The Family Courts Act, 1984 - A Critical Appreciation

(By R. Lakshmi Narayan, Advocate, Ernakulam)

Family is the basic unit of the Society. Formation of the State and its evolution can be traced out from this small unit called Family. Man is a social animal. Being a social animal, he respects society, bound by the relationships created by the society and governed by rules framed by the society.

The first association created by man may be his family. This association is necessitated by the various factors like inter-dependence and personal security. So the family, as a basic unit of the society, has to be protected and preserved. For this, the relationships between the members of the family has to be regularised in order to keep a balance. For that purpose, the instrument of law is the only solution.

It is quite natural that the relation between members of family may strain due to ever so many reasons. So the law, as a protector of rights, and as an instrument to enforce duties arising out of matrimonial bond, gain significance. By applying law, the right and duties are enforced and then imbalance in family relations are settled.

For the settlement of dispute between the members of a family, there should be a procedure. The procedure must be effective and speedy one. Otherwise the imbalance in the family unit may bring trouble to the Society as a whole. So administration of justice in this field needs a special care. Taking into consideration of this special character of family and its significance in the society, the Government has come forward to enact a special Act which constitutes Family Courts in order to render speedy justice.

The word family means household or parent and their children who live in one house. The Family Courts Act of 1984 has not defined the word 'Family'. But going' through the provisions contained in that Act one can gather the meaning. Family in the context mean those persons who are bound by the matrimonial bond. Even though the Act has been passed as early in 1984, the implementation has started this year. So it will not be out of context to analyse some of the important provisions in the Act and to evaluate the practical side of its implementation.

Before the implementation of this Act, Civil Courts were exercising the jurisdiction over this subject. Now the Civil Courts are no more having the jurisdiction to entertain any case which falls within the four corners of S.7 of the Family Courts Act. Power of the Magistrates Court, under S.125 Cr. P.C. also has been abrogated and transferred to the Family Court.

S.7 of the Act deals with the jurisdiction of the Family Courts. It reads as follows:

"S.7-JURISDICTION-(1) Subject to the other provisions of this Act, a Family Court shall --

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation:-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:--

(a) a suit or proceeding between the parties to a marriage for a decree for nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order of injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise--

(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973, (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any other enactment.

A mere reading of this section is enough to understand that every possible dispute between the parties to a marriage and those things which arise out of said marriage will come under the purview of Family Court. A dispute between parties to the marriage as regards their property will come under the purview of this Act even if such dispute is not arising out of matrimonial bond. So it can be seen that the Parliament has entrusted a difficult task on the shoulders of the Family Court. To discharge this, necessary powers also are granted. Now the only thing which remains to be seen is its working. The question at this juncture is whether it will be a success or not in fulfilling the object of the Act.

Under S.9 of the Act, the court is duty bound to make efforts for settlement of dispute. It should assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit. S.9(2) also empowers the Court to adjourn the case if there is a reasonable possibility of a settlement between the parties. The section maybe misused by the parties to drag the proceedings. S.11 directs the court to conduct the proceedings in camera if the court so desires or if either party so desires. This provision may sometime encourage the parties to initiate unnecessary proceedings without the fear of public opinion.

S.13 says that no party to the-suit before a Family Court shall be entitled, as of right, to be represented by a legal practitioner. This may hamper speedy disposal because parties are not familiar with the provisions of law or well settled position of law. They may not be in a position to convince the court, their points. If the parties are compelled to plead their case personally there is every chance of aggrevating the disputes, because unnecessary allegation may be levelled against each other by the influx of emotions. Appointment of Advocates as amicus curiae is no substitute for engagement of lawyers by the parties. The Family Courts (Kerala) Rules of 1989 permits the parties to have legal advice with the permission of the court. Even then the right to have legal advice depends solely at the discretion of the court.

As per the Act there shall be Counselling Centre attached to each Family Court. Principal Counsellor is its head. The court, after the appearance of the party, should direct them to the Counsellor, for the purpose of counselling. The Counsellor has enormous duties. He has to help the parties to arrive at a reconciliation. He is entitled to pay home visits to the homes of any of the parties. He can interview relatives, friends and acquaintances of parties. He can seek information from the employer of any of the parties. He can refer the parties to an expert in any other area such as medicine or psychiatry. After completing the above mentioned process he should submit a report to" the court. If the matter is settled the court will pass a decree according to the terms of settlement arrived at before the Counsellor. The Counsellor has a right to supervise custody of children and supervise, guide or assist reconciled couples. One is afraid whether such procedure will be helpful for a speedy disposal of the cases.

After getting the report from the Counsellor, the Chief Ministerial Officer shall call a meeting of the parties to fix a date of hearing of the petition. The Chief Ministerial Officer after consultation should fix a date and time of hearing before the court. The court after this takes evidence and decides the case. So it is a lengthy procedure which consumes much time. Even though the Act is meant to avoid technicality of procedure 5 as in the ordinary civil court, the object may not be attained as long as the lengthy proceedings before the Counsellor, Chief Ministerial Officer and" the court, are contemplated. Thus unavoidable delay in this procedure may aggravate the strains between the parties and stand in the way of just solution of problems. The parties in these type of cases are coming to the court only after availing all possible mediation and counselling through the well wishers, friends' and relatives. So they may not be interested to settle their dispute through Counsellors under the Act, who are totally strangers to the, parties and who have no special interest in them. This will only help to delay the adjudication of dispute.

Now only 3 Courts are established under this Act in the whole State of Kerala, i.e.,... in Trivandrurn, Ernakulam and Calicut. So the difficulty faced by the litigants in other Districts in Kerala is apparent. They will be put to difficulties until courts are established in their own Districts under the Act. Until then it will be better if the civil courts are empowered to continue their jurisdiction over these matters covered by the Family Courts Act.

The Preamble of the Act reads as follows:--

"An Act to provide for the establishment of Family Courts with a view to promote conciliation in and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith".

When a special Statute is enacted it should be for removing the defects and difficulties that existed in the general law or procedure. If that aim is not achieved, the special enactment is of no use. So the Act as it now stands is facing a big challenge in the province of practicality. Only time can tell whether it succeeds or not in attaining its goal enshrined in the Preamble of the Act.

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.

Advocates and Consumer Protection Act, 1986

(E.K. Ramakrishnan, Advocate, Payyannur)

Will advocacy come under the purview of Consumer Protection Act, 1986?

The subject matter of a complaint before a Consumer Court may be (1) unfair trade practices adopted by a trader, or (ii) defective goods sold by the trader or (iii) deficient service rendered to a consumer or (iv) excess price charged by the trader. (Sec. 2(1)(c) -- Definition of Complaint).

Any person who hires any services for consideration is a consumer under this legislation. And if he feels that the service provided to him is deficient, he can approach the consumer court for redressal of his grievances. Since advocacy is a service, it is high time to think over whether it will come under the purview of CPA 1986.

S.2(1)(o) of the Consumer Protection Act 1986 defines service as "service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service", i.e. except free services and contract of personal service all other services will come within the ambit of CPA 1986.

Of course, ours is not a free service. Then the next question is, is our service a contract of personal service? If the answer is negative, definitely the services rendered by an advocate to his client will come within the scope of service as defined in S.2(1)(o) of CPA 1986.

A wide discussion is required on this point especially in the light of the decision rendered by the National Commission on M/s. Cosmopolitan Hospitals and another v. Vasantha P. Nair (1992 (1) CPJ page 302). It was a case between hospital authorities, on the one side and the deceased patient's relatives on the other side. The hospital authority and the doctor disputed the very maintainability of the petition on various grounds. The important among them are that, their service to the patient is a contract of personal service which is an exempted category of service under the CPA 1986 and because their profession is covered by the Indian Medical Council Act 1956, which provides a complete code of conduct and the said Act has not been superseded by the CPA 1986, the provisions of the latter Act cannot have any application to members of the medical profession.

But after an elaborate discussion on the point and various case laws, the National Commission dissented with the contentions of the doctors and held that as a professional service, it is not a contract of personal service and so it will come under the service defined in the CPA 1986. On the issue of Medical Council Act 1956, the National Commission held that in that Act there is no provision for the protection of the interest of persons who may have suffered on account of any negligence or deficiency in the service rendered by members of medical profession and so the provision of the CPA 1986 are applicable to the disputes concerning deficiency in the service rendered by hospital and the members of the medical profession also.

The National Commission was considering the appeal filed by the Hospital authorities and ultimately fully agreed with the decision taken by the State Commission (Kerala). While discussing the various aspects of the above mentioned case, the State Commission held that like the service of a lawyer, the service rendered by the hospital and its doctors was basically professional service and hence it will be incorrect, infelicitous and even crude' to call the sophisticated high class professional service as 'Personal service'. Agreeing with the observations of the State Commission, the National Commission opined that "we agree with the terse observations of the State Commission that while a medical officer's service may loosely be called personal, it will be incorrect, infelicitous and crude to describe it as personal service. A contract of personal service involves a master and servant relationship which is wholly different from a medical doctor-patient relationship and in our opinion it will be totally wrong to call the service rendered by a medical doctor to his patients as 'personal service' coming within the exempted category mentioned in S.2(1)(o)".

In short, like the services of a lawyer, the services rendered by the Hospital and its doctors are coming under the definition of service described in S.2(1)(o) of CPA.

It is very difficult to agree with this proposition. While engaging an advocate to conduct a case, the client is making a contract with the concerned advocate. As a fiduciary relationship based on trust and confidence, it is a personal service. Though it is a professional service, unlike doctors the relationship between the lawyer and client is fully personal. Moreover, if one advocate wins the case, his opponent is bound to lose. That being the situation, if the defeated client approaches the consumer court levelling wild allegation like deficiency, laches, negligence etc. against his advocate's service, then there will be no rescue for advocates, except to conduct their own cases before the consumer courts.

But at the same time, it is very relevant to note that as in the case of the Indian Medical Council Act, the Advocates Act, 1961 also does not contain any provision for the protection of the interests of persons who may have suffered on account of any negligence or deficiency in the service rendered by advocates. So this lacuna is to be filled up by appropriate amendments. Otherwise the losses suffered by the "defeated" clients will remain unconsidered.

A Critical Note to "Legal Profession — Some Restrictions" –

1991 (1) KLT Journal Page 29

(By P.S. Ramalingam, Advocate, Calicut)

The following criticism is highly warranted especially because of the unconstitutional suggestions put forth by the learned writer. Of course the over crowding of advocates is one of the problem which beset she legal profession and there are effective and viable measures for lessening the same, which I beg to suggest hereunder. But inducing measures to lessen the crowd as suggested by the learned writer cannot be entertained at all for the reason that they are violative of the provisions of Indian Constitution.

It is true that the legal profession which is NOBLE in all sense, as it is used to be addressed in comparison to other professions, is a prestigious one for upholding the principles of democracy and legal rights of a human being as enunciated under the Indian Constitution and the laws framed thereunder.

The suggestions Nos.2 to 5 posed by the learned writer are totally unconstitutional, arbitrary and illegal thereby curbing an individual's freedom of right to practice a profession of his own choice as envisaged under Act 19(1)(g) of the Indian Constitution.

It is true that the legal profession is one which requires total commitment and dedication by oneself apart from perseverance and intellectual acumen. But the suggestion that only those with at least a second class LL.B. degree should be allowed to be enrolled as Advocates cannot be countenanced at all. The minimum qualification prescribed for competing to judicial service is also an LL.B. degree coupled with a prescribed period of practice. No where a class minimum is prescribed. Apart from that securing an academic distinction has nothing to do with practising profession. What is required initially is only a basic knowledge in law coupled with complete dedication and commitment to profession which is a sine qua non. What is contemplated by the legal education in law colleges is only to impart basic knowledge in law before one takes to the profession. There are so many young lawyers who have no academic distinctions coming up in the profession and at the same time, most of the academic distinction holders are unable to represent properly before courts and utter a syllable when any queries arc put from the bench regarding the file which they represent. So there is no merit in suggesting that only person with atleast a second class LL.B. degree should be allowed to be enrolled as Advocates.

Likewise it is totally unconstitutional to suggest prescribed limit to the number of Advocates to be enrolled in a year, increasing the enrolment fee from Rs.250/- to Rs.1,000/-, fixing age limit etc. because that will be placing unnecessary fetters in ones freedom of right to practice a profession of his choice which will be further manifested from the reported ruling in Abdul Azeez v. Alappuzha Bar Association - 1992 (2) KLT 443).

It was a case wherein petitioners who are retired government personnel started practising the profession in Alappuzha Bar getting themselves enrolled subsequently. A resolution was passed by the Alappuzha Bar Association expelling the petitioners from the membership in Bar Association which was brought to challenge by the aggrieved persons.

In that case His Lordship Justice P. Balanarayana Marar had observed that "Members of the legal profession occupy a high status and carry high responsibilities. From them a much higher standard of conduct and caution is expected. They are not only the agents of the persons who engaged them in a case but are also officers of the court expected to assist the court in the administration of Justice by all means in their power." The learned Judge had further observed that "Petitioner may have been called to the profession after service of the State Government or the Central Government or other authorities. That should not have been taken as a disqualification to practice the profession nor can their right be denied for the reason that the professional prospects of other advocates are adversely affected by their entry."

Now 5th and the last suggestion made by the learned writer is regarding placing restrictions in accepting number of briefs, is something ridiculous. Accumulation of briefs is something which relates to the ability, experience and intellectual capacity of a person. It is not that much easy to accumulate briefs as is stated by the learned writer. The litigant is not a fool to approach every Tom, Dick and Harry to conduct his case. It is the client who decides as to whom he should approach with his cause and nobody can place any fetter with regard to acceptance of brief. It is purely a matter exclusively with in the discretion of the lawyer and his clientele.

Of course there are some corrupt practices such as touting are prevailing as regards certain type of cases like Motor accidents Claims, Land Acquisition cases and Electricity O.Ps. where no too serious questions of law is evolved where in certain newly sprout up "independent lawyers" are stooping to habits which militate against professional values, standards and prestige, as stated in the words of learned writer. As far as those 'persons' are concerned effective steps have to be taken by the State Bar Council for curbing the corrupt practice.

The sudden overcrowding in the profession has been since the past 5 or 6 years by simultaneous starting of five year law courses along with the existing three year law courses besides the evening courses. In order to lessen the overcrowding it is essential that there should be only one type of law course instead of the present system of creating two types of personalities. As already quoted above the words of His Lordship Justice Marar "The members of the Legal profession occupy a high status and carry high responsibilities from whom much higher standard of conduct and caution is expected." So the persons who takes to the profession should be a matured, well reasoned personalities. Comparatively a lawyer who come out by completing the traditional 3 year law degree seems much more reasonable and matured personality than those who complete 5 year course. The reason is obvious. As I have already stated legal profession cannot be compared to that of Medical or Engineering regarding the high standard of conduct and caution it requires being a truly democratic profession guarding the principles of democracy and human rights. Further a screening test can be conducted for 2 year course also for the candidates before seeking admission. More over compulsory chamber work and court practice for a year with a senior lawyer can be prescribed after the completion of law degree followed by an examination by State Bar Council at the end of training before getting themselves qualified for enrolling as advocates as it was prevailing in olden days in which period our country had seen eminent legal luminaries. So that persons who are committed alone will take to the profession and others will leave for other fields having got a basic degree.

To conclude I may quote the quote of His Lordship Hidayatullah, retired Chief Justice, Supreme Court of India, as referred to by His Lordship Justice Marar in the above cited ruling. "A lawyer is a kind of person who may be born but a lot of making goes into a real lawyer and in the end is rather made than born."

Kerala Joint Hindu Family System (Abolition) Act, 1976 :

Women and Society the Beneficiaries

(By Lucy Carroll, M.A., Ph.D., University of California, Berkeley)

'Let Act 30 of 1976 be scrapped; it appears superfluous and contributive to an improper outlook on life.' Thus proclaimed Dr. W.F. Menski in an article (1986 KLT J. 63 at 65) which has belatedly come to my attention. (See also 1986 KLT 17).

It is more than a little surprising that anyone could possibly talk about the Kerala Act without mentioning the position of the Mitakshara daughter, who even after the Hindu Succession Act, 1956, is in a grossly inferior position vis-a-vis a son in regard to rights in or to family property. There are only two ways of dealing with the problem: giving daughters birthrights comparable to those of sons, or abolishing male birthrights. Kerala boldly opted for the latter alternative; this step should be applauded.

Dr. Menski draws attention to what he considers a 'glaring oversight' and 'the most pernicious side effect of Act 30 of 1976.' (1986 KLT, pp. 18, 19). Postulating a family consisting of father, mother, and two sons on the day the Act came into force, he compares the shares taken by these two sons with that taken by a third subsequently born son. On the father's death, each of the three sons will take (under the Hindu Succession Act) one-fourth of the father's share (assuming his widow is present). By virtue of the partition occasioned by the coming into force of the 1976 Act, the father's share is one-fourth; thus each son takes 1/16. However, the two elder sons who were alive at the time the Act came into force and participated in the partition already have shares of one-fourth each. Thus, while the son born subsequent to the partition takes only 1/16, the two elder sons end up with a total of 5/16 each. This result is neither surprising nor unprecedented; nor is it grounds for scrapping the Act.

Firstly, let it be remembered that the Mitakshara daughter, is under the Hindu Succession Act, 1956 in exactly the same position of the son born after the 1976 Act on whom Menski expends such sympathy. While her brothers take from birth a share equal to that of their father, the daughter has no birthright and can only claim, after 1956, a share (with her brothers and mother, if alive) of her lather's share.

Secondly, the situation to which Menski draws attention can only happen once; it will only occur in the present generation. The existing sons retain the share they acquired through the birthright; subsequently-born sons, whether of the transitional generation or later generations, do not take shares by right of birth. Only in the transitional generation is it possible that sons in existence on the coming into force of the Act and subsequently born sons might co-exist together. If the subsequently-born son of the transitional generation takes a share less than he would if he had been lucky enough to be born a generation later, so also docs the existing daughter.

Mitakshara daughters benefit not at all in the transitional generation. It might have been more satisfactory if all Mitakshara property could have been distributed per capita to all members of the family, but this was avoided, obviously because such a course would have involved divesting sons who had already acquired rights by birth, a step which would certainly have raised protests and would probably have involved constitutional issues.

Once the partition consequent upon the coming into force of the 1976 Act has taken place, all property passes by succession and sons and daughters will inherit equally on an intestacy. Again Menski's comment that as regards Mitakshara Hindus, 'the..........daughter, as in the rest of India gets no share in the family property unless she becomes an heiress under the provisions of the Hindu Succession Act, 1956 (1986 KLT p. 18), is unenlightening. The implied criticism or comparison (with Mitakshara sons? with non-Mitakshara daughters?) only applies in the transitional generation. After that, all property will pass by succession. A son, no less than a daughter, will get no share in the family property unless he becomes an heir under the provisions of the Hindu Succession Act, 1956.

Thirdly, the situation to which Menski calls attention is far from unique or unusual. It is analogous to what occurs when there is a partition among father and sons during the lifetime of the father and other sons are conceived and born subsequent to the partition. The subsequently-born sons will take considerably less than the sons born before the partition. The result in this case, no less than in the case which so disturbs Menski, might be termed 'a most inequitable form of distribution of the former joint family property.....between male siblings, the criterion being merely the date of birth of the respective individual' with respect to the partition. (1986 KLT p. 19). The possibility that an 'inequitable' share of the former joint family property might go to sons conceived subsequent to a voluntary partition could only be prevented by barring all Mitakshara partitions during the lifetime of the father. I wonder that Menski has not (at least as far as I am aware) suggested such a 'reform.'

From the perspective of the Mitakshara daughter, the distribution of joint family property has always been 'inequitable.' The Kerala Act of 1976 remedied this basic defect; that some individuals might suffer a similar transient 'inequity' in the transitional generation is the cost of the kind of fundamental reform to which Kerala has courageously committed itself.

Having said all this, it might be worth considering an amendment to the 1976 Kerala Act detailing a special rule of succession to the properly of a Mitakshara male who was a coparcener with sons at the time the 1976 Act came into force and who died leaving either daughters or after-born sons. This special rule should give preference to the children (daughters and after-born sons) who did not participate in the partition occasioned by the 1976 Act as heirs to the share the father took on that partition and to his self-acquired property, provided that the preferential entitlement would not exceed an amount equivalent to the share that the existing sons had taken on the partition. It should be remembered that according to Mitakshara law prior to the MSA, the son born after a partition was heir to the father's self-acquired property in preference to the separated sons.)

I doubt very much that the 1976 Kerala Statute was enacted simply or even mainly because 'there were some abuses of the joint family system among Hindus by unscrupulous individuals who took advantage of their positions of power.' (1986 KLT p. 20.) Surely a major thrust behind the legislation was that there was simply no other effective way of guaranteeing the right of the Mitakshara daughter to an equitable share of the patrimony. The ouster of daughters was something that happened routinely, in every Mitakshara family; it was not a matter affecting only "a few' such families; the Hindu Succession Act had done little to redress the situation. By 1976 the virtual exclusion of the Mitakshara daughter could simply no longer be justified. This is a question that Mitakshara Hindus in other parts of India arc going to have to deal with sooner rather than later. As befitting a progressive State with a highly literate populace, Kerala has shown the way.

Dr. Menski professes concern for the daughter whose 'egoistic' brother may not be willing to contribute toward her marriage expenses. (1986 KLT pp. 18, 65.) To a large extent this is again a problem confined to the transitional generation, involving the daughter who did not get a share when the property was partitioned among the coparceners upon the coming into force of the 1976 Act; S.4(1) of the Act expressly attempts to protect her.

As for future generations, as long as her father is alive, the girl's brothers have no claim on his property; if her father is dead, she will have inherited a share equivalent to that taken by her brother. Hopefully, she will be more practical and more far-sighted than to waste money on frivolous and extravagant celebrations designed more to glorify her kinsmen than to contribute to the welfare of the bride, the matrimonial couple, or their children.

Whether because her father has access to a smaller purse and/or because the girl herself has more to say about precisely how the money is spent and/or because her brothers are less willing to dip into their own pockets, the Kerala Act may be expected to mitigate wasteful and extravagant expenditure in marriages and dowries. I have previously argued (Eg. in a paper presented at the University of Texas, Austin, 2 April 1986) that the problem of dowry cannot and will not be resolved until the question of equalising the daughter's rights in the patrimony is directly addressed. In the absence of such fundamental reform, the attempt to render illegal dowry transactions is to negate even further the daughter's rights in her family of birth. While it would be a gross over-simplification to suggest that exclusion from inheritance is the single cause of the dowry system as it presently exists in India, the problem of dowry must be seen in the context of other property rights of the daughter, and criticism and condemnation of the dowry system must be coupled with advocacy of reform of the daughter's rights as an heir to the property other natal family. Again, Kerala's dramatic step in abolishing male birthrights in Mitakshara joint family properly can only be applauded.

To the extent that the Kerala Statute recognises daughters as equal, and equally important and valuable, members of the family as sons; and to the extent that it discourages extravagant and wasteful expenditure and mitigates the dowry evil, it certainly cannot be said to be either 'superfluous' or 'contributive to an improper outlook on life.' (1986 KLT p.65.) Precisely the opposite!

The matter that concerns me about the 1976 Act is that henceforth, there being no birthrights, all of the father's property will pass on his death under the Hindu Succession Act. This means that daughters and sons inherit equally — if the father dies intestate. But there is no restriction on the power of a Hindu to will away his property as he pleases. By disposing of his entire property by will in favour of his son, a father could effectively disinherit his daughter.

Here Muslim law offers a solution — and in evolving a Uniform Civil Code, the potential contributions on offer from this impressive corpus of legal thought and jurisprudence should not be under-estimated. (An example already incorporated into law is the 'option of puberty' clause added to the Hindu Marriage Act in 1976. See Lucy Carroll, 'Muslim Family Law in South Asia : The Right to Avoid an Arranged Marriage Contracted During Minority,' Journal of the Indian Law Institute, 23 (1981) : 149-180). In Muslim law an individual may not dispose of more than one-third of his estate by means of a will without the concurrence of his heirs. Sunnis take the matter a step further and ban all bequests in favour of an heir (even within the one-third limit) without the concurrence of the other heirs.

The Kerala legislators would do well to consider amending the Hindu Succession Act so as to impose limits on the testate power of Hindus in order to ensure that the rights given to the daughter by one hand are not taken away by another.