caused hardships to Muslim women while determining the sanctity of divorce.

Another prime objective of introducing the Act was that marriages of Muslim women dissolved ipso facto on renunciation of Islamic religion, formally called ‘apostasy’. Such erroneous views under Muslim law became a prevalent precedent while deciding cases regarding divorce. The notion that a woman’s marriage would automatically dissolve upon renouncing her religion was arbitrary on the face of law and humanity.

This recognition led the jurists to apply Maliki laws, which provided a wide slate of grounds for divorce for an aggrieved wife. Such grounds were borrowed from the Maliki Law by the doctrine of ‘Takhayyur’, which denotes the ‘Doctrine of Eclectic Choice’. The application of these laws became widespread, formulating them as uncodified yet enforceable laws. A synchronised compilation of Maliki Laws can be found in the book ‘Heelatun Najeza,’ authored and published by Maulana Ashraf Ali Sahib. This book offers an exhaustive study of laws under Maliki Law suitable for application in India and recognised by various legal authors, scholars, and jurists. Recently, the Supreme Court of India referenced this book in deciding the ‘Triple Talaq Case’ under the title Shayara Bano vs. Union of India (2017).

Key provisions of The Dissolution of Muslim Marriages Act, 1939

There are six sections under this Act, each of which is equally important. However, Section 2 of the Act asserts the grounds for decree for dissolution of marriage. The significance of this provision is reflected through its application in the courts of India. Since its inception, aggrieved Muslim wives received their due justice through this provision that outlines several grounds protecting the interests of the wife. In addition to the grounds provided by this Act, it encompasses the phrase “a woman married under Muslim law”, which provides for the inclusion of those women who got married under Muslim law but converted her religion.

Section 2 of this Act states nine grounds of divorce on which a Muslim wife can seek divorce from her husband. These grounds have proven to be inexplicably significant and practical, focusing on the miseries and harassment that an aggrieved wife suffers. Other provisions of this Act revolve around Section 2, which serves as its consequential provisions.
While exercising the remedy given under Section 2 (i), a wife is compelled to serve notice upon the heirs of the husband if his whereabouts are unknown. This is provided under Section 3 of the Act.
Section 4 of this Act came into existence addressing the need to eradicate unfair treatment against Muslim wives, providing that the marriage of a Muslim woman would not dissolve ipso facto upon her conversion of faith. Earlier, the conversion of a wife to another faith would automatically dissolve her marriage, resulting in unfair treatment.
Section 5 of this Act provides that on the dissolution of marriage of a Muslim woman, her right to dower shall not be affected in any way.

Application of the Act

The application of this Act extends to any woman married under Muslim law in any part of India. The scope of its applicability is quite broad in its sense, as it includes a Muslim woman belonging to any Sect or School under Muslim law. A woman who has converted her faith to a religion other than Islam may also exercise the rights and remedies given under this Act.

However, the Renoncants of the Union Territory of Pondicherry are excluded from the scope of application of this Act, as is governed by The Pondicherry (Extension of Laws) Act, 1968 Act.

Grounds for decree of dissolution of marriage (Section 2)

Section 2 of the Act prescribes nine grounds on which a wife may seek divorce against her husband from the Court. These nine grounds are inspired by the Maliki Laws, which allow a wife to seek divorce and are wife-centric, unlike pre-Islamic laws of divorce. All the grounds under this provision are discussed in detail hereafter:

Disappearance of the husband – Section 2 (i)

This provision is borrowed from the principles applied in the Maliki School of Law. Under this provision, a wife may seek a decree of divorce from the court on the ground of her husband being missing for four years. Where the Maliki School of Law prescribes a duration of four years, the Hanafi and Shafi Schools of Law prescribe a longer duration. This extended waiting period leads to frustration and false anticipation, leaving the wife harassed and unprovided for over the years. This provision has been proven to be more liberal than the analogous provisions under The Hindu Marriage Act, 1955 and Indian Evidence Act, 1872 where the duration for the presumption of death of a missing person is seven years.

However, the decree of divorce shall not be operative for the next six months, being treated as an observing period. The husband may, by himself or through an authorised agent, appear in the court and claim that he would perform his conjugal obligations. The Court, on being satisfied shall set aside the decree. [Proviso (b) of Section 2]

Non-maintenance by the husband – Section 2 (ii)

Clause (ii) of Section 2 of the Act provides that if a husband is unable to maintain his wife for at least two years due to any reason, the wife is entitled to seek divorce in Court. Even though the provision does not state it explicitly, it is immaterial if the husband is unable or unwilling to provide maintenance. In Satagunj vs. Rahmat AIR 1946 Sind 48, it was held that the husband could not use his illness, poverty, insolvency or any other reason as an excuse to avoid maintaining his wife. However, the disobedience or any form of denial to perform marital obligations by the wife may nullify her claim of maintenance from her husband, as was held in Kunju Ismail vs. Md. Kedeja (1959).

Apart from being a ground for divorce, a wife is entitled to maintenance and can even sue her husband under section 125 of The Code of Criminal Procedure, 1973. This provision allows both a wedded and divorced wife to claim maintenance from her husband or ex-husband, where she establishes before the Court that she is unable to maintain herself and is dependent upon her husband or ex-husband. According to the necessity and circumstances, the Court may even order an interim maintenance under this provision.

Convicted for an offence punishable with seven years or upwards – Section 2 (iii)

This clause of the Act provides that if a husband is awarded with a punishment of seven years or more, his wife may seek a decree of divorce on such grounds. Provided that such decree shall not be passed before the final judgement against the husband and the husband must be convicted under the offence. [proviso (a) of Section 2]

Failure of performing marital obligations by the husband – Section 2 (iv)

Failure by the husband to perform marital obligation towards his wife for a period of three years without any reasonable cause forms a ground under this clause for the wife to seek a decree of divorce. The specifics of marital obligations vary in different cases based on the facts and circumstances of each case. An example of such a situation is the desertion of the wife by the husband without any reasonable cause, as held by the court in Veeran Sayvu Ravuthar vs. Beevathumma (2002). Another example is a husband depriving his wife of conjugal rights. When a husband deprives his wife of her conjugal rights, whether by not maintaining or treating her inappropriately and not respecting her, it constitutes a failure of marital obligations.

Impotence of the husband – Section 2 (v)

This ground of divorce has been prevalent and in application before the inception of this Act, and which has also been incorporated as a ground in this Act. Under this provision, a wife may seek a decree of divorce from the Court if she claims her husband is impotent. A decree of divorce shall be granted if the husband’s impotence subsisted when the marriage was solemnised and is in continuance while filing the suit for a decree of divorce. Such impotence must be permanent and non-curable, though the husband can contest this by filing an application praying to prove his potency. According to Proviso (c) of this section, the Court, upon hearing the prayer, shall grant the husband one year for that purpose and shall not grant a decree of divorce if the husband establishes his potency. It was also held in the case of Mohd. Ibrahim vs. Mst. Altafan AIR (1925) that consummation of marriage may nullify the claim under this ground.

Insanity and Illness of the Husband – Section 2 (vi)

The Act provides insanity and illness of the husband as a ground of divorce for the wife. A wife may seek divorce from the Court if her husband has been suffering from insanity for two years or more. Diseases of the husband as grounds include virulent venereal disease. Before the amendment in 2019, leprosy was also included as a ground for divorce under this provision. There hasn’t been a prescribed limitation period under this provision.

In order to interpret insanity, the Courts earlier have referred to provisions mentioned under Section 27(1)(e) of the Special Marriage Act, 1954, which renders a husband insane in a situation where he has been of unsound mind permanently and has been suffering from a mental disorder intermittently or in a continuous manner. The Courts have also referred to provisions under Section 13 (1)(iii) of the Hindu Marriage Act, 1955, where the interpretation of the term ‘insanity’ is quite similar to the provision under the Special Marriage Act.

Option of Puberty (Khyar -ul-Bulugh) – Section 2 (vii)

This ground allows the wife to repudiate her voidable marriage at her option before attaining the age of eighteen years, formally known as ‘Khyar-e-Bulugh’. When a girl has been given in a marriage by her father or another authoritative guardian before she has attained the age of fifteen years, she has the option to annul that marriage before attaining the age of eighteen years. She may exercise this option provided the following conditions are fulfilled:

There has been no cohabitation between the wife and her husband.
The marriage took place before the wife attained the age of fifteen years.
The wife exercised the option of puberty before or upon attaining the age of eighteen years.

However, to repudiate the marriage, the wife must initiate a suit for dissolution of marriage, and a marriage may not be dissolved on the grounds provided by the Act if the suit is initiated by the husband. This stance was held in the case of Shaib Ali Biswas vs. Jinnatan Nahar And Ors. (1960), where the Court reasoned its dismissal of the decision by the Appellate Court by stating that the Act, which allows for such repudiation, does not apply to suits initiated by husbands.

In the case of Khatiza Tul Qubra vs. Iqbal Mohd (2009), the Court held that it is not mandatory for the wife to seek a decree of divorce from the Court to exercise the option of puberty. Mere oral evidence of such revocation by the wife suffices to repudiate the marriage.

Cruelty by the Husband – Section 2 (viii)

The long due ground of ‘cruelty by the husband’ has been added as one of the grounds for dissolution of a Muslim marriage where a wife may seek a decree of divorce on six grounds sub-categorized under this clause.

Section 2 (viii) (a)

A wife, under this clause, may seek a decree of divorce from the court on an account where she has been assaulted, mentally or physically tortured and has been ill-treated. The Court upon being satisfied by the allegations brought by the wife by adducing evidence and examining facts and circumstances, shall pass a decree of divorce on the ground of cruelty.

In the case of Sirajmohmedkhan Janmohamadkhan vs. Hafizunnisa Yasinkhan & Anr (1981), the Court examined the circumstances to conclude that where the wife has a reasonable apprehension of being harmed by her husband and in-laws on a stubborn demand of dowry by them, she has the right to live separately from her husband, provided that she must prove her allegations with reasonable evidence.

Section 2 (viii) (b)

If a husband associates himself with a woman whose reputation is looked down upon in society and who leads a scandalous life, his wife may pray to the court to seek a decree of divorce from him under this clause.

Section 2 (viii) (c)

A wife may pray for a decree of divorce from the Court under this clause if she falls into a compelling situation with her husband where he forces her to indulge in immoral activities and lead an unethical life. This may include the husband forcing his wife to perform sexual intercourse outside their marriage, which would bring him pecuniary benefits or for the sake of his entertainment. A wife may take the help of this provision if her husband coerced her into committing a criminal offence.

Section 2 (viii) (d)

A husband forcibly and illegally disposing of his wife’s property or preventing her from exercising her legal rights would make grounds for divorce under this clause. In a circumstance where the husband unethically disposes of his wife’s property, taking due advantage of their fiduciary relationship, the wife may seek assistance from the court under this clause.

Section 2 (viii) (e)

If a husband obstructs his wife from performing her religious duties in any way or prevents her from doing so by deviating her from religious practices, the wife may seek a decree of divorce from the Court under this clause. A wife has a right to profess and practise her religion in an individual manner, and any grave and persistent obstruction may enable her to prefer this clause as a ground for divorce.

Section 2 (viii) (f)

A wife may pray to the Court under this clause to obtain a decree of divorce if her husband remarries and subsequently fails to do justice between them, following the instructions of Quran. The Quran, in its Chapter Surah An-nisa, verse 3, instructs a man to marry more than one woman only if he is able to do justice between them and treat them equally with their due respect.

In the case of Itwari vs. Smt. Asghari And Ors. (1959), it was observed that it amounts to cruelty when the husband filed a suit for restitution of conjugal rights to avoid the consequences regarding a suit for maintenance by his first wife and to cohabit peacefully with his second wife. It was further observed that the husband was never concerned for his first wife, leaving her neglected, while he took utmost care of his second wife, which amounts to injustice between his two wives.

Other grounds – Section 2(ix)

This is a residuary clause which allows an aggrieved Muslim woman to acknowledge her rights even if the ground on which she is seeking divorce is not explicitly mentioned in the other eight grounds. The scope of this section is wide in nature and is interpreted in various senses depending upon the circumstances and facts of a case.

These grounds may include grounds from other forms of divorce, such as lian or Zihar. One such case to exemplify is Tufail Ahmad vs. Jamila Khatun (1962). The wife, in this case, filed a suit for divorce from her husband on the ground of false imputation of unchastity against her. She claimed that such false allegations against her would fall under the purview of Section 2 (viii) (a) and, if not, under the residuary clause, i.e., Section 2 (ix). The Court, after examining the case, held that even though the case was admitted on its merits, the bona fide retraction of such allegations by the husband nullifies the claim. The Court further held that there is no dedicated clause in this regard, and following prior precedents, it shall be justified to dismiss the suit based on the husband’s bona fide retraction.

Notice to heirs of the husband when the husband’s whereabouts are not known (Section 3)

This provision is provided to avoid unambiguousness and to foster a cautious and responsible approach towards the procedure under Section 2 (i), which deals with the disappearance of the husband. This provision compels the wife to address the heirs of the husband while filing a suit under Section 2 (i), which includes:

The names and addresses of the husband’s heirs must be mentioned in the plaint. Under Muslim law, the inheritors must be the heirs of the husband, as if he had died at the time of filing the suit. [Section 3 (a)]
The notice of the suit is deemed to be served on such persons. [Section 3 (b)]
These persons shall have the right to be heard in the suit. [Section 3 (c)]

This provision gives clear status to the husband’s brother and Paternal Uncle as parties to the suit, even if they are not his heirs.

Effect of conversion to another faith (Section 4)

Section 4 of this Act lays down that the conversion of Islam to another religion by the wife would not ipso facto dissolve her marriage with her Muslim husband. Earlier, under the Hanafi School of Islam, conversion by a Muslim woman from Islam to another religion would automatically repudiate her marriage. The precedential tradition of instant dissolution of marriage of a Muslim woman who committed apostasy, came to an end with the genesis of Section 4 under this Act.

Section 4 lays down the following:

The renunciation from Islam or conversion to another faith by a Muslim married woman shall not by itself amount to the dissolution of her marriage.
This Section further states that after such renunciation or conversion, the woman would still be entitled to file a suit for divorce under this Act. Section 2, widening the scope of this act, has provided these rights for any woman married under Muslim law.
This Section has excluded women who converted themselves to Islam from another faith but still are governed by their former faith.

However, in the case of Krishna Das Choudhury & Ors vs. Mustt. Prabin Rahman Hazarika & Ors (2015), if a husband performs apostasy in order to marry another woman, given that his existing wife has completed her iddat period by default and there has been no expressed divorce or suit for divorce, the marriage shall stand dissolved.

Case laws and judicial interpretations

There is an ocean of case laws and precedents that are followed by the courts to reach their ratio decidendi. However, in this section of the article, a few key case laws have been briefly discussed from the view of this Act.

Sarla Mudgal vs. Union of India (1995)

This case revolves around the concept of ‘polygamy’ and deceitful marriages. This case also centres attraction towards itself by attempting to beneficially use the personal law of another religion by converting to such religion. This case led the Supreme Court to question the applicability of one’s personal laws, and Article 44 of the Indian Constitution was also invoked.

Respondents, in this case, converted themselves to Islam and married another woman, despite already being married. This case came into the limelight as more than one petition was addressed together by the Court during the hearing. In order to remarry and fall out of the purview of Section 494 of the IPC, the Respondents converted themselves to Islam so as to avoid the consequences of the offence of bigamy. The Court addressed three main issues under this case: the validity of the second marriage after conversion while the first marriage still subsisted, the applicability of such practice and whether such apostasy of the husband would come under the purview of Section 494, IPC.

The Court, after examining the facts and circumstances of the case, held that the apostasy of the husband cannot dissolve his former marriage automatically. According to the pre-1955 Hindu customs under marriage, the conversion of a Hindu husband to Islam does not amount to a repudiation of his marriage under Hindu Law. This case stands contradictory to the case of Krishna Das Choudhury & Ors vs. Mustt. Prabin Rahman Hazarika & Ors (2015), where the only difference was that, in this case, the husband converted himself from Islam to Hindu.

Itwari vs. Smt. Asghari And Ors. (1959)

The issues in this case revolved around injustice perpetrated by a husband between his two wives. The Appellant, in this case, filed a suit for restitution of conjugal rights against his first wife, who had already separated herself from her husband’s society due to cruelty and filed a suit for maintenance. The court, after examining the facts and circumstances of the case, observed that the appellant caused physical and mental abuse upon his first wife, due to which she started residing at her paternal home. The court observed that the appellant never made efforts to bring his first wife home; rather remarried another woman and filed a suit for restitution of conjugal rights in consequence of a suit filed by his first wife for maintenance. The court held that even though under Mohammedan Law, four marriages are allowed, it is never encouraged by Islam to do so, especially when a man knows that he would fail to do justice among his wives.

Bai Fatma Alauddin vs. Mumna Miranji Haji (1956)

This case revolves around clause (ii) of Section 2, where the wife alleged her husband of cruelty, ill-treatment, and failure by the husband to provide maintenance for a continuous period of two years prior to the suit. As a result of the non-maintenance by her husband, the wife started to reside at her paternal home and filed a suit for decree of divorce under Section 2 (ii) of this Act.

The Court, on further examination of the facts and circumstances, held that on an occasion where the husband makes efforts to reconcile with his wife, the wife’s persistent refusal to stay with her husband invalidates the allegation put by the wife upon her husband of avoiding providing her maintenance.

Shayara Bano vs. Union of India (2017)

The case of Shayara Bano was decided by a five Judge’s Bench with a majority of 3:2. Although the case is not directly concerned with provisions of this Act, it provided a huge arena in regard to dissolution of marriage under Muslim law. The 403-page Judgement has penned down various observations derived from precedents, commentaries, statutes, Quran and other reliable sources.

The ratio decidendi of this landmark judgement is declaring the practice of ‘Triple Talaq’ unconstitutional, practised formerly under ‘Talaq-ul-Biddat’ under Muslim law. The nullification of this form of talaq has empowered Muslim women and given them back their due justice. The Court, in this case, has upheld the utmost significance of this Act and commented on how judiciously and with prudence this Act has been the backbone of Muslim women.

Conclusion

While tracing the evolution of the dissolution of Muslim marriages, one can only get a glimpse of the torturous and ill-treated position of the Muslim women whose only grounds for dissolution of marriage were either impotence of her husband or delegation of the right to seek a decree of divorce from her husband. The pre-Islamic era summarised all the barbaric acts that the husbands did upon their wives. The patriarchal society made married Muslim women slaves of their husbands, who were ultimately left unprovided for years and were then neglected by their husbands, who married their next victim.

Through its provisions, the Act not only outlined the major need of the hour but highlighted certain underlying aspects as well, such as insanity of her husband, desertion of her husband for four years, non-maintenance by the husband, quashing of the automated dissolution of her marriage upon apostasy. These provisions have set out a notion as to an ideal set of rules for women to dissolve her marriage.

The Act is also adapting to the contemporary legal challenges, ensuring that Muslim women across different sects and regions in India can seek justice without prejudice. Over time, its application has evolved through judicial interpretations and other key landmark judgements. Section 2 of this Act phrases ‘A woman married under Muslim law’, which expands the ambit of this Act beyond any sect or school under Muslim law. This Act further aims to solidify the rights given to a Muslim woman by dedicating specific provisions and sparing a residuary ground so as not to make the list of grounds exhaustive.

Frequently Asked Questions (FAQs)

Is the dissolution of a Muslim woman’s marriage valid if such dissolution is not governed by this act?

A Muslim woman can always opt for another method of getting her marriage dissolved, for example, via a Talaqnama, repudiation of the contract with her husband, by returning her dower according to an oral Talaqnama or delegation of the power of divorce by the husband, i.e., Talaq-e-Tafweez, where the wife receives absolute authority to exercise the power as she wishes concerning herself, and this authority is irrevocable.

References

https://blog.ipleaders.in/muslim-law-divorce/.

Rising role of AR and VR in industrial automation – an insight

By

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August 2, 2024

This article has been written by Volina Aneja pursuing a Remote freelancing and profile building program from Skill Arbitrage.

This article has been edited and published by Shashwat Kaushik.

Introduction

Industrial automation has undergone a significant transformation in the last few decades. Industrial processes, which were once controlled manually with the advent of integrated circuits and digitalization, started getting controlled using computers and other electronic devices, making them more accurate, safe, and highly efficient.

In recent years, the next era of augmented reality (AR) and virtual reality (VR) technologies has brought powerful tools that have further enhanced the way industrial automation is done. They have enormous potential to change how we interact with our environment using information, visualisation, and interaction. AR & VR have evolved beyond gaming and entertainment and have become critical tools in various industries like healthcare, education, and industrial automation.

Understanding AR and VR

AR integrates and adds value to the user’s interface with the real world, whereas VR gives the simulation experience outside the real world—virtually. AR uses real-time information that could be in the form of text, graphics, audio, or video and integrates it with real-world elements using holographic technology. VR isolates the user from the real world and takes the user to a virtual world, allowing users to interact with the computer-generated 3D spaces using computer modelling and simulation. These technologies have revolutionised industrial automation.

The role of AR and VR in industrial automation

In recent years, the integration of AR (augmented reality) and VR (virtual reality) with industrial automation has emerged as a game changer in revolutionising the way tasks are performed, empowering industries to automate processes, optimising operational efficiencies, providing a safe and secure environment, improving productivity and enhancing the overall user experience. There are various ways in which AR and VR are used in industrial automation.

As per Statista, the AR & VR market is projected to generate revenue of US$40.4 billion in 2024. This market is expected to grow at an annual rate of 8.97% (CAGR 2024-2029), resulting in a projected market volume of US$62.0 billion by 2029.

Applications of AR in industrial automation

There are many ways in which AR (augmented reality) is being used these days in industrial automation for maintenance and repair, quality control, remote assistance, workflow visualisation, fleet management and skill development.

Maintenance and repair

Earlier, it was quite a time-consuming exercise involving intricate manuals, procedures, and finding faults with the help of expert technicians. AR provides real-time diagnosis and guidance to the maintenance and repair team, hence making it more streamlined, accessible and reducing MTTR (Mean Time to repair). Even if the expert technician is not able to travel to the site, he can guide the junior technicians to go step by step using AR technology without compromising on the quality of work. Technicians can either use AR headsets or mobile devices to access step-by-step instructions overlaid on the equipment they are working on, resulting in faster and more accurate troubleshooting. They can wear AR glasses and can even view the internal components of the machine without disassembling it. This reduces downtime, enhances operational uptime, and minimises errors.

Training and skill development

With the help of AR, real-world scenarios can be simulated, and a trainee can be trained or skilled in an interactive way, thereby ensuring an efficient learning experience. Using AR-enabled devices, trainers can provide real-time hands-on training to their trainees, where the trainees can view step-by-step instructions and digital overlays on actual machinery and equipment. Not only this, they get immediate feedback on their actions, which will help them understand what went wrong and why. This method of training allows trainees to practice their tasks in a real environment with digital guidance, without getting scared of making any tangible loss to the company. This enhances their learning efficiency and effectiveness. This also helps multiple trainees to participate in a shared augmented environment, where a trainer can be in a remote location but can guide them through digital annotations and instructions while trainees can share their views through AR glasses or any other mobile device in real-time.

Quality Control and Inspection

AR (augmented reality) is making the lives of quality and inspection teams much easier. It allows the inspectors to view digital overlays like defect markers and measurement tolerances on the physical products themselves, making it easier for them to identify defects or issues. They can even compare the products with the desired CAD models. Any discrepancy calls for immediate action and hence reduces the inspection and action time to fix the fault. This is possible because the AR provides real-time information to the inspectors. Example – The automotive industry uses AR to ensure that each vehicle meets stringent quality standards, leading to a significant reduction in inspection times.

Applications of VR in industrial automation

Applications of VR (virtual reality) in industrial automation are manifold, ranging from product and process design to remote and virtual demonstrations to employees, customers and potential partners.

Virtual prototyping and design

VR, besides optimising the design process, makes them impressive and holistic. It allows engineers to prototype the completed design virtually and show it to their clients for approval. Even engineers sitting at different locations can collaborate and work together on a design as Avatars. They can not only create but they can even test their virtual prototypes in the virtual environment and resolve any design issues before production begins. They can test various variations in the design and note down the cause-and-effect relationship of the same, which otherwise would have been very difficult and expensive. VR provides them with a platform to experiment and explore unconventional ideas that the traditional system doesn’t allow. This freedom of creativity leads to innovation and breakthroughs. Many CAD software providers these days offer inherent integration with virtual reality environments.

Training and simulation

This is a lifesaver when it comes to training employees for hazardous tasks. VR technology allows workers to get trained in a controlled, risk-free virtual environment. This helps them gain confidence before actually performing risky tasks in a real environment. For instance, in the oil and gas industry, they train their workers on VR before actually boarding them for the real tasks in the real world. Besides this, the frontline workers get access to interactive training material anytime and anywhere. Crisis readiness training in situations like explosions, fires, floods, toxic releases, and earthquakes is also given using VR technology. Research shows that VR can help reduce the odds of work-associated injuries by 43%, which translates to substantial financial savings for companies regarding workers’ compensation claims, legal fees, and lost productivity. 39% of big organisations leverage VR/AR technology to facilitate training in simulated environments.

Remote collaboration

Traditionally, for sophisticated machines, experts were called on-site for installation, training, maintenance, or repair. With VR, all this is possible virtually with the help of self-guided step-by-step VR tutorials. With VR headsets, on-site workers can also use AI and connect with technicians remotely. VR technology helps remote teams connect. VR became very useful in the time of COVID. With the rise of remote work, VR technology appeared as a game changer in those difficult times. It helped industries communicate and collaborate across distances. VR technology enables virtual meetings in 3D spaces. It creates an environment where the participants and the digital objects interact with each other as if they were in the same room. Hence, it enhances the sense of engagement, effective collaboration, and team building. VR technology also gives the customer a virtual experience of the product and service, enabling sales professionals to connect with their customers remotely on a virtual platform. Customers get the option to interact with virtual products, understand their features, and even explore different configurations, leading to more informed purchase decisions.

Case study and live examples

Boeing’s efficiency improvement with AR

Boeing uses AR technology to assist its workers in assembling aircraft. AR glasses provide step-by-step instructions and overlays that indicate the exact locations for component placement, reducing assembly time and errors. Boeing reduced wiring time in some aircraft by an impressive 30%.

Porsche turns to AR to grade up its service

Porsche is using CAD data from its new Taycan for the world’s first workshop solution using augmented reality (AR). The goal is to make the service and maintenance of the company easier and faster and give convenience to its workshop employees, who no longer need to search through page after page of repair manuals.

Siemens utilises virtual reality to enhance the employee experience

Since Siemens employees work with heavy machinery in factories, they provide EHS training to their staff with valuable insights about their workplace, underlying processes, and safety measures. To enhance that learning, Siemens, in collaboration with VRdirect, created a virtual tour and an escape game using VR technology for its workers to improve their understanding of their workplace in a fun and interactive manner.

Ford uses AR & VR to design cars, reduce costs, and train employees

Ford uses the digital manufacturing concept to reduce injuries, lower tooling costs and improve quality. Ford uses VR to design new cars and AR to train its salespeople on new vehicle models. The company has developed an AR app that allows salespeople to see a 3D model of a new vehicle overlaid in the real world.

Benefits of AR and VR in industrial automation

The benefits of AR and VR in industrial automation are immense-

They improve efficiency and productivity by reducing human errors.
Significantly reduces workplace accidents by allowing workers to practice handling dangerous situations in a virtual or simulated environment.
Leads to substantial cost savings by reducing errors, downtime, material and labour costs, operational costs, and associated costs by creating virtual prototypes.
Reduces product time to market (TTM). All this is possible because these technologies provide real-time information and allow users to experiment with new ideas and scenarios, even if the teams are dispersed geographically.
It increases user engagement and motivation because of its interactive nature and capability to enhance visualisation.

Limitations of AR & VR in industrial automation

Though AR and VR technologies have shown significant potential in industrial automation, there are still certain concerns that need to be addressed for their widespread adoption. High initial cost of hardware, software and associated infrastructure. Developing customised content is not easy. User comfort and safety where they have to wear the headsets for a longer time, causing discomfort to the eyes and motion sickness. Ensuring a safe environment for users so that users don’t get hurt because of a lack of awareness of their surroundings while wearing R/VR headsets. As these technologies are developing, Data Privacy remains a foremost concern. Other limitations include:

Cost: AR and VR hardware and software can be expensive, making it challenging for small and medium-sized enterprises to invest in these technologies. The cost of VR headsets alone ranges from a few hundred to several thousand dollars, while AR glasses can cost even more. Additionally, businesses may need to invest in additional infrastructure, such as powerful computers and tracking systems, to support these technologies.
Complexity of implementation: Implementing AR and VR solutions in an industrial setting can be complex and time-consuming. Companies need to develop or purchase specialised software, integrate it with existing systems, and train employees on how to use the technology effectively. This process can be disruptive to operations and may require downtime for installation and configuration.
User experience: While AR and VR can provide immersive and engaging experiences, there are still challenges related to user experience. Some users may experience discomfort, dizziness, or nausea when using VR headsets for extended periods. AR glasses can also be bulky and uncomfortable to wear, especially during long work shifts. Additionally, the field of view of AR and VR devices may be limited, which can impact the user’s ability to perform tasks effectively.
Safety concerns: AR and VR technologies can introduce new safety risks in industrial environments. For example, workers wearing VR headsets may not be fully aware of their surroundings, which could lead to accidents or injuries. AR glasses may also create visual distractions, making it difficult for workers to focus on their tasks. To address these concerns, companies need to develop and implement comprehensive safety protocols for the use of AR and VR in industrial settings.
Data privacy and security: Industrial automation often involves sensitive data, such as production plans, customer information, and financial records. The use of AR and VR devices can raise concerns about data privacy and security. Companies need to ensure that these technologies are equipped with robust security measures to protect sensitive data from unauthorised access and breaches.

Overcoming these limitations will be critical for the widespread adoption of AR and VR in industrial automation. As these technologies continue to evolve, it is likely that many of these challenges will be addressed, making AR and VR even more valuable tools for businesses in the future.

Future trends and developments

Augmented reality (AR) and virtual reality (VR) technologies continue to make significant strides, although their mainstream adoption is still in its early stages. Statista, a leading provider of market and consumer data, suggests that the growth of AR and VR is poised for exponential growth in the coming years.

As hardware components become more advanced, comfortable headsets are developed, and artificial intelligence (AI) makes greater inroads into industrial automation, the user experience of AR and VR is anticipated to improve dramatically. These enhancements will likely lead to increased adoption rates of these technologies.

According to Statista’s projections, the global AR and VR market is expected to exceed 100 million users by 2027, signalling a significant milestone in the industry’s growth. This remarkable expansion is expected to be driven by a compound annual growth rate (CAGR) of 8.97% between 2024 and 2029, resulting in a projected market valuation of approximately US$62.0 billion by 2029.

Several factors are contributing to the anticipated surge in AR and VR adoption. The rising popularity of immersive gaming experiences, the increasing demand for virtual training and education platforms, and the growing utilisation of AR and VR in healthcare, manufacturing, and retail sectors are among the key drivers of this expansion.

As the lines between the physical and digital worlds continue to blur, AR and VR technologies have the potential to transform various industries. From revolutionising product design and prototyping to enhancing workforce training and collaboration, the applications of these technologies are limitless.

However, challenges such as motion sickness, latency issues, and the need for specialised hardware may hinder the widespread adoption of AR and VR. Additionally, privacy and security concerns surrounding the collection and use of personal data in these immersive environments need to be addressed.

Despite these obstacles, the future of AR and VR technology appears exceptionally promising. As technology continues to improve and the cost of headsets decreases, the integration of AR and VR into our daily lives is likely to become more prevalent. These technologies have the potential to reshape entertainment, education, healthcare, and communication, offering users new and immersive ways to interact with the world around them.

There is a growing demand for standalone devices that do not require a connection to a PC or a console to offer greater convenience and mobility to their users. The focus is on improving the audio and visual quality for a better AR and VR experience. Higher-resolution displays, enhanced graphics processing, and spatial audio technologies are being developed to provide a more realistic and immersive experience.

Over the next decade, AR and VR are expected to become vital components of smart factories, driving further productivity and efficiency. Their applications are immense, from product design to employee training to maintenance to remote collaboration.

Conclusion

Augmented reality (AR) and virtual reality (VR) are undoubtedly the cutting edge technologies revolutionising industrial automation by giving an immersive user experience to enhance productivity, efficiency and cost reduction. With advancements in AI and machine learning, these technologies will further evolve in blending the digital and physical elements in the real world in AR and the virtual world in VR. Ensuring data privacy, robust security and establishing industry standards will lead to wider user acceptance. Development in the hardware of AR and VR devices and fast internet connections will lead to better high quality user experience and hence these technologies will become an integral part of industry automation.

References

Unmasking necrophilia in India : a legal examination under BNS

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August 2, 2024

This article has been written by Tulika Rawat pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

India is notorious for its high crime rates, with rape being the fourth one on the list of the most common crimes in India. Traditionally, rape is defined as “sexual molestation, usually unlawful sexual intercourse, carried out by the perpetrator through the assertion of force (physical or emotional, or both) or by the threat of inflicting some kind of injury on a person, or sexual intercourse with a person who is incapable of giving legal consent (minor) or not in the position to give valid consent because of intoxication, unconsciousness, mental illness, mental deficiency, or deception.” However, this definition applies to only those victims who are alive; what about those who can’t speak for themselves—the deceased? Yes, you read it right; sexual offences are carried out with dead bodies as well.

In 2023, the Karnataka High Court gave a landmark ruling in a notable case of necrophilia that showed us a harsh reality. The court held that having sexual intercourse with the dead body of a woman can’t fall under the ambit of rape or unnatural offences under the Indian Penal Code ,1860 (IPC), which has been now repealed by Bharatiya Nyaya Sanhita,2023(BNS). This rare paraphilia (deviant sexual behaviour) has occurred throughout history, but no strict legislative action has been taken against it in India. The new criminal law that came into force on July 1, 2024 has been proven to be a missed opportunity to address the crime of necrophilia. Despite multiple reminders given by the judiciary on the need for reformation of criminal law to address the heinous acts of necrophilia, the matter remains untouched in the newly enforced criminal law.

Through this article, I aim to give you an insight into the gruesome incidents of necrophilia that took place in India. By analysing landmark judgements and existing laws, we will detect the major gap in the legal system and the necessity for legal reforms. We will also take a brief look at the psychological motives behind such a crime.

What is necrophilia

The word Necrophilia is derived from the combination of two Greek words: philios (attraction to or love for) and nekros (dead body or corpse). It is a form of paraphilia in which a person gets sexual arousal from dead bodies. To elucidate in simple language, a necrophile is a person who elicits sexual pleasure by having intercourse with a dead body, while necrophilia is the commission of the act of having intercourse with the dead body.

A comprehensive study conducted by Jonathan P. Rosman and Philip J. on 122 cases of necrophiliac acts depicts the psychology behind such behaviour and fantasies. The study classified necrophilia into three categories:

Necrophilia homicide- It is the gravest form of necrophilia, where the necrophiliac person gets compelled to cause the death of a living person to fulfil their sexual enticement.
Regular necrophilia- Here the necrophiliac person doesn’t cause the homicide of a living person; rather, they seek the body of an already dead person to have sexual intercourse with it.
Romantic Necrophilia- In this case, the necrophiliac person only feels sexual arousal towards their romantic interest; they can’t accept the death of their beloved partner or romantic interest and somehow take possession of their corpse to fulfil sexual desire and stay connected to them.

Surprisingly, the study found that neither mental retardation, sadism, nor psychosis appear to be inherent in necrophilia. The most common motives that came forth were possession of a non-resisting or non-rejecting partner, fears of emotional abandonment, and a desire to reunite with a romantic partner. Poor self-esteem and a lack of confidence, which get worsened by rejection by a romantic partner, often trigger this paraphilia. Necrophiles mostly prefer jobs that require them to be in contact with corpses; despite having occupational access to corpses, some necrophiles commit homicide.

Rising incidents in India

The incidence of sexual offences against corpses in India is rampantly increasing. Despite the presence of one or two cases reaching the door of courts every year, there are no specific laws in our legal system to criminalise and punish this paraphilia; necrophilia has not been defined under any legislation, and this brings much trouble for the judges to punish the offenders appropriately and protect the dignity of the dead person.

The Nithari case

A spine-chilling case of necrophilia accompanied by murder, cannibalism, and organ trafficking emerged in 2006, infamously known as “The Nithari Case.” This was the first case of paraphilia that caught the attention of the whole nation and many people got introduced to such emerging heinous crimes that seemed taboo. In this case, the accused, Moninder Singh Padher, and his servant, Surinder Koli, were arrested for several heinous crimes: causing the murder of various women and children, engaging in sexual intercourse with the dead bodies of the victims, consuming the body parts of the dead bodies, and organ trafficking. Several pornographic CDs and naked images of the victims were recovered from the accused’s house.

The Palghar case

At the time of the COVID-19 lockdown in 2020, a gut-wrenching case came forth from Palghar, Maharashtra, where a shopkeeper (Shiva Choudhary) killed a 32-year-old female customer during a heated argument over the price of goods in his shop. After murdering her by slitting her throat, the shopkeeper raped her body and then dumped it half a kilometre away from the shop.

On being questioned, he confessed his crime of killing and raping the woman and also said that after being separated from his wife for more than one year, he felt compelled to kill her. He was immediately arrested and examined by a medical examiner for potential mental health issues.

The Jalandhar case

A recently reported case of necrophilia in December 2023 in Jalandhar, where an e-rickshaw driver in his early thirties was arrested for the allegation of the murder of a 22-year-old nurse, the accused admitted to having murdered the nurse by pressing her neck against the seat of e-rickshaw, then raped her lifeless body and returned to the crime scene three hours later to repeat the abominable act. He also confessed to preying on two other women prior to this incident. He claims to have conducted the crime in a drunken state.

The Karim Ganj Hospital Case

A nauseating incident of paedophilic necrophilia came forth in April 2024 from Assam. As per the reports, the deceased minor girl committed suicide by consuming poison. Following her death, the police and a magistrate went to examine the scene and recover the minor’s body, and then the body was sent to the civil hospital of Karim Ganj, where it was kept in a mortuary for a post-mortem. The turn of events became more tragic when the police discovered that the girl’s corpse was raped in the post-mortem room. During the investigation, the police identified the culprit, Manju Rabi Das, a sweeper in the hospital, who confessed to raping the minor girl’s deceased body. The investigation is still underway.

Legal rights of dead

The Indian Constitution, in Article 21, solemnly enshrines the fundamental right to life and personal liberty for all citizens. This right is not merely confined to the realm of living existence but extends beyond the physical boundaries of life itself.

In the landmark case of Parmanand Katara vs. Union of India, the Supreme Court of India interpreted Article 21 and elucidated that it encompasses the right to live life with dignity as an inalienable fundamental right. This right, the court held, does not cease upon the demise of an individual but persists even after death.

The Supreme Court further emphasised the significance of upholding and safeguarding the dignity of the dead in the case of Ashray Adhikhar Abhiyan vs. Union of India. The court recognised the importance of respecting the religious beliefs and practices of the homeless individuals during their funeral rites. It highlighted that the dignity of the dead must be accorded the same level of importance as the dignity of the living.

Similarly, in the case of Ramji Singh and Mujeeb Bhai vs. State of U.P. and Ors., the Allahabad High Court reiterated that Article 21 encompasses the right to treat deceased individuals with the same dignity and respect that they were entitled to during their lifetime. The court expressed its disapproval of unnecessary post-mortem examinations of dead bodies, emphasising that such practices could potentially violate the dignity of the deceased.

These judicial pronouncements underscore the commitment of the Indian judiciary to uphold and protect the right to dignity, both in life and in death. They serve as a reminder that the dignity of the human person, even after the cessation of life, must be respected and preserved.

Section 315 BNS states that any misappropriation done with malevolent intention to a dead man’s property is an offence.
Section 356 BNS deals with defamation, stipulating that any false and derogatory statement published against a dead person constitutes criminal defamation and is punishable.
Section 351 BNS states that intimidating an individual with threats of wounding the image or reputation of a dead person who is dear to him is a criminal offence.

The above-mentioned sections protect various aspects of a deceased person’s dignity but none of them deal with cases of necrophilia. This depicts that the Indian legislature, to some extent, recognises the rights of a dead person and strives to protect their dignity but is chiefly lacking in addressing the emerging crimes related to deviant sexual behaviour, which underscores the need for law reforms to criminalise necrophilia and similar crimes.

Legal provisions associated with necrophilia

Section 297 IPC/ Section 301 BNS

As per the provision laid down by Section 297 IPS now Section 301 BNS, if any individual, with the knowledge or aim to wound or insult the religion of a person, trespasses in a worship space or a place that is set up for funeral rites or set up as a repository for the remains of the dead person and treats the corpse with indignity or causes a nuisance to the people assembled there for funeral rites, such person shall be punished with imprisonment up to 1 year or fine or both. Such a violation of the dignity of dead bodies is strictly prohibited under the law.

This is the closest section in criminal law that deals with the indignity performed with a dead body. However, the interpretation of this section is vague, it doesn’t define the word “indignity,” as it is a broad term that includes multiple actions that may outrage the dignity of the dead body, such as throwing the dead body outside the graveyard, undressing the dead body, mutilating the dead body, having intercourse with the dead, etc., and for every action it has a similar punishment, which would not suffice for every case. There is no certain definition of indignity under this section that would ascertain whether this section covers the case of necrophilia or not, and even if it would have covered, still one-year imprisonment, a fine or both would not suffice for such a horrendous act.

Another deficiency of this section is that it sets geographical limitations to only places of worship and places of sepulture, which makes it inapplicable to those cases where desecration has been performed outside the vicinity of worship places and cemeteries.

Section 377 IPC (entirely repealed)

Section 377 IPC expresses that any person who voluntarily or willingly has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with either imprisonment for life or with imprisonment for a term that may extend to 10 years or a fine or both. In the landmark case of Navtej Singh Johar vs. Union of India, Section 377 of the Indian Penal Code, which criminalised consensual sexual intercourse between two people of the same gender, was challenged as being unconstitutional. The Supreme Court of India, in a historic judgement, held that Section 377 was violative of Articles 14, 15, 19, and 21 of the Constitution, which guarantee fundamental rights such as equality before the law, non-discrimination, freedom of expression, and the right to privacy.

The Court recognised that sexual orientation is an essential attribute of one’s personality and that discrimination based on sexual orientation is a violation of fundamental rights. It further held that the criminalisation of consensual same-sex relationships had no rational connection to any legitimate state interest and was, therefore, arbitrary and irrational.

The Court’s decision was a significant victory for LGBTQ+ rights in India. It marked the end of a long and arduous struggle for equality and recognition, and it paved the way for greater acceptance and inclusion of LGBTQ+ people in Indian society.

Following the Supreme Court’s judgement, the government of India took steps to repeal Section 377. In 2019, the Parliament passed the Transgender Persons (Protection of Rights) Act, which included a provision repealing Section 377. The repeal of Section 377 was a major milestone in the fight for LGBTQ+ rights in India, and it brought the country in line with many other nations that have recognised the rights of LGBTQ+ people.

The Bharatiya Nyaya Sanhita (New Criminal Law) is a proposed new criminal code for India that is currently under consideration by the government. The draft code does not include any provision criminalising consensual same-sex relationships, reflecting the Supreme Court’s judgement in Navtej Singh Johar vs. Union of India.

Before the enforcement of new criminal law, this section has been linked to cases of unnatural offences specifically related to dead bodies because the term “unnatural offence” has been used in the section. This section specifically states that it applies to voluntary acts of sexual intercourse that are contrary to nature’s order, and because a dead body is incapable of giving or not giving consent, determining whether the act has been done voluntarily or not becomes impossible, hence this section was not appropriate for such cases. In the case of Childline India Foundation v. Allan John Waters, the Supreme Court explained that for an act to be considered necrophilia under Section 377, there should be carnal intercourse done against nature’s order that is unusual and can’t lead to procreation. Necrophilia evidently goes against nature’s norm but the word “voluntarily’’ used in the section creates complexity and makes it tricky for the judiciary to apply this section in cases of necrophilia.

This provision had a significant potential for the amendment to include the definition of necrophilia and other deviant sexual behaviour, classifying them as cognisable offences and additionally imposing strict punishment for them; however, the legislature chose to remove the whole section from the new criminal law (BNS). The repeal of this section has adversely affected the interests of animals as well, as it was the only section punishing acts of sexual brutality against animals and unfortunately, there is no other section added to the BNS to address this crime. The removal of this section has faced widespread criticism by the people; it is a major setback to the whole criminal justice system.

Section 375 IPC/ Section 63 BNS

Section 375 of the IPC, now Section 63 BNS, defines rape as sexual intercourse with a woman against her will or in any way that has been stated as unlawful under this section. This section specifies the term “woman,” which has been defined under Section 10 of the IPC, now Section 2(35) BNS, as a female human being of any age. It clearly states that rape under this section only covers female living beings and not their dead bodies; hence, Section 375 and Section 376 of the IPC, now Section 64 BNS, are not applicable in the cases of necrophilia.

In the case of Rangaraju Vajapeyi vs. The State of Karnataka, a notable loophole in the Indian legal system was highlighted. The High Court upheld the murder conviction of the accused but struck down the conviction for rape awarded by the lower court. The court observed that the act of necrophilia can’t be covered under sections 375 and 377 of the IPC, and there are no provisions under criminal law to punish sexual intercourse with a dead body. The Court clarified that Section 297 of the of the IPC protects the dignity of the dead but does not specifically address necrophilia. The High Court also held that there is an urgent need to reform the criminal law to address the crime of necrophilia specifically.

Conclusion

India lacks a legal framework that provides laws that specifically deal with sexually deviant behaviour like necrophilia. Despite the evident increase in cases of necrophilia, neither old criminal law (IPC) nor new criminal (BNS) law criminalises such deplorable acts. The judiciary has tried to protect the dignity of the dead through various precedents, but due to the absence of anti-necrophilia laws, judges are unable to render judgements to penalise the perpetrator with appropriate punishment and give justice to the victim; thus, the wrongdoer remains unpunished for necrophiliac acts. This is a prominent gap in the Indian legal system to protect the dignity of the dead. The landmark ruling of the Karnataka High Court in 2023 calls for the urgent need for amendments in the criminal law to incorporate provisions to protect dead bodies from being exposed to sexual brutality and punish the evil-doer of such crimes. In the new criminal law that came into force on July 1, 2024, no provision has been added to define and punish the crime of necrophilia. This omission indicates that despite of judiciary’s urgent call for reformation, the legislature continues to ignore the severity of necrophilia.

Taking inspiration from the UK’s Sexual Offences Act of 2003, which recognises necrophilia as an offence under Section 70, India needs to learn from other countries’ legal frameworks. Countries like Canada, New Zealand, and South Africa have already prohibited necrophilia through distinct legislation. Drawing inspiration from countries like the UK, Canada, and South Africa, which have recognised and legislated against necrophilia, India must urgently follow suit. The protection of deceased individuals from sexual brutality is not just a matter of legal necessity but a fundamental aspect of upholding human dignity.

To bridge this legal gap, it is imperative for the legislature to:

Clearly define necrophilia and related deviant behaviours.
Classify necrophilia as a cognisable offence.
Impose stringent punishments for such acts to deter potential offenders.

By addressing this critical issue, India can take a significant step towards protecting the dignity of all individuals, living or deceased, and strengthening the integrity of its criminal justice system.

References

U.N.R. Rao vs. Indira Gandhi (1971)

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August 2, 2024

This article is written by Akshay Gendle and it discusses in detail the judgement of the Supreme Court in the case of U. N. R. Rao vs. Indira Gandhi (1971). The article includes facts, issues, arguments, judgement and the rationale behind the judgement of the Supreme Court. It explains the issue of whether the Council of Ministers, including the Prime Minister, are eligible to serve in their respective offices in the absence of the confidence of the House of the People.

Introduction

In a Parliamentary form of Government, the President is only the nominal head of the State and the true power lies in the hands of the Prime Minister and the Council of Ministers. The Council of Ministers serves until they have the confidence of the House of the People.

But what happens when the House of the People is dissolved by the President? Will the Council of Ministers, including the Prime Minister, be eligible to serve in their respective offices in the absence of the confidence of the House of the People?

This issue was addressed by the Supreme Court of India when a similar situation was faced by them in the case of U.N.R. Rao vs. Indira Gandhi (1971). The Supreme Court delved into various Articles of the Constitution to solve this issue and their interpretations are discussed in detail in this article.

Details of the case

Name of the case

U.N.A. Rao vs. Indira Gandhi

Name of the court

Supreme Court of India

Date of judgement

17 March 1971

Equivalent citations

AIR 1971 SC 1002, (1971) 3 SCC 287

Bench

Then Chief Justice A.N. Grover, Justice S.M. Sikri, Justice G.K. Mitter, Justice K.S. Hegde and Justice P. Jaganmohan Reddy.

Authored by

Justice S. M. Sikri

Names of the parties

Petitioner: U.N.A. Rao

Respondent: Smt. Indira Gandhi

Facts of the case

On 27th December 1970, the Fourth Lok Sabha was dissolved by the then President V. V. Giri on the recommendation of Prime Minister Indira Gandhi. This Lok Sabha was dissolved 1 year before its actual dissolution date. The Prime Minister, Indira Gandhi, acknowledged that her minority Government was likely to fall as it didn’t enjoy the confidence of the House of People anymore. Therefore, she dissolved the Lok Sabha in order to carry out fresh Lok Sabha elections.

Even after the dissolution of the Lok Sabha, the respondent, Indira Gandhi and her Council of Ministers continued with their respective posts. Hence, the petitioner approached the Supreme Court of India to issue a writ of quo warranto against the respondent to show by what authority she was holding the office of Prime Minister of India in the absence of the Lok Sabha. The major issue and the arguments of the parties are discussed hereinafter.

Issues raised in the case

Whether the Council of Ministers, including the Prime Minister of India, is entitled to hold their respective offices after the dissolution of the House of People/Lok Sabha?

Arguments of the parties

Petitioner

The Petitioner raised a series of questions before the Supreme Court in his arguments. Firstly, whether Indira Gandhi and other ministers can hold their offices in the absence of Lok Sabha. His contentions were clear, according to Article 85(2) of the Constitution of India, the Prime Minister and his Council cease to hold their respective offices once the Lok Sabha is dissolved by the President of India.

Secondly, Article 75(3) says that “the Council of Ministers shall be collectively responsible to the House of People.” The appellant argued that how can the Council of Ministers be held accountable to the people when there is no Lok Sabha in the first place?

Lastly, the appellant argued that even if the question of void may arise in carrying out the functions of the Government of India in the absence of the Council of Ministers and the Prime Minister, the same can be addressed under Article 53(1) of the Constitution. This Article gives powers to the President to handle the executive functions of the Union Government. He can use these powers directly or through his subordinate officers. Hence, it is not essential for the respondent to hold the office, specifically in the absence of Lok Sabha.

Respondent

The respondent argued that even though the House of People was dissolved prior to its actual dissolution date, the Prime Minister and his Cabinet can continue to hold their respective offices as a ‘caretaker’. Without the Prime Minister and his Cabinet, the administration of the country would be disturbed. The respondent further argued that a similar convention is also followed in England and in the countries that follow the system of Responsible Government which was thoroughly discussed by the Supreme Court in detail in their judgement.

Laws involved in U.N.R. Rao vs. Indira Gandhi (1971)

Article 75 of the Constitution

Article 75(1), Article 75(2), and Article 75(3) of the Constitution: Other provisions as to ministers

The President appoints the Prime Minister and then the Prime Minister recommends the President to appoint other ministers in his Cabinet.
The ministers serve in their respective offices at the discretion of the President.
These appointed Council of Ministers are collectively accountable to the House of the People.

Article 85 of the Constitution

Article 85(2) of the Constitution: Sessions of Parliament, prorogation and dissolution

The President may, from time to time

Prorogue the Houses or either House;
Dissolve the House of the People.

Article 53 of the Constitution

Article 53(1): Executive power of the Union

The President holds the executive powers of the Union Government and can exercise these powers directly or with the help of officers subordinate to him, according to the Constitution.

Judgement in U.N.R. Rao vs. Indira Gandhi (1971)

While addressing the arguments of the petitioner, the Chief Justice took note of the judgement in Ram Jawaya Kapur vs. State of Punjab (1955) that the Indian Constitution is based on the British Parliamentary system. In this system, the executive develops governmental policies for the state. Once these policies are created, the executive converts them into laws through the legislative process. The executive can exercise this function as long as they enjoy the confidence of the House of People, i.e., the legislative branch of the State.

The Executive functions include the determination of these policies as well as the implementation of them through various executive bodies given under the Constitution. Thus, the primary functions of the executive include the creation of new laws, the maintenance of law and order in the state, the promotion of the social and economic welfare of its citizens, directing foreign policy and also looking after the overall administration of the State.

In India as well as in England, the Executive is controlled by the legislature and the same can be determined by the various articles of the Indian Constitution. Article 53(1) states that the executive power of the State is vested in the President of India and Article 75(3) clarifies that there shall be a Council of Ministers headed by the Prime Minister to aid and advise the President in exercising his executive functions under the constitution. Thus, it is clear that the President is the formal head of the executive and the real power lies in the hands of the Council of Ministers.

The same structure is also reflected in States, in which the President is replaced by the Governor or the Rajpramukh who is the nominal head of that State and the real power lies with the Council of Ministers, elected by the people through elections. Thus, the Supreme Court observed that the Council of Ministers, which enjoys a majority in the Parliament, holds virtual control over the Legislature as well as the Executive. The Ministers of Cabinet act on the principle of collective responsibility and decide important questions about the various policies of the State.

While convincing the Supreme Court, the appellant cited the case law of Sanjeevi Naidu vs. State of Madras (1970). They specifically referred to Section 68C of the Motor Vehicle Act of 1939, in which a power is given to the authority and can only be exercised by that authority. The authority in this case is the State Government which includes the Governor who will exercise this function with the help of the Council of Ministers. Hence, if there is an opinion required under this Section, then it must be formulated by the concerned ministers and not by anyone else. The appellant further cited the essence of the doctrine of ministerial responsibility in the cabinet form of Government and emphasised that functions that are cited by the law to the specific authority must be rendered by them and not by other organs of the State. This is not permissible under the constitution.

However, Justice Hegde, speaking on behalf of the Supreme Court, repealed the contention of the appellant, stating that the appellant is under misconception here regarding the principles of the Indian Constitution. According to the Constitution of India, the Governor is the Constitutional head of the State and real administrative power lies in the hands of the Council of Ministers. But it is not even possible for the Council of Ministers to exercise these functions alone. Hence, the Constitution, under Article 166(3), has given power to the Governor to formulate rules for easy administration of the affairs of the State Government. The Article further gives power to the Governor to allocate these business transactions among the ministers for more convenience. Even the Council of Ministers can advise the Governor to frame rules for their convenience and easy administration. Further, the Governor can designate a particular function to an official only with the advice of the Council of Ministers. Hence, the Council is responsible for every action to the legislature and this is the essence of joint responsibility.

One of the important contentions of the appellant is to read the word ‘shall’ as ‘may’ in Article 74(1) of the Constitution. However, the Court observed that the word shall in Article 74(1) is mandatory, just like the word ‘shall’ in Article 52 of the Constitution. If we interpret as the appellant suggests, then the President would not need the Prime Minister and the Council of Ministers to help and advise him on any matters. This idea of the appellant, if accepted, would completely change the basic concept of the executive given under the Constitution. Additionally, if we read the word ‘shall’ as ‘shall’ and not as ‘may’, only then do the other provisions related to the Executive under the Constitution make proper sense.

The Supreme Court further said that under Article 75(1), the Prime Minister is appointed by the President of India and then, with the help of the Prime Minister, the President appoints his Cabinet. And further, Article 75(2) says that these ministers, including the Prime Minister, enjoy their positions according to the wishes of the President. This means that the President has the power and authority to remove any Minister of the Cabinet, including the Prime Minister of India. However, in the present case, the President has not shown his desire to remove the Council of Ministers, including the Prime Minister, from their offices, even if the House of People is dissolved by him. Hence, holding the office of Prime Minister by Smt. Indira Gandhi does not violate any law or any Constitutional provisions.

Now, the Supreme Court discussed Clause 3 of Article 75 in detail, as it was a crucial part of the arguments of the appellant. The appellant had argued that once the House of People is dissolved by the President, then the Council of Ministers, including the Prime Minister, should resign and vacate their respective posts. The appellant further added that, after such resignation, the Union Government shall be handled by the President with the help of administrative services. The Supreme Court stated that, as we have discussed earlier, Article 74(1) is mandatory in nature and hence the President can not exercise his executive powers independently without the aid of the Council of Ministers. The Supreme Court reiterated that Article 75(3) talks about the concept of ‘Responsible Government’ i.e., that the Council of Ministers must have the confidence of the House of People.

Further, Article 75(3) remains in effect unless and until it is dissolved under Article 85 (2)(b) of the Constitution by the President. Once the house is dissolved under Article 85 (2)(b), the Council of Ministers loses the confidence of the House of the People. The Supreme Court also said that no one has claimed that the Council of Ministers loses the confidence of the House when it is prorogued. Therefore, Article 75(3) applies as long as the House of the People is not dissolved or prorogued. The Supreme Court further added that they are not concerned about the dissolution of the House of People under Article 85(2) where it has completed its 5 year term because those situations are handled under Section 14 of the Representation of People Act, 1951, i.e., holding a fresh general election for the purposes of creating the new House of the People.

Lastly, the Supreme Court affirmed their position and their interpretation of Article 75(3) of the Constitution by stating that if we read other articles of the Constitution, they fall in harmony with our interpretation. For instance, Article 77(3) talks about the allocation of business among the ministers by the President and Article 78 talks about the duties of the Prime Minister with respect to furnishing information to the President. This Article ensures that the President of India is properly informed about the decisions of the Prime Minister of India and the Council of Ministers from time to time.

Finally, the Supreme Court in this case dismissed the petition and there was no order passed regarding the cost.

Conclusion

In this case, the Supreme Court of India held that the Council of Ministers headed by Prime Minister Smt. Indira Gandhi will continue to hold their respective offices even after the dissolution of the House of the People. The Court further added that they shall act as caretakers of the administration of the country. The judgement affirmed that the President is the nominal head of the state and cannot exercise the executive functions of the Government alone, as the true power lies in the hands of the Council of Ministers, including the Prime Minister elected by the People of India. The Court cited the importance of the principle of responsible government by referring to the importance of the executive’s accountability to the Lok Sabha.

After the judgement of the Supreme Court, Indira Gandhi and the Council of Ministers continued their positions as caretakers until the new general elections were held. The Fifth Lok Sabha elections were held in March 1971, in which the Indian National Congress won and Indira Gandhi was reelected as the Prime Minister of India.

Frequently Asked Questions (FAQs)

What is the concept of joint responsibility given in the case of UNR Rao vs. Indira Gandhi?

The Supreme Court in this case discussed and reaffirmed the principle of joint responsibility under the Indian Constitution. It was further added that the principle of joint responsibility is fundamental to the functioning of the parliamentary form of government. The case held that the Prime Minister and the Council of Ministers are collectively accountable to the Lok Sabha according to Article 75(3) of the Constitution.

What was the judgement of the Supreme Court in UNR Rao vs. Indira Gandhi?

In this case, the Supreme Court of India held that the Council of Ministers headed by Prime Minister Smt. Indira Gandhi will continue to hold their respective offices even after the dissolution of the House of the People. The judgement affirmed that the President is the nominal head of the state and cannot exercise the executive functions of the Government alone, as the true power lies in the hands of the Council of Ministers, including the Prime Minister elected by the People of India.

References

DD Basu Commentary On The Constitution Of India (Book)
M P Jain, Indian Constitutional Law (Book)

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Hunoomanpersaud Panday vs. Mussumat Babooee Munraj Koonweree (1856)

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August 2, 2024