Some Disturbing Thoughts on Property of Nair Females

(By Adv. K.G. Balasubramanian, High Court of Kerala)

I was waddling in the diminishing depths of Marumakkathayam Law, trying to explain to an agitated lady why she had lost in the courts below. A thought, repressed in my “CIVIL” mind since the day my senior had exposed the “tip-of-the-iceberg” of socio-legal vagaries unleashed by Kerala Joint Hindu Family System (Abolition) Act to me, suddenly resurfaced. In the course of my relaxed reflections, I had to grudgingly distance myself from a proposition sustained on the strength of illustrious precedents revered till now, unacceptable now because of a “To be or Not to be” situation (For who would bear the whips and scorns of time, The oppressor’s wrong, the proud man’s contumely, The pangs of despised love, the law’s delay …). Article 372 and “Pankajakshi” (2016 (1) KLT 851 (SC) embolden me. I ask myself: which is the more importune date in God’s own country - 17.6.1956 or 1.12.1976, when Hindu Succession Act (HSA) and Kerala Hindu Joint Family (Abolition) Act were respectively enforced? Has not the Kerala Act been superfluous vis-à-vis Section 14 of the former as regards Nair females?

Article 13provides that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of that Part, shall, to the extent of such inconsistency, be void. Article 372provides that all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.

Section 4HSA provides that save as otherwise expressly provided in that Act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of that Act shall cease to have effect with respect to any matter for which provision is made in that Act and also that any other law in force immediately before the commencement of that Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in that Act.

Section 14(1)HSA provides that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Its explanation stipulates that the said “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance, or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. Vide sub-section (2), sub-section (1) shall not apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Section 6as originally enacted and Section 17 at all times recognized right by birth only within the sphere of intestate succession w.e.f. 17.6.1956. Amended Section 6 modifies (i) “right by birth”, (ii) excludes survivorship and (iii) devolution by intestate succession. In the context of right by birth, there is some difference between inheritance and succession. Right by birth in ancestral property is a legal incident stemming from ancient customs like Mitakshara, Dayabagha, Marumakkathayam etc. A coparcener or marumakkathayee cannot be denied that right whereas he/she can be denied the right to succeed to his/her predecessor’s property, by devise or deed. In other words, “right by birth” is an indefeasible mode of acquisition of right to immovable property. It is not by “succession” or “inheritance” as we normally understand.

Section 14 (1) was enacted to absolutely banish claims by anyone to any Hindu female’s any property. It created exclusivity, whether the holder follows Mitakshara or Marumakkathayam. This intention is clear when we look at Sections 6 and 7. “Property obtained by a Nair female towards her share on partition in her tarwad” comes under Section 14(1) and not under 14(2). While Section 6 as originally recognized exclusivity of coparcenary and Section 14 that of woman’s estate, the 2005 amendment roping in females as coparceners causes a very serious conundrum because it directly nullifies Section 14 vis-à-vis Mitakshara coparcenary. Needless to say, Section 14 is not otiose as regards Marumakkathayees.

The custom/usage that “property obtained by a Nair female towards her share on partition in her tarwad ceased to be her separate property on the birth of a child to her so as to destroy her absolute powers of disposal in respect of that property” is contrary to Section 14 read with Section 4. Going by the plain meaning of both Sections, the law that “property obtained by a Nair female towards her share on partition in her tarwad ceased to be her separate property on the birth of a child to her so as to destroy her absolute powers of disposal in respect of that property” ceased to be operative from 17.6.1956.

Precedents which hold to the contrary do not appear to have noticed the impact and effect of Sections 4 and 14 on absolute right of a Nair female.

1963 KLT 859- (overruled in 1967 KLT 430) - noticed that “ ………. it is a matter for serious consideration whether there is any compelling reason to hold that the share obtained on individual partition would not be the absolute property of the sharer” and that “In effect, S.39 of the Travancore Nayar Act of 1100 which corresponds to S.62 of the Cochin Nayar Act of 1113 has declared, that the share of a member, whether male or female allotted on tarwad partition, is alienable and heritable, and this is without any reservation, condition or limitation. In other words, such share constitutes his or her separate property descendible to the heirs on intestacy”. Doubtless, this principle had already found acceptance in Section 14.

In 1967 KLT 430, we find a clear statement (minority judgement) that “I have not considered the inroads made into the Hindu Mithakshara Law by the Hindu Women’s Property Act or the Hindu Succession Act as it is not necessary for the purpose of this case”. In 1993 (1) KLT 174, their Lordships were concerned“with Hindu Succession Actalone and so it is necessary to consider the provisions therein with special reference to marumakkathayees and to the extent it is necessary for this case”. Going by that decision, the Kerala Act vaporized Mitakshara and Marumakkathayam systems. True, going by its title, the Abolition Act purported to put an end to Joint Hindu Family System. That intention – not seen reflected in its body - was readily accepted. According to me, with due respect, the Abolition Act deserved a different, if not opposite, look.

My point is, the precedents on the point are per incuriam. It is not clear that Section 14 and its implications were noticed therein. Inept legislation has created an impasse.

1976 103 ITR 661 PHdeclares in no uncertain terms that “The Hindu Succession Act --------repealed all previous law relating to intestate succession whether textual, customary or statutory ----------------”. AIR 1991 SC 1654 dealt with overriding effect of the Act and declared that “in respect of the matters dealt with by the Act it repeals all existing laws, whether in the form of enactments or otherwise, which are inconsistent with this Act. The result is that immediately on coming into operation of the Act the law of succession hitherto applicable to the parties, by virtue of any text, rule or interpretation of Hindu Law or any custom or usage having the force of law ceased to have effect in respect of the matters expressly dealt with by the Act ”.

While AIR 1957 SC 434 says that “There is no doubt that by reason of the use of the expression ‘whether acquired before or after the commencement of this Act’ the section is retrospective in effect”, AIR 2000 SC 434 says that “The Act of 1956, incidentally is prospective in its operation and no element of retrospectivity can be attributed therein” and that “Incidentally, be it noted that the Succession Act of 1956 obviously is prospective in operation”. If Section 14 is prospective, it will create two classes of Nair heirs - those born before and after 17.6.1956. The former can claim benefit of right by birth under Cochin Nair Act etc., whereas the latter will be denied that benefit because of Section 4 read with Section 14.

On Section 14, AIR 1985 SC 1695 held that “The above provision is further protected by the express provision contained in clause (3) of Art.15, since it is a special provision enacted for the benefit of Hindu women”. Please read that along with ((2000) 2 SCC 139) that “……… legislations having socio economic perspective ought to be interpreted with widest possible connotation ……… Gender equality is one of the basic principles of our Constitution. ……………… as such it is a bounden duty and an obligation to honour the mandate of the Constitution in every sphere and interpretation which would go in consonance therewith ought to be had without any departure therefrom”.

1967 KLT 430held that“to reaffirm the old well established right rule might have the result of upsetting titles acquired on the faith of the new wrong rule, whereas to follow the new wrong rule might not have the result of upsetting titles, is not, I think, a valid consideration. To follow the new wrong rule would be to deprive children born after partition of their due”. I am forced to submit that the converse is truer, that a female ought not to be deprived of her due.

Dear Indian, H.S.A. (as originally crafted and now distorted), discriminates more between Mitakshara and Marumakkathayam schools generally and genders inter se particularly than that is sought to be abolished. It cannot be due to unavoidable reasons. It could be casus omissus. In view of the all India reach and overriding effect of HSA, the 2005 amendment adds flavor to the bone of contention that what was supposedly taken away by Kerala Hindu Joint Family (Abolition) Act from Mitakshara and Marumakkathayee families stands restored to Mitakshara families. My research did not reveal that the vacuum is saved either by any subsequent legislation. Please enlighten me.

In this era of laws intended to confer liberty, equality and fraternity, there is no reason to be tied down by “divine” laws divined by few and defined by fewer. We are venturing to consider temple/mosque entry and divorce on the touchstone of gender equality; the fascinating vista of Article 14 commands that personal law of all communities be recast, however inconvenient that may appear and whatever consequence may ensue.

Notable Excerpts By Hon’ble Chief Justice of India, Mr. Justice T.S. Thakur inState of Punjab v. Brijeshwar Singh Chahal

“Seen as important dimensions of the Rule of Law by which we swear, the law as it stands today has banished from our system unguided and uncanalised or arbitrary discretion even in matters that were till recently considered to be within the legitimate sphere of a public functionary as a repository of executive power. Those exercising power for public good are now accountable for their action, which must survive scrutiny or be annulled on the first principle that the exercise was not for public good in that the same was either mala fide, unfair, unreasonable or discriminatory. The expanding horizons of the jurisprudence on the subject both in terms of interpretation of Article 14 of the Constitution as also the Court’s willingness to entertain pleas for judicial review is a heartening development on the judicial landscape that will disentitle exercise of power by those vested with it as also empower those affected by such power to have it reversed if such reversal is otherwise merited.”

“The State Counsel appears for the State Government or for public bodies who together constitute the single largest litigant in our court system. Statistics show that nearly 80% of litigation pending in the courts today has State or one of its instrumentalities as a party to it. The State Counsel/counsel appointed by public bodies thus represent the largest single litigant or group engaged in litigation. Apart from adversely affecting the public interest which State Counsel are supposed to protect, poor quality of assistance rendered to the courts by State Counsel can affect the higher value of justice itself. A fair, reasonable or non-discriminatory process of appointment of State Counsel is not thus demanded only by the rule of law and its intolerance towards arbitrariness but also by reason of the compelling need for doing complete justice which the courts are obliged to do in each and every cause.”

“The States cannot in the discharge of their public duty and power to select and appoint State Counsel disregard either the guarantee contained in Article 14 against non-arbitrariness or the duty to protect public interest by picking up the best among those available and willing to work nor can the States by their action frustrate, delay or negate the judicial process of administration of justice which so heavily banks upon the assistance rendered by the members of the Bar.”

Christian Marriage Laws — Response to the Proposed Amendments

(By Sebastian Champappilly, M.A., LL.M., Advocate, High Court of Kerala)

There have been various proposals from different quarters for amendment of the laws relating to marriage and divorce among Christians in India. It appears that the Catholic Bishops Conference of India and the Standing Committee appointed by it to deal with the subject approved a set of proposals suggesting amendments of the Indian Christian Marriage Act, 1872 by incorporating Chapters V, VI and VII of the Special Marriage Act, 1954 and at the same time repealing the Indian Divorce Act, 1969. These proposals might with profit, be reviewed for the following reasons:—

1. The proposal for incorporation of Chapters V, VI and VII of the Special Marriage Act, 1954 into the Indian Christian Marriage Act, though attractive, may add to the woes of the Christians rather than solving them. This could be explained by an example. Incorporation of Chapter VI of the Special Marriage Act means incorporation of S.28 of that Act also. And S.28 provides for divorce by mutual consent. In other words there would be divorce by mutual consent among Christians after this amendment. But the concept of divorce is alien to Catholic faith. And divorce by mutual consent is again unheard of among Catholics. It is therefore such a matter of great concern for the community that one cannot simply accept this concept without proper consultation and deliberation. [1]

2. It may also not be a sound proposition to allow divorce by mutual consent among Christians for other reasons. Even to appease the progressive point of view, I do not think that such a provision should be explicitly incorporated. For, even at this juncture Christian spouses who mutually agree to seek divorce can get their marriage registered under Ss.15 and 16 of the Special Marriage Act and thus get the benefit of S.18 which provides that from the date of registration, the marriage shall be deemed to be a marriage solemnised under that Act. And such spouses can invoke this ground of divorce provided for in the Special Marriage Act. Thus Christian spouses who mutually agree to seek divorce can still adopt that path if they need divorce. [2] Yet in my opinion, a direct provision for divorce by mutual consent may give the impression that the Church approves of divorce. Incorporation of such a ground in. a law on Christian Marriage could perhaps be avoided. For this may send out the message that the Church still does not approve of divorce, not to speak of divorce by mutual consent. And hopefully the followers may not develop a tendency to fall back upon this provision.

3. The Indian Christian Marriage Act contains various provisions that are irrelevant and inconsistent with the present day realities. Some provisions are indeed out of tune. For example S.81 of the Act might be noted. It provides that certain Certificates of Marriages of Indian Christians solemnised in India be transmitted to England. Again the punishment prescribed under Ss.70 and 73 needs a fresh look. Ss.28, 30, 32, 37 and 64 deals with maintenance of Registers and registration. They need updating in the changed context. There are inconsistencies and irrelevancies in Sections like 64 and 37, 22, 70 and 73; 32 and 5; 54 and 5; 13 and 12; 13 and 17. The definition of "minor" under the Act and the Child Marriage Restraint Act, do not signify uniformity. Ss.68 and 74; Ss.39 and 71 of the Act are all in need of revision in one way or other.

The Christian Marriage and Matrimonial Causes Bill, 1990 forwarded by certain Christian Organisations, to the Hon'ble Prime Minister of India in 1992 is an attempt in the right direction. But it needs review and revision. To begin with, the definition of "Christian" in the Bill may not have adequate acceptance inasmuch as that proposal was already considered and rejected with reasons by the Law Commission of India in its 15th and 22nd Reports. I think the reasons are still valid according to many in the community. Again Clause 31 of the proposed Bill dealing with divorce by mutual consent may have to be deleted in view of what has been explained in paragraphs 1 and 2 above.

Clause 3 of the Bill needs re-drafting and Clause 4(iv) should be enlarged to include the words "personal law" so as to bring in the provisions of Canon Law on questions of prohibited degrees of consanguinity. This is not impossible in view of the decisions of the Supreme Court in Lakshmi Sanyal v. Sachit Kumar Dhar (AIR 1972 SC 2667) and of the High Court of Kerala in Leelamma v. Dilip Kumar (AIR 1993 Ker. 57 = 1992 (1) KLT 651).

Moreover, the provision for recognition of the declaration of nullity of marriage given by the Church as given under Clauses 26 and 27 may have the tendency, I am afraid, to bring the Eparchial Tribunals under the control of the Civil Courts. I think it is our right to assert that our personal law should be got recognised by the proposed legislation. The importance of this aspect could be gauged from the observations of the House of Lords in Regina v. George Millis (10 C & F 534) which runs: "a husband demanding a right due to him as a husband by the ecclesiastical law, must prove himself a husband according to that law". Conversely, a wife demanding a right due to her as a wife by the ecclesiastical law, must prove herself a wife according to that law. [3] This is very important in the current Indian context where the Muslim Law and Hindu Law have come to be recognised as the respective personal law of Muslims and Hindus.

In short, the proposed Bill requires changes on various aspects like recognition of personal law, declaration of nullity of marriage granted by the Eparchial Tribunal and other authorities under the personal law as valid, definitions, jurisdiction, punishments and registers from the point of view of the Christian Communities. Therefore, it is desirable to have a more detailed discussion or even a workshop arranged on this subject before finally giving the green signal to the proposed new legislation on Christian Marriage and Matrimonial Causes Bill.

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Foot Note

1.  It is pertinent to point out that the Law Commission of India had already rejected the proposal for inclusion of "divorce by mutual consent" after detailed deliberations. The situation has not undergone any change for a review. See the 15th and 22nd Report of the Law Commission of India.

2.  In this context it may not be out of place for me to mention that in a survey undertaken by me, as part of my Ph.D. Programme in the Cochin University of Science and Technology, recently 77% of the respondents favour divorce by mutual consent.

3.  This view finds support in the decision of the Supreme Court of India in Anantrac's case (1988) 1 SCC 530 which held that the validity of a marriage has to be determined by the personal law applicable to the parties.

Family Courts in Kerala

(By M. Stanley Fernandez, Advocate, Kochi)

Family Courts, set up to deal exclusively with family disputes and to render quick justice to women and children, still remain outside the reach of nearly half the population of the State. The three Family Courts in Kerala were constituted on 6th June 1992, but they cater to only six districts and create new problems of access to justice.

The Family Courts Act, 1984, aims to promote conciliation and settlement of disputes relating to all marriage and family affairs. S.3(1)(a) of the Act provides that a Family Court "for every area in the State comprising a city or town whose population exceeds one million" shall be established. In Kerala with a population of about 30 million, this has had the result that there are only three Family Courts, in Trivandrum, Kochi and Kozhikode. The first cover Trivandrum and Quilon Districts, the second Thrissur and Ernakulam, and the third Kozhikode and Wayanad.

The practical effect of the 1984 Act, is therefore, to restrict access to courts for Family Law matters. This coupled with the implications of restrictions on lawyers acting in such courts, as envisaged under S.13 of the Act, will not necessarily be to the benefit of women and children. One could even sec here a device to discourage people from bringing matrimonial disputes to courts, though it is not clear how this could be harmonised with the approach taken by Varghese Kalliath, J. in the recent case of Yousuff v. Sub Inspector of Police (1992 (2) KLT 866 at 871), where (he learned Judge rightly criticised a mother's recourse to self-help rather than the due process of law, clearly the Slate cannot have it both ways.

A close look at S.3 of the Family Courts Act, 1984 shows however that the State has only provided minimum facilities. So far and may easily (resources permitting we must assume) institute more family courts. In S.3(1)(b) we read that the State Government "may establish family courts for such other area in the State as it may deem necessary". S.3(2) also indicates flexibility in the operation of a system of family courts.

How the courts are going to work remains to be seen but it is already obvious that there is a case for establishing a Family Court in the 14 districts of Kerala. Barely established, the three existing Family Courts already have a heavy workload. For instance, in Kozhikode about 6000 cases were transferred to the Family Court from the 16 other courts that were previously handling them. New cases are daily being added to this file. The two other family courts are also found with similar problems.

The three Family Courts in Kerala, lack the infrastructural facilities be fitting for a court of law. The family court at Kochi had no seal of their own for more than a month and there are no amenities whatsoever in the Kochi court either for the lawyers or their clients. One would hope that these are merely teething problems of a new Institution.

In conclusion, the present establishment of Family Courts in Kerala appears unsatisfactory on several counts. A continuous and close review of progress will be an essential task, but it is inconceivable that in an area as complex and central as Family Law less infrastructural provision is possible. The case for the introduction of more Family Courts in Kerala, and better facilities for, them, is already apparent. It would clearly be in the best interests of Women and Children in the State that action is taken soon.

"An old Fossil Overstays in Law"

(Prof. Philip K. Thayil, Advocate, Ernakulam)

The Indian Succession Act, No. XXXIX of 1925 still, contains a provision, namely S.213 adversely affecting and positively harming Christians in flagrant violation and brazen flouting of Arts.14 and 15 of the Indian Constitution. Articles 14 to 35 deal with fundamental rights. The above section in the Indian Succession Act is in violation of the legal provision guaranteeing fundamental rights under the Constitution of India. The section reads as follows:

"Section 213. Right as executor or legatee when established:-- (1) No right as executor or legatee can be established in any Court of Justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will is annexed.

2. This Section shall not apply in the case of wills made by Mahomedans, and shall only apply -- (i) in the case of wills made by any Hindu, Budhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of Section 57, (ii) in the case of wills made by any Parsi dying after the commencement of the Indian Succession (Amendment) Act, 1962 where such wills are made within local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such wills are made outside those limits in so far as they relate to property situate within those limits".

What is intended by this section is that an executor or legatee cannot establish his right as executor or legatee in a Court without obtaining probate. But. Mahomedans' wills are exempted from the operation of this section. Even the wills of Hindus, Budhists, Sikhs or Jains are exempted from the application of this section, unless these wills relate to immovable properly in Calcutta, Bombay or Madras. But curiously enough Christian wills relating to any immovable property not only in Kerala built in Calcutta, Bombay or Madras are not at all exempted from the obligation of their being probated. Hindu, Budhist, Sikh or Jaina need not takeout probate for their wills relating to immovable property in Kerala whereas a Christian's will relating to immovable properly in Kerala or Bombay, Calcutta or Madras must have probate for establishing executors' or legatee's right as executor or legatee in a Court of law.

To take out a probate is not only expensive and time consuming but also, involves legal formalities and procedures in a Court of Law. So far as wills relating to immovable property in Kerala are concerned this obligation to take out a probate is cast on the shoulders of exclusively Christians alone. This is invidious distinction and contrary to the Articles 14 and 15 of the Constitution of India.

Section 213 of the Indian Succession Act is an anachronistic survivor from obsolete environment and it is very strange that such crude, antiquated law is not repealed although, the Constitution of India came into force decades ago.

This section is an old fossil that overstays too long to the mortification exclusively of Christians and to disgrace of democracy.

As regards Hindus this section applies only to those wills which are governed by the Hindu Wills Act (now Section 57 of the present Act). Therefore an executor or legatee cannot establish his right in a Court under such a will unless probate or letter of administration is granted. But such wills do not relate to immovable property in Kerala.

In the case of wills which are not governed by the Hindu Wills Act, e.g. (will executed in U.P., Kerala, Punjab or in the moffusil of Bombay or Madras Presidency) an executor (not being a Christian) may establish his right in a Court of justice without taking out probate. Can any law be more injuriously discriminative against Christians in a secular democratic State?

Section 213 read with S.57(a) makes it clear that where both person and properties of any Hindu, Budhist, Sikh or Jaina are outside the territories mentioned in S.57(a) the rigours of S.213 are not attracted. But even this concession is denied to Christians.

If a Hindu embraces Christianity at the time of his death, succession to his estate is governed by the Succession Act and any person basing his title under a will executed by such Christian cannot establish his claim without obtaining probate under this Section - Dwaraka v. Raj Rani, AIR 1932 Oudh 85 p. 87.

It is high time that such a Section (213 of Indian Succession Act) should be given a death blow to and buried down below never to rise again.

This Section remains on the statute book to the mortification of Christians and if not deleted to immortalise Indian democracy in infamy and disgrace.

The amendment suggested is the addition of the word "Christians" after the word "Muhomedans" in sub-section (2) of S.213 of the Indian Succession Act.