Power of Court to Summon Records from Income-Tax Department

Siby Mathew, Chief Editor, KLT

As early as in 1976 Shri P.K. Ravindranatha Menon wrote in 1976 KLT (Journal) 45:

"With the omission of S.137 and amendment of S.138 of the Income-tax Act, 1961,by the Finance Act, 1964, the declaration of confidential nature of records, the embargo against a court requiring a public servant to produce such records or to give evidence before it in respect thereof and the prohibition against a public servant making a disclosure of any particulars in the said documents have all been totally omitted and the provisions of the Evidence Act came into play with effect from April 1,1964, and the courts trying a suit can call for such records from the income tax department, if it is satisfied that the circumstances of the case justify such summoning and if it is in accordance with the provisions of the Evidence Act".

The above view of Mr. Menon was against the view of Full Bench decision of the Delhi High Court, reported in (1974) 95 ITR 34. (Trilok Chand Jain v. Dagiram Pindi Lal).

In a recent decision rendered on 4-2-1992 and reported in (1992) 194 ITR 228, the Supreme Court, reversing the Full Bench decision of the Delhi High Court in Part, held:

"The repeal of S.137clearly disclosed the legislative intent that it was felt by the legislature that it was no more necessary to keep the records of assessment by the Income-tax Department relating to an assessee as confidential from the courts and the bar with regard to the production of any part of the record was removed in so far as courts were concerned. The finality which has been attached to the order of the Commissioner under S.138(1)(b) is, thus restricted to the cases where the information etc., as contemplated by the Section is called for by any person other than a court of law by a judicial order. Section 138(1)(b) does not affect the powers of courts to require production of documents filed by an assessee before the Income tax authorities after 1st April, 1964, relating to assessment proceedings for the assessment year 1964-65 onwards or the assessment records of such years or the disclosure of any information therefrom to them, in a case pending before the court when the court, by a judicial order, requires the production of the record considered relevant by it for decision of a case pending before it." (from the head note at page 230 of 194 ITR 228).

About Arrest and Medical Examination of a Suspect for Drunkenness

(Joseph Thattacherry, B.Sc, B.L, Advocate, Changanacherry)

Liquor shops selling different varieties of beverages are sprouting like mushrooms throughout Kerala. Spurious arrack is available even in pen shops at very low price. The number of persons frequenting liquor shops are increasing by leaps and bounds. No wonder cases u/s. 51 (a) of the Kerala Police Act are swelling in courts. So a discussion on the following point seems relevant and appropriate.

1. Can police arrest without warrant a person suspected of having committed an offence u/s 51(a) of the KP. Act?

2. Has the medical officer any authority to examine a person for inebriety if he is not brought under arrest, and without a request of a police officer not below the rank of a Sub-Inspector.

3. Can the court enter a finding that a person is under the influence of drink without blood and urine test and if so under what circumstance?

Under Art.20(3) of the constitution no person accused of an offence shall be, compelled to give evidence against himself. To prick a person with a needle in order to extract blood from him without his consent, is an offence under the Penal Code. In order to overcome these difficulties, by the Amendment Act 2 of 1974 of Cr. P.C, S.53 was newly introduced. That section being an exception to the general law, it is well settled that it has to be strictly complied with. For better appreciation, S.53(1) of Cr. P.C. is extracted below:

S.53(1). When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as Is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

It is clear, that unless a suspected person is arrested and produced before a medical practitioner, who satisfies the required qualification prescribed in the explanation to S.53(2), with a requisition from a police officer not below the rank of a sub-inspector, the medical practitioner has no authority to examine the person of the suspect. An examination if conducted without satisfying the above 2 pre-conditions viz. arrest and requisition from proper person, the examination if conducted is illegal and the certificate if any issued is ab initio void and hence inadmissible in evidence.

An offence under 8.51(a) of the K.P. Act is punishable only with imprisonment which may extend to one month and with fine which may extend to Rs.200/-. It comes under the classification of offence against other laws, under schedule II to Cr. P.C. As punishment for the above offence is imprisonment for less than 3 years only, it is not a cognizable offence as per that schedule and hence a police officer has no authority to arrest without warrant a person suspected of having committed an offence u/s.51(a). Any police officer is empowered to arrest without a warrant any person accused of an offence u/s.48 of the K.P. Act even though the punishment prescribed therein is only imprisonment not exceeding 3 months and fine. As such an authority to arrest is conspicuously absent and consciously omitted in S.51(a),the only irresistible conclusion is that a police officer has no authority to arrest without a warrant a person suspected of the commission of such an offence. Support for the above view can be had from a recent decision of the Madras High Court reported in 1991 Crl. L.J. 2416. It was a rape case. Potency test of the accused was found necessary for investigation. The accused was, under S.438 Cr. P.C. released on bail in the event of arrest. So it was contended on behalf of the accused that S.53 contemplates subjecting a person arrested alone for medical examination. The court accepted the contention that only a person arrested could be examined u/s 53 Cr. P.C, but held that a person released on bail is still considered to be detained in the constructive custody of the court through his sureties. It also held that he is notionally in the custody of the court and hence continues to be person arrested as a charge of commission of an offence and hence he could be examined. However it is clear from the above decision that in order to invoke powers under S.53 Cr. P.C. the accused should be a person arrested whether still under custody or released on bail and under the constructive custody of the court. Offence punishable u/s.51(a) of the K.P. Act being only a non-cognizable offence, the police could not arrest the suspect without warrant. So he shall not be subjected to medical examination, unless he is arrested under a warrant issued by a competent court.

Section 54 Cr. P.C which is newly introduced, gives a valuable right to the accused to request the magistrate to direct the examination of the body of the accused by a medical practitioner if it will afford evidence which will disprove the commission by him of any offence or which will establish the commission by other person of any offence against his body. That is a statutory right intentionally given to the suspected person for his benefit. But in order to avail of the benefit under the sections the suspect should be a person arrested, because the section begins with the words "when a person who is arrested whether on charge or otherwise". So a person accused of an offence u/s.51(a) of the K.P. Act, because he is not arrested and produced before Magistrate, he loses his right to challenge the correctness of the drunkenness certificate issued by a medical practitioner, as directed by the Magistrate, at his request. Similar right to prove his innocence by challenging the result of examination by the public analyst is given to the accused in a food adulteration case, by sending the sample of food for analysis to the Central Food Laboratory. So Section 54 Cr. P.C. a valuable right intended for the benefit of the accused will become otiose so long as he is not arrested. Hence the necessity for arrest. Thus it is abundantly clear that unless a person is arrested in execution of a warrant of arrest, S.53 and 54 Cr. P.C. have no application in a case u/s 51(a) of K.P. Act and the medical practitioner has no authority to conduct an examination of the person.

The second pre-condition is usually ignored in the sense that in vast majority of cases the request for examination is made by head constables. The legislature in its window, thought it dangerous or unwise or unhealthy to leave it to him and fancy of a police officer below the rank of a Sub-Inspector of Police to make the request. It is the subjective satisfaction of a superior police officer of the existence of a prima facie case of inebriety against the suspect, that the legislature wants and nothing short of that. It is to protect and safeguard the interest of citizens from unnecessary harassment and prosecution that, the above pre-condition was introduced and it has to be strictly complied with. So unless the request comes from an officer not below the rank of a Sub-Inspector, the medical practitioner gets no jurisdiction to examine a suspected person brought before him.

The next question for consideration is whether a blood and urine test is necessary to prove that, one is under the influence of drink. A ruling of the Division Bench reported in 1991 (2) KLT 570 deals with the point. It only says that neither the section nor the decision of the Supreme Court yields the inference that a charge of drunkenness cannot be found unless blood or urine is examined and that the considerations indicated by the statute are relevant considerations in determining the issue. It does not say that those considerations are conclusive proof of the fact in issue. It only says that courts shall not insist upon blood or urine test if the charge of drunkenness is proved otherwise by clinical examination as specified in the rule under the K.P. Act. That rule prescribes a particular form for the "certificate of drunkenness" after conducting all the examinations enumerated therein. If the results of all those examinations turn positive the court may reach a conclusive that drunkenness is proved. Invariably in all the drunkenness certificates issued by medical practitioners some columns may be left blank, some findings normal some partially impaired or lost and some positive. To the last query, whether urine and blood taken and preserved for chemical examination, their answer is not taken either because of non-co-operation of the accused or because of lack of facilities". That exactly is one of the reasons which persuaded their Lordships in the above case to hold that urine or blood test is not essential to find a charge of drunkenness, because in para.6 of the judgment it was observed, "If the state of law is such that a conviction cannot be entered except on the basis of the tests indicated by the learned judge then any accused who refuses to subject himself to the tests can evade the process of law. That is what the accused in this case did". It appears that the last clause in S.53 Cr. P.C. viz. "and to use such force as is reasonably necessary for that purpose" was not brought to the notice of their Lordships. So long as the statute empowers the medical practitioner to seek the assistance of any number of persons over and above the police officers who escort the accused to use necessary force it is not difficult to take sample of urine or blood. Hence that reasoning appears to be not sound.

Coming back to the clinical observations only as proof of drunkenness the apex court in 1972 SCC (Cvl) 178 observed "unsteady gait is often caused by nervousness and smell by itself is not conclusive of drunkenness". The rule under the K.P. Act is a true copy of the scheme of medical examination contained in "The Drinking Driver", a revised report of the Special Committee of British Medical Association. In para.2 of the report it is stated "The doctor should examine the suspected person thoroughly and keep full notes. He should also exclude any pathological condition which may stimulate or exaggerate alcoholic intoxication as, apart from odour of breath there is no single symptom or sign due to consumption of alcohol which may not also be found in some pathological states". The chief pathological conditions which stimulate alcoholic intoxication are enumerated therein. Here no medical officer produces before court his notes prepared at the time of examination of the suspected person along with the certificate. Even the handwriting (N.M.W) is not produced. When in the certificate several faculties are shown as partially impaired and partially lost and there is no evidence on record as to the degree of impairment or percentage of loss of such faculties, how could the court enter a finding that the examinee was under the influence of drink. Is the subjective satisfaction of the doctor alone sufficient for conviction u/s.51(a)? Should not the judicial officer be satisfied and should he not get sufficient materials for the exercise of his judicial discretion so as to come to a conclusion of his own. So unless it is conclusively proved to the satisfaction of the court that a person was under the influence of drink it is not safe to convict a person and put him in prison.

When urine or blood test at the laboratory is a sure and conclusive proof for intoxication and the degree of intoxication, one fails to understand why the Division Bench does not insist upon it. N.J. Modi in his treatise on Medical Jurisprudence and Toxicology, twentieth edition says "Evens and Jones had shown that the concentration of alcohol in urine is so precise that it gives an accurate indication of the minimum quantity of alcohol consumed." Modi further says that for better accuracy two samples of urine are taken at about 15 minutes interval to avoid possible error. Examination of urine for determination of alcohol is more advantageous than that of blood in as much as the alcohol concentration in urine is more constant than in the blood. Besides, it is much easier to obtain a sample of urine than that of blood for examination. Again Modi says that absence of alcohol in urine definitely rules not drunkenness and the amount of alcohol found gives a definite idea of the amount ingested by the person. If the urine is collected in two or three clean and sterile bottles with a preservative and opportunity given to the suspected person to get it examined at some other better equipped laboratory then the one where in it was tested u/s.54 Cr. P.C. justice could be meted out and justice will seem to be done. Under the Bombay Prohibition Act 1949 and Bombay Prohibition Medical Examination Blood Test Rules 1959 made under the above Act it is necessary that the accused should be medically examined and his blood be collected for being tested for determining the percentage of alcohol therein. So with utmost respect to their Lordships it is submitted that the ruling reported in 1991 (2) KLT 570 needs reconsideration. For a conviction u/s.51(a) of the K.P. Act sentence of imprisonment without proof beyond doubt of drunkenness will be too hard.

The menace caused to the society owing to disorderly behaviour under the influence of drink is insignificant when compared to the menace of increasing road accidents caused by drunken drivers. In all western countries if a driver of vehicle is suspected of having consumed alcohol in excess of the prescribed limit the police conduct breath test by blowing balloon and charge them if found guilty. Here also driving or attempting to drive a motor vehicle under the influence of drink or drug is made an offence. But since there is no facility for breath test, or some other device for quick test such drivers go up and down the roads fearlessly under the very nose of police officers. Road accidents are alarmingly on the increase and in most cases the accidents are due to drunken driving. So it is high time the government should take urgent steps to remedy the evil by roadside examination of drivers for drunkenness and further subject those found positive to clinical and urine or blood test, and by charging those found guilty.

A Critical Note on S.5 of the Kerala Buildings (Lease & Rent Control) Act, 1965

(E.K. Ramakrishnan, Advocate, Payyannur)

Section 5 of the Kerala Buildings (Lease & Rent Control) Act 1965 empowers the Rent Control Court to fix the fair rent of the tenanted building. It is vividly stated in the latter portion of S.5(i) that "the fixation of the fair rent shall be after holding such enquiry as the rent control court thinks fit". But at the same time S.5(2) confines the role of the rent controller by saying that "in fixing the fair rent, the court shall take into consideration the property or house tax register of the local authority within whose area the building is situated". Since clear guidelines are laid down in S.5(2), what is the scope of the enquiry contemplated in S.5(i)?

True, the Kerala Buildings (Lease & Rent Control) Act, 1965 is a legislation intended for the benefit of the tenants i.e. regulation of allotment of houses, fixation of fair rent, prevention of unreasonable eviction of tenants etc. So while exercising the powers under this Act, the paramount consideration should be the interests of the tenants, based on the principle of social justice.

Fair rent is not defined in the Act. But S.5(2) and (3) are the guidelines to determine the fair rent of a building. Is it fair to determine the fair rent wholly relying on the property tax or house tax fixed by the local authority?

Being a judicial body, the finding/order of the rent control court should be based on merits, by relying on the cogent and concrete evidence available before it. But while fixing the fair rent of a building, the rent control court is prevented from applying its judicial conscience due to the restrictions imposed by S.5(2) of the Act. In short it has been constrained to do some arithmetical calculations. Is it wrong to consider the investment made by the building owner for constructing the building for fixing fair rent? No doubt, the location of the building, the condition of the building, the access to it, the amenities provided in it etc. are very important for fixing the rent of a building. In Arunachalam Pillai v. Natarajan (1968 KLJ 614), the importance of the above factors are dealt with.

Similarly in Devassy v. Joseph (1969 KLT 541) also, his lordship Justice V.R. Krishna Iyer (as he then was) held that, "among other relevant facts the court may have due regard to the cost of construction and maintenance, the taxes and rates payable by the landlord and so on" for fixing fair rent. But in the same ruling it was held that the fair rent should not exceed by more than 15% the monthly rental forming the basis of house tax computation. The concept behind this ruling was that rents are liable to be enhanced not due to the scarcity of rented buildings, but because of natural causes affecting rents. But the 15% enhancement suggested in the section is not always sufficient to cover" those natural causes affecting rents".

Rule 4 of the Kerala Panchayat (Building Tax) Rules, 1963 deals with the determination of annual rental value of a building and R.5 of the above rules empowers the executive authority to summon the owner or occupier of the building to furnish returns of the rent payable for the building, the cost of erecting the building and measurement of the land etc. in order to assess the building tax. Similar provisions (S.100 and corresponding rules) are incorporated in the Kerala Municipalities Act, 1960 also. Unfortunately our local authorities are based on imaginary figures somehow estimated by technically unqualified staffs. Even if the provisions are strictly complied with, in order to evade excess tax burden, some fabricated returns will be submitted by the building owners. The ultimate result would be the preparation of a wrong building tax register. By virtue of S.5 of the Kerala Buildings (L & R) Act, the rent control court has been constrained to rely wholly on this illogic and fallacious building tax registers being maintained by local authorities, without applying its independent judicial mind. So the "failure of the system" affects the judiciary also.

The rent of a building as well as the judicial proceeding for fixation of rent should be fair. In a pending petition under S.5, the parties to the petition can easily speculate the maximum extent of rent to be fixed by the rent control court as fair rent. This is against the very spirit of judicial system.

Being a judicial proceeding, the fixation of fair rent should be based on the merits of each case. The investment made for constructing the building should be a vital factor for determining fair rent. This can be assessed by invoking the powers under Order 26 Rule 9 of CPC.

The precious time of judiciary is not intended for doing some arithmetical calculations based on the illogic building tax register. So it is better either to relieve the rent control court from the duty of fixing rent or to suitably amend S.5, thereby empowering the rent control court to fix the fair rent in a reasonable and effective manner.

The Battered Woman Syndrome

(T.G. John, Advocate, Trichur)

Of recent interest is the ruling of an English Court where an Indian woman, Kiranjit Ahluwalia who was convicted and sentenced to life imprisonment for the murder of her husband was acquitted on retrial. The court of appeal quashed her conviction and ordered retrial in the light of fresh evidence regarding her 'state of mind'. At the retrial after hearing her evidence about the abuse she had suffered at the hands of her husband, the time she had served in jail was considered sufficient since the court found that she had committed the offence irrationally due to the strain of living with a violent man!

In May, 1989, Kiranjit poured a tin of petrol over her husband while he was asleep and set fire. The husband was reduced to ashes. It was in evidence that she was constantly beaten up by her husband, sometimes with his waist-belt. On one occasion she was pushed from the stairs. The husband, it was reported, was a sadist and constantly inflicted brutalities on her for years continuously. The retrial was ordered when the women's rights Campaigners took the matter up.

The above judgment gives a new dimension of defence for lawyers in murder cases. Under what head does this new exemption come? It cannot be grave and sudden provocation because she had been undergoing it for so many years. For a layman this criminal act of Kiranjit can be understood only as a retaliatory measure. She had various other courses open to her. She could have reported the matter to the police, to her relatives or even taken steps for a divorce. But refraining from all these, she stoops to murder her husband in the most grotesque fashion. The taw and the lawyer fondly terms it as 'The Battered Woman Syndrome'" If this principle is recognised, it can very well apply to other specific categories also. If a married man has to suffer long from his nagging wife, and after several years, of suffering, he kills his wife, the action can safely be called 'Battered Man's Syndrome'. And again if an employee who had to suffer for long, for number of years under his cruel employer, finally murders him can it be 'Battered Employee's Syndrome'? In short the trend will be to put every murder or manslaughter under a particular 'Syndrome'.

'Syndrome' only means 'a symptom, characteristic or set of symptoms or characteristics indicating the existence of a condition or problem'.

x    x          x          x          x          x          x          x          x

Just think about a job where you are required to wear not only a long gown, neckbands and a sash but also a bulky horse hair wig. That is the uniform most British Judges have worn since the late 17th century - seeming with pleasure and at the tax payer's expense (as much as Pounds 7000 per costume). Additional ceremonial garments including knee breeches, gold buckled shoes and a fur trimmed robe are worn on special occasions. Britain's new Lord Chief Justice, Lord Taylor has set out to answer the question. 'Is this really necessary for the administration of Justice?' Many Britons maintain that the costumes only encourage judicial arrogance and widen the gap between the public and the so-called public servant. Lord Taylor and the Lord Chancellor-Lord Mackay has issued this August, a consultation paper asking interested parties from lawyer to police officers to speak openly their views about the above issue.

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.