Egoism Versus Family Solidarity : Women's

Property Rights In Kerala

(By Dr. Werner Menski, SOAS, London University)

At 1993 (1) KLT, J.45-48, Dr. Lucy Carroll argues that I have disregarded the legitimate claims and concerns of the Mitakshara Hindu daughter while criticising some of the effects of the Kerala Joint Hindu Family System (Abolition) Act, 1975. Surely, one could have said more about the daughter, but what I wrote a few years ago was based on extensive fieldwork in Kerala in 1985/86, focused on the lack of fit between the officially declared urban-based law and 'people's law' in the villages. There was, as far as I could see, no evidence of concern on the part of the urban lawmakers about the rights of the Mitakshara daughter. At any rate, in Kerala there are other kinds of Hindu daughters who have traditionally had belter rights.

Clearly, some of the problems that my fieldwork identified are of a transitional nature and are not unique; pointing them out was designed to show that a modern Act that seeks to strengthen individualism, and thus egoism, causes some new difficulties that the lawmakers may not have anticipated. That the new law would not work in favour of weaker members of society, including women and children, was probably clear from the start: the 1975 Act seem s to have been passed to protect propertied interests, not for the benefit of the poor. Talking to villagers in 1986, I learnt that, in their view, individualising law reforms cannot trigger off that precious human quality, concern for others; it may actually damage it beyond retrieval. The traditional status-based system, on the other hand, emphasising duties rather than rights, appeared to guarantee women a better deal, since the men were under moral pressure to fulfil their obligations.

I would have been glad to find evidence that the legislators who created the 1975 Act actually had a significant improvement of the position of Kerala's women in mind, but there was no such evidence. May be among the numerous readers of the KLT there are some persons who can enlighten us on this. As far as I know, Dr. Carroll is wrong to simply assert that a major thrust behind the 1975 Act must have been a will to improve the lot of the Mitakshara daughter. If that had been so, the law could have offered daughters a better deal and Kerala could have opted, as Andhra Pradesh has done, by the Hindu Succession (Andhra Pradesh Amendment) Act of 1985, for making daughters totally equal to sons as coparceners. Abolishing the birthright, in Kerala, did not indicate an explicit need or desire to assist women, the reform focused on male interests as far as Mitakshara Hindus in the State were concerned. Significantly, the Act itself is silent on this issue, nor have the eases under this Act made explicit policy comments in this regard.

This shows that it does not help our understanding of South Asian family laws if European or North American lawyers expound on such matters from an armchair perspective. Socio-legal realities in South Asia continue to have their own flavour and, this was a major result of the Kerala case study, may develop quite differently from the officially stated law.

The concern that I professed for the daughters was voiced by my informants during village field work in 1986. The issue is certainly not a transitional problem, it is at the core of South Asian family arrangements about property matters, imagine a basically landless family - all too common now - that owns a few cents with a house on it and perhaps some coconut trees. The parents have several children, boys and girls, and want to arrange the marriage of a daughter. Which form of state law will help (his family to have a 'decent wedding’? For poor people, too, this now seems to be a wedding on which you spend in the region of Rs.10,000/-. My fieldwork shows that the arrangements made by families in such circumstances disregard individual properly rights; family solidarity is the need of the hour. Thus, uncles, sons and brothers are called upon, the latter ultimately to the extent of being unable to marry till well into their thirties. The obligation to assist a sister in getting married clearly overrides the egoistic concerns of the male.

It is too simplistic for a Western legal scholar, however feminist and outspoken, to denigrate the South Asian marriage systems as 'frivolous and extravagant celebrations designed more to glorify her kinsmen than to contribute to the welfare of the bride...., as Dr. Carroll stated (p.47). Western egocentric hybris may see Indian weddings as wasteful, but how can one object to people's desire to 'marry in style' in principle? For the majority of people, this is still a once-in-a-lifetime occasion that needs to be celebrated and auspiciously completed. There is certainly some scope for economising in many cases, but what is extravagant and frivolous about giving a simple little party to relatives and neighbours, which is all a poor family can afford? People the world over, unless they merely cohabit, indulge in such 'frivolous' feasting. Poor Keralites, too, in their own small way, take their marriages very seriously as important family affairs. Lest we restrict marriage to the sterile procedure of signing a contract, which no legal system in the world has achieved to the total exclusion of all other forms of marriage, who are we Western scholars to deny South Asians their claim to have this probably most important rite of passage marked in a socially meaningful way'.'

Using so many words here, I am not excusing excesses of the dowry problem for a moment. However, we should never forget that dowry, apparently, becomes only a matter of concern when there is a breakdown of relations between the participating families. Nobody takes rich people to court simply forgiving and taking a huge dowry. Celebrating one's marriage and the dowry problem are not exactly the same issue and it is fundamentally wrong to assume that all Indian marriages involve a dowry of some kind or another. In this context, I see the Keralite 'donation' that the bride's side is expected to make as a contribution to the expenses of the wedding, admittedly a form of dowry, but not the one that causes the legal problems that North Indians, in particular, are so familiar with.

Dr. Carroll very rightly emphasises the fundamental connection between dowry and women's property. While they are intimately linked, there is no simple legal solution to either problem. Blaming Indians for wasting money on marriages is certainly not a constructive approach. What has the modern law to offer here?

My evidence from Kerala in 1986, confirmed in 1992, was quite clear on this. A legal improvement of the daughter's property rights would only be of help if there is substantial property to distribute. At any rate, at the time of marriage it is not the daughter who pays for her marriage, but her natal family. Thus, the people's law saves daughters, as my informants so clearly indicated, from being deprived of a decent wedding. Brothers, uncles, everyone will rally round to bear and share the burden. If a daughter or sister has all this done for her, how then can she sit back and insist on a separate share of properly as well? My apprehension, expressed in 1986, that giving women their own property lights may leave them on their own when it comes to bearing the marriage expenses, has been confirmed by more recent field work.

Here, as elsewhere. Western women's concerns are out of fit with the realities of South Asian societies. The Hindu daughter cannot have it both ways, and I doubt whether many women in Kerala would take Dr. Carroll's path of claiming separate property rights and foregoing the enjoyments of an 'extravagant' marriage and the solidarity of their family. Elsewhere, Asians in Britain included, women are known to renounce their shares in favour of male relatives, in exchange for goodwill and solidarity in times of need. Of course this gives them a position of moral strength, but the Mitakshara system embodies that same moral principle. If this is unpalatable to modern feminists, so be it.

I have not come across any evidence to suggest that the Kerala Act of 1975 has, as speculated by Dr. Canoll. mitigated wasteful and extravagant expenditure on marriage and dowries. Again, it would be most welcome if readers of the K.LT could enlighten us on this point. The question would be whether some families now make conscious decisions to spend less on marriage because individual property rights have reduced willingness to share and to contribute. Perhaps some bright students con Id apply their minds to this.

Dr. Carroll also, and rightly, alerts us to the scope for male deviousness in willing away property to disinherit Hindu females. One fails to see, though how recourse to Islamic law can offer a realistic remedy that will work in practice. Muslim women, too, complain of being disinherited, despite the clear stipulations of Quranic shares. The political gesture of copying another rule of Muslim law into Hindu law, or into the illusory uniform civil code provisions, would be quite, pleasant. But where is the meaningful remedy for women faced with male chauvinism and greed? As indicated, legislation per se is of limited value.

Here, a secular judicial approach in Kerala shows some promise. What we need is astute judges and judicial alertness to the plight of women, not more legislation, however refined. In Lakshmi v. Valliyammal (1992 (2) KLT 873) we find a case under S.39 of the Transfer of Property Act, 1882 (clearly a secular Act) which illustrates the scope for judicial creativity, which is now so prominent in Indian cases concerning maintenance for women and children.

This is actually a Hindu Shah Bano situation. An unpleasant old man had alienated his property to defeat his wife's claim to maintenance. He had simply given it to a younger mistress. The older woman, whose claim as wife is disputed in revolting fashion, had grown old bearing nine children and found herself deprived of financial support. Mr. Justice Balasubramanyan of the Kerala High Court astutely ruled that the husband's gift to his lover was vitiated by the clear intention to defeat the old lady's claim for maintenance. Thus, the wife had a charge upon the properties of the husband. Lawyers will note the good use made hereof the leading case o[ Tulasamma (AIR 1977 SC 1944), which can be applied to all Hindu females and would, thus, assist a Mitakshara daughter in peril. I venture to suggest that this case could even assist a Hindu daughter where her egoistic brothers have decided that they cannot contribute to her marriage expenses.

In conclusion, if we want to fix our gaze on formal equality between the sexes, we may have to bear with encouraged egoism. Recent developments in various areas of Indian law concerning the property rights of women show that an unambiguous recognition of legal inequality works, in fact, to the advantage of women. Alert judges rather than pompous legislators or Western scholars can be the most efficient protectors of the legitimate financial interests of Indian women. As so often, the judiciary in Kerala has been playing a leading role in this process, emphasising moral obligations over the cold and sterile concept of legal rights.

Matrilineal Succession Law in Kerala : An Aborted Challenge to Women's Property Rights

(By Dr. Werner Menski, SO AS, London)

The issue in its wider context

In the important recent lest case of Chellamma Kamalamma (1993 (1) KLT 174 F.B.), a Full Bench of the Kerala High Court led Jagannadha Rao, C.J. was called upon to consider whether two earlier decisions by the same court, reported in Madhavi Amma (1988 (2) KLT 964) and Bhaskaran (1990 (2) KLT 749) were correct. In the earlier cases, the respective judges had held, without much explanation, that S. 17 of the Hindu Succession Act. 1956 (HSA) had not been rendered inoperative after the coming into force of the Kerala (Hindu Joint Family System Abolition) Act of 1975 (the 1975 Act), which had, no doubt, abolished the joint Hindu family law in the State of Kerala.

The test case concerns succession to the property of a female Hindu from a matrilineal community. Typically, where the deceased woman died childless, the succession struggle is between her mother, on the one hand, claiming inheritance based on matrilineal principles, and the deceased's husband on the other, whose claim arises from patrilineal principles. The simple facts in Chellamma Kamalamma (1993(1) KLT 174 FB) gave no rise to any dispute. But which law applied to those facts after the death of a Marumakkathayi female from Kerala?

Since the HSA made special provisions for succession in matrilineal communities, S.17 of that Act has the effect of preferring the mother's right to that of the husband. Not surprisingly in our male-dominated world, the representatives of the patrilineal principle have again gone to great lengths to defeat the female principle. But they have lost the battle, at least so far, and for some good reasons. My argument here is that the majority verdict of the Kerala High Court in Chellamma Kamalamma (1993 (1) KLT 174 (F.B.) looks shaky on purely legal technical grounds, but that it is correct and highly appropriate as far as the social consequences of the decision are concerned.

Regrettably, the !aw\ as and judges involved in Chellamma Kamalamma’s case got so carried away and partly side-tracked in their fine-tuned legal argumentation that they overlooked the wider social and political implications of the decision they were called upon to produce. At least the case report does not disclose any such concerns, which may well have arisen in the elaborate opinions provided by three senior members of the Kerala Bar (see p. 181 of the case report).

If the purpose of certain sections of the HSA, prominently Ss.7 and 17 was to save various aspects of matrilineal family law in India, prevalent in South India, with the famed Marumakkathayam system the most prominent among them, any decision that renders those sections ineffective would simply kill off the matrilineal legal systems of India, at least in Kerala. If that is the price we are prepared to pay for legal uniformity, so be it; as always, I have grave reservations about such an overzealous reformist approach. Firstly, it damages the property rights of women and their dependents and strengthens the already superior rights of men. Thus, to declare S.17 HSA ineffective changes the balance in favour of men and the male principle, which cannot be constitutionally sound, nor socially acceptable in many families of South India. Further, weakening (if not abolishing) the matrilineal principles of succession will impose, on the matrilineal families of Kerala at any rate, the North Indian system of succession, which is not really alien, but has radically different effects, as the cases show all too clearly.

The hidden political dimension

What we need to understand, then, is that the current struggle over the effectiveness of S.17 HSA is also an eminently political matter, in terms of gender politics as well as the Indian struggles over legal uniformity. Courts are probably wise not to indicate this in so many words. In the present case, though, it seems that legal technicalities have taken up all mental energy. This is not healthy. From the study of the High Court cases before us, it seems that the various advocates have narrowly concerned themselves with their clients' interest. The judges, too, have addressed their minds to many legal niceties and appear to have shut out any consideration of the wider dimensions. Chellamma Kamalamma (1993 (1) KLT 174 (F.B.)) certainly represents a serious attempt to solve the current conundrum and is a typical test case, but it could have said a bit more about the socio-legal dimensions of the issue. Without this, as I shall show below, our basic understanding of the law itself may suffer.

Thus, to hold now that S.17 HSA is rendered ineffective - we shall see that S.7 HSA has already been ineffective since 1976 - would mean to impose North Indian succession law on those South Indians that used to live by a radically different tradition. This ex-post re-writing of the HSA goes too far, in my view, since it wipes away the legal safeguards for South Indian patterns of inheritance and succession in the HSA which was designed as an all-India law, explicitly taking account of legal diversity. Within it, South Indian laws and traditions are just as valid and valuable as North Indian ones. Even though the trend worldwide goes against matrilineal systems (see various examples in African countries, whether Tanzania or Ghana), there is no logical reason for this. It simply reflects the continuing onslaught of male chauvinism and brash North Indian-style principles that see women as the property of men.

Surely, if the Hindu Marriage Act, 1955cancxplicitly save South lndian marriage customs in Sections 5(iv) and 5(v), as well as by implication in Sections 7and 29(2), then the HSA must retain similar mechanisms to allow continuity for the various South Indian matrilineal systems of succession.

The fatal flaw in the tinder standing of Marumakkathayam law

I have warned repeatedly, at 1986 KLT J 17-20, 1986 KLT J 63-65 and now at 1993 (2) KLT J - 45 that the Kerala (Hindu Joint Family System Abolition) Act of 1975 took too little account of the social dimension and, the implications of the legal reforms brought about by that Act. Is this another example of a miraculous wonder drug with disastrous side-effects (see 1990 (2) KLT J 3-10)? I f it is now argued that the 1975 Act has rendered whole important sections of the HAS otiose, some thinking has to be started over the social consequences of such wide-ranging legal changes that were, surely, not anticipated by the eager law-makers in the 1970s.

In my writing so far I have been complaining about the lack of fit between the officially passed law and the rules that Kerala villagers continue to apply to themselves. In this situation, it may pay off to go to court and to challenge the continued application of traditional law. Clearly, such acts of egoism are not restricted to male litigants, though it must be said that behind female claimants there are mostly male lawyers. Thus, the stubbornness of female claimants, such as in Madhavi Amma (1988 (2) KLT 964), seems to be a major factor leading us now to very interesting and controversial questions concerning the position of the official law itself.

The current controversy has focused entirely on the official law and has led to interesting but quite confused legal arguments. At first sight, it is indeed the correct position, as now authoritatively restated by the learned Chief Justice in Chellamma Kamalamma (1993 (1) KLT 174 (F.B.)), at pp. 192 and 193, that all joint Hindu family law of Kerala stands abolished with effect from 1-12-1976. But there is a fatal Haw in this reasoning. What precisely is the Marumakkathayam Law? As correctly noted throughout the judgment, the 1975 Act affected the various Hindu joint family laws and turned all jointly owned property into individually owned shares. But has this change in the law also affected those parts of the Marumakkathayam Law which are concerned with succession to individual property? With respect, the statement of the learned Chief Justice that no part of the Marumakkathayam Law can be said to be in existence after 1-12-1976 (p. 193) cannot be correct. The Marumakkathayam Law in Kerala is still alive, and long may it live! But it is now restricted to rules concerning succession to individual property. S.17 HSA applies precisely to such property only, not to joint family property.

Clarifying the law

When I started my n search for this article, I focused (as almost always) on the social dimensions of the legal problem, developing the working hypothesis that in succession struggles a good law should ensure gender equity. I appreciate that busy mainstream lawyers may not be interested in resolving the conflicts between official law and real local practice, but now the nature of the official law itself has come under scrutiny in the courts of Kerala and no lawyer can afford to ignore the issue: Has the 1975 Kerala Act really rendered S.17 of the Hindu Succession Act, 1956 otiose and ineffective, thus depriving matrilineal families of their old-established rules on all kinds of succession?

What we witness here is confusion among the law makers and the legal profession about what actually is the law that was officially passed. This problem, although by no means unique, seems particularly acute in the Indian family law set up, where legislation (and case-law, for that matter) may be produced at central and state level, but it is potentially an issue in every legal system. While the doctrine of precedent is supposed to take care of conflicting positions taken by courts at different levels, in the realm of legislature there is much scope for confusion. More often than not, the legislators have not considered the implications and side-effects of a new enactment, so that we find had drafting and inconsistencies in the law, requiring judicial intervention.

But the current Kerala problem is not quite of this kind, it would seem. When the 1975 Act was created, one was clearly concerned to abolish the incidents of the joint Hindu family in the state and to provide for separate ownership of property rather than joint family sharing. Out went the birthright and aspects of the pious obligation, in came the strengthened notion of individual property rights. Following on from this, the next step must be a succession regime that concerns itself with allocating shares in a deceased individual's property to the right claimants.

Precisely here lies the problem for Kerala. As correctly stated in the test case, the 1975 Act does not really cover succession, it only concerns the abolition of the joint family holdings. Any legal disputes over succession are still referred to under the regime of the relevant central Act, which is the Hindu Succession Act, 1956. The central issue for Kerala (and, in some respects, adjacent states) concerns rights of inheritance to females from the matrilineal systems of Hindu law, mainly those governed by the Marumakkathayam law. After Marumakkathayam Law has virtually been abolished by the 1975 Act in Kerala, and S.7 HSA has been rendered ineffective to that extent, has S.17 of the HSA also lost its relevance for Keralites?

In a nutshell, the argument for the male principle has been this: S.17 HSA makes special provisions respecting persons governed by marumakkathayam and aliyasanthana laws, but such persons do no longer exist in Kerala; thus S.17 is now ineffective. This argument, as Mr. Justice Radhakrishna Menon has said in Madhavi Amma (1988 (2) KLT 964, at 966), is "really attractive". The learned judge, then, came to the conclusion that S.7 of the 1975 Act "has no manner of impact on the order of succession prescribed under S.17 of the Succession Act" (p.967), but he did not tell us why this should be so.

In this case, the mother of a deceased man was trying to appropriate the whole of his inheritance for herself, though her son was married and had left a widow who, however, followed him to the heavenly abode a week later. The couple being childless, the heirs of the deceased male under S.8 HSA were his mother and his widow, both taking an equal half share. This was not a share in real estate, rather a certain amount of insurance money, which would not have been worked out by the time the widow herself died. The mother-in-law, seeing chance for quick enrichment, one must suspect, sought to claim the entire insurance amount for herself, while a female relative of the deceased widow - her identity is not further specified in the case report - claimed the widow’s half share exclusively for herself as an heir under S.17 of the HSA, 1956.

In support of the mother-in-law's claim, her lawyers resorted to the new situation created by the 1975 Act in Kerala. I am not sure whether it is the first case in which this point has been argued; whoever invented it deserves much credit for originality. The deaths having occurred in 1982, the petitioner's lawyer simply said that there were no Marumakkathay is in Kerala after the abolition of the system by the 1975 Act. Thus S. 17 of the HSA could not apply, instead the succession was governed by S.15 HSA and his client was entitled to the full insurance amount. For, in accordance with the provisions of S.15 HSA, in the absence of offspring, the property of a female Hindu dying intestate would devolve-upon the heirs of the husband, here the greedy mother-in-law to the exclusion of all other claimants.

On the other hand, if one applied S.17 HSA, then a rather different sequence of statutory heirs comes into play: the heirs of the husband have been relegated to the last slot in the section, while preference is given to the heirs of the mother. This is how the female relative of the deceased widow in Madhavi Amma (1988 (2) KLT 964) came in as a claimant. She ultimately won her case for a half share in the insurance amount because the learned single Judge found that S.17 of the HSA had not been affected by S.7 of the 1975 Kerala Act. In other words, S.17 of the HSA continues to protect matrilineal based inheritance rights where these are relevant.

The test case of Chellamma Kamalamma (1993 (1) KLT 174 (F.B.) questioned the correctness of this verdict, as well as the decision made by a bench of two judges in Bhaskaran (1990 (2) KLT 749).

In this case, Ramakrishnan, J. spent more time on the interpretation of certain non statutory insurance regulations and the definition of 'family' than on the question that concerns us here. But he made an unequivocal decision, without referring to Madhavi Amma (1988 (2) KLT 964), to the effect that S.7 of the 1975 Act in Kerala "does not in any manner interfere with the mode of succession reflected in S.17 of the Hindu Succession Act" (p.754). The court, therefore, rejected an appeal by a husband, whose wife had died childless in 1978, against the lower court's decision to make the deceased's mother the sole heir under S.17 of the HSA. Of course, the application of S.15 HSA, as claimed by the husband, would have made him the sole heir. Though there is not as much as an inkling of social comment in this case, it needs to be emphasised how radically different the two alternatives before the court were. In my view, to find in favour of the female principle is the socially correct and preferable approach. A Marumakkathayi marrying a woman from his community should know that he neither owns his wife, nor her property.

Thus, both cases discussed above uphold and protect the preferential inheritance rights for women or heirs claiming through women in Kerala. I can find no fault with this either in terms of gender equality, nor legislative policy. It would surely be a retrograde step if Kerala's laws were to deprive matrilineal people of their old-established rights that provide a viable counterbalance to male domination.

This does not mean that the abolition of the joint Hindu family systems in Kerala as from 1-12-1976 was, per se, a bad thing, though I have my reservations. Traditions, where it causes social problems, may legitimately be curtailed or even superseded. Thus, to turn all property into absolutely owned shares was the most important effect of the 1975 Act; readers will have to make up their own minds whether this was good or bad.

Now, to what extent should this important change in the law have any effects on the various regimes of succession that prevail in Kerala? Without doubt, what the 1975 Act has abolished are the joint family aspects of Marumakkathayam law. Thus, there is no more joint family property to distribute, and S.7 of the HSA, 1956 has indeed been rendered ineffective since 1-12-1976 for Kerala Hindus; there simply are no longer any shares in this kind of joint Hindu family property to distribute. This issue may be regarded as clearly settled.

What about S.17 of the HSA, though? Like Sections 8,10 and 15 of the HSA, S.17 applies to separate property only. The class of persons who owns such property was increased by millions of Kerala Hindus on 1-12-1976, precisely the new owners of separate shares that the 1975 Act gave to everyone who had an interest in joint family property that would otherwise have passed under S.7 HSA. Surely it goes too far to argue now that the basis for the application of S.17 HSA has been legislated away by the 1975 Act because it abolished the Marumakkathayam law in its entirely?

The socio-legal argument here, as far as Kerala is concerned, must be that the lawmakers, in this case the judges, should uphold the rights of the matrilineal people of Kerala to inherit through females rather than males on account of the principle of nondiscrimination. The legal argument, I would suggest, is that the Marumakkathayam law (like the Mitakshara law, of course) is composed not only of a system of joint family property law, but contains also rules on the ownership of and succession to, individual property.  The Marumakkathayam law of Kerala regarding succession to individual property have clearly not been affected by the 1975 Act. Thus, the argument that S.17 HSA does not longer apply to the marumakkathayis of Kerala must be faulty, since the Marumakkathayam law of Kerala, though only as far as its rules concerning individual property and succession are concerned, is still fully alive. That these rules are heavily influenced by family, local and caste custom will be known throughout the state. That most people will, therefore, find amicable settlements within their community and without recourse to the state courts, is also clear. Lawyers acting for greedy individuals who think they can exploit the current legal insecurity should beware: To argue that S.17 of the HSA has been rendered entirely ineffective is not going to lead them anywhere. The attempted total abolition of the Marumakkathayam system has simply not happened. An important part of that law is still alive, and long may it live!

If the above argument is correct, the five categories of potential claimants listed by Jagannadha Rao, C.J. in Chellamma Kamalamma (1993 (1) KLT174 (F.B.)), at p. 193 need to be looked at afresh. Categories (i) and (iii) are clearly governed by S.17 HSA, but what is the position of heirs to persons governed by Marumakkathayam law, whet her living on 18-6-1956 (when the HSA came into force) or born on or after that date, who died on or after 1-12-1976, when the 1975 Kerala Act came into force? The learned Chief Justice has correctly argued that it is not difficult to identify this class of persons (see p.194). He then goes cm to state that "such persons once identified need not in our view, continue to be governed by the Marumakkathayam law on their death" (p.194). My view would be, as stated above, that such persons continue to be governed by Marumakkathayam law as far as it refers to individual property. Thus, once the class of persons has been identified, succession to their property can be regulated as laid down in S.17 HSA, as before the passing of the 1975 Act. This means, by implication, that also succession to Marumakkathayis born or after 1-12-1976 continues to be governed by S.17 HSA. Obviously, in their case it can only be separate property that falls for succession.

To hold, as the learned Chief Justice does in effect (see p.200), that his fifth category of persons has already irrevocably lost its claim to inheritance under S.17, might seek to avoid the harshness of the sudden death of the Marumakkathayam system on 1-12-1976 and the envisaged ineffectiveness of S.17 HSA. Instead, it would mean slow death for the Marumakkathayam system and S.17 HSA, as the class of persons born after 1-12-1976 naturally increases, while the older class can no longer be replenished and will gradually die off. Thus, the application of S.17 HSA would only cease when the last Marumakkathayi Keralite born before 1-12-1976 has died. The argument of the learned Chief Justice, then, gives a limited lease of life, as it were, to the continued application of S.17 HSA and the Marumakkathayam system in Kerala. I have already shown that this argument cannot be maintained due to the lack of distinction between the joint family property and individual properly dimensions of Marumakkathayam law.

The Marumakkathayam law lives on

Thus, I find neither the majority view in Chellamma Kamalamma (1993 (1) KLT 174 (F.B.)), nor at all the dissenting view given by Krishnamoorthy, J. doing justice to the problem posed before the court. Considering the wider context of this difficult problem, the law must come to a conclusion that helps the women of Kerala and upholds the matrilineal traditions of this great State. It is not a matter of recent sociological enlightenment that women tend to be deprived of legal rights by official legal systems that work on Upendra Baxi’s principle of ‘the long purses' deciding the law. The learned Judges in Madhavi Amma (1988 (2) KLT 964) and Bhaskaran (1990 (2) KLT 749) have done a splendid job to defend women's rights, though that was not what their judgments tell us. It is entirely proper that a superior court should examine the correctness of such verdicts, but wider issues of socio-legal policy making must inform such decisions. Law, do we need to be reminded, is more than a technical craft. To some extent, one can read Chellamma Kamalamma (1993 (1) KLT 174 (F.B.)) as an example of the waste of precious judicial time by lawyer-induced obfuscations. At the end of the day, the solution seems so simple, but we must admit that we have learnt from aberrant arguments. To follow them could have ruined the social fabric of Kerala society.

In a constitutional democracy supposedly based on equal rights, there is every justification for having two or more principles of succession side by side. In Kerala, the 1975 Act abolished all joint family interests, not just the matrilineal ones, leaving the field entirely to individual property rights. The matrilineal principle of succession to individual property, even though it may hurt men, is alive and well in Kerala, though it seems for the moment buried under the rubble of Chellamma Kamalamma's case. The Marumakkathayam law, I was glad to find, is not entirely dead.

Much water has flowed down the Ganges: Muslim polygamy, the Special Marriage Act and judicial collusion

(Dr. W.F. Menski, SOAS, London)

At 1992 (1) KLT J 6 (see also 1991 Cri. L.J. J 127-8), our learned friend S.A. Karim of Thiruvananthapuram argued that the decision of the Allahabad High Court in Anwar Ahmed (199l Cri. L.J. 717) needs reconsideration because of the Special Marriage Act, 1954 does not apply to Muslims. This is an attractive argument which is, however, as the learned High Court judge aptly put it, "a fallacious contention". Apart from the Muslim clement in this debate, this particular case demonstrates the continued leniency of Indian judges towards bigamists.

Basically, there was no dispute about the facts of the case, though the case report itself is somewhat confusing about various dates. As far as I can see, Anwar Ahmed had married a Muslim woman some time ago and had then contracted a second marriage with another Muslim woman in 1981. This marriage was registered under the Special Marriage Act, 1954 and was, it appears, only subsequently solemnised in a nikah some four months later. To achieve registration under the 1954 Act, the husband had concealed the fact of his first marriage, which was clearly an offence punishable under S. 494 of the Indian Penal code, 1860.

The husband's revision petition before the Allahabad High Court was only admitted on the question of sentence. Anwar Ahmed had been sentenced to undergo rigorous imprisonment for three years. His defence was that as a Muslim he could have up to four wives and, further, that the provisions of the Special Marriage Act cannot take precedence over his personal law. This latter argument, pursued with some vigour by Mr. Karim also, would .certainly bail out the husband. Mr. Karim has argued that the 1954 Act does not apply to Muslims because it does not specifically mention them. However, a close study of the objects and reasons of the 1954 Act, of which Mr. Karim seems to be aware, reveals its purpose as "to provide a special form of marriage which can be taken advantage of by any person in India and by Indian nationals in foreign countries irrespective of their faith which cither party to the marriage may profess".

I fail to see how one can interpret this to mean (see 1991Cri. L.J. 127, at 128) that the 1954 Act is "mainly intended to legalise the marriage of Indian nationals in foreign countries - irrespective of the faith of the spouses" and can then proceed to argue that the Special Marriage Act does not apply to Muslims. Surely, they are included under "any person in India" and "Indian nationals in foreign countries"? Further, as was also noticed by Mr. Karim, the Act specifically indicates that its provisions apply irrespective of faith, which is fully appropriate for a secular statute. The argument that this Act does not apply to Muslims, therefore, is not tenable and was rightly thrown out by the learned judge. The Special Marriage Act, i954 is, with few exceptions, an optional law, and can be used by any Indian who is attracted by its provisions.

Mr. Karim's argument in support of the polygamous husband, namely that "both marriages are legal and within the ambit of shariath" (1992 (1) KLT J 6) would appear to be correct, as long as we assume that the husband did not move beyond the realm of shariat. But that is not what he did: by attempting to register his second marriage under the Special Marriage Act, he brought himself within the umbrella of the secular law of India and committed a crime in the process. We are not told what his reasons were for doing so, but it does not appear to be the case that the husband was ignorant of the law, nor would I compare him to an unfortunate insect fatally attracted by the glistening spider's web of India's optional Uniform Civil Code. Anwar Ahmed clearly knew what he did, wanting to sanctify his desire by fraud, for which he was duly punished.

Muslim reluctance to acknowledge the superiority of any form of Suite law in modern India is now an issue which is similarly politicised in several European countries with substantial Muslim minorities. It is not helpful if Muslim lawyers, in India or anywhere else, are seeking to construct obfuscating arguments to 'protect' Muslim law from some kind of secular onslaught. More often than not, as in this case, the real purpose is to assist and protect a devious man. The object of the appeal was, one assume, to have the husband's sentence reduced; that object was indeed achieved. So why harp on about the Muslim element in this case? It may be fashionable, but only helps to stir up communalist arguments, the last thing any sensible Keralite should wish to see.

In my view, the more important legal issue raised by this case is the judicial handling of polygamy. Here we see no evidence at all of India's famed judicial activism, rather the opposite: continued male collusion between judges, lawyers and polygamists to defeat the claims of female victims of polygamy. The case report does not tell us why the first wife pressed the prosecution after so many years, but possibly this was so because of some trouble over maintenance. Not a single comment in the case report shows any concern about the superseded woman, who could well turn out to be a Shah Bano-type lady.

The learned judge, in reducing the husband's sentence from three years to the time already served in prison, refers to the fact that the offence occurred many years ago. As he puts it, "much water has flowed down the Ganges" since then (p.719) and, astonishingly, "I see no reason to impose retributive punishment just to satisfy certain provisions of law" (ibid.). In other words, the learned judge, while upholding the superior status of the Special Marriage Act vis-a-vis the Muslim personal law if a Muslim chooses to opt for the former, shares the well-known altitude of Indian judges that polygamy is really only a small cavalier's delict and that the law, if anything should protect the polygamist from unduly harsh victimisation. Nothing seems to have changed since Professor Derrett, ages ago, noted this attitude to polygamy in ‘A roundup of bigamous marriages' at 1967 (69) Bombay Law Reporter, J 84-93.

The present case, thus, throws some interesting light on the current sentencing policies of Indian judges for bigamists. It confirms that, even in 1991, India's polygamists can count on judicial sympathy. This case is, therefore, in illustrious company. After all, India's leading case on the punishment for polygamy (Gopal AIR 1979 SC 713) contained a lecture to the nation about the seriousness of the offence, followed by a reduction of the bigamist's sentence to the time already served. Gopal is not referred to in the judgment, but it is probably not wrong to assume some continuing empathy here among many male members of the Indian higher judiciary.

Readers will be aware that I have argued against the total and strict abolition of polygamy in India (See 1990 (1) KLT J 50-69 and 1991 (2) KLT J 20-24),but the argumentation used to free Anwar Ahmed reeks of male collusion and does not bode well for women in India. One wonders how this particular approach can be matched with the stiffer attitude to polygamy found in Baby (AIR 1981 Bom. 283) and especially in the much-underrated case of Sumitra Devi (AIR 1985 SC 765), in which the Supreme Court overruled itself and, at a stroke, got rid of the very unsatisfactory earlier leading cases of Bhaurao Shankar (AIR 1965 SC 1564) and Kanwal Ram (AIR 1966 SC 614).

In remarkable contrast to the law on maintenance for divorced wives, the Indian higher judiciary's position on polygamy lacks any element of judicial activism in favour of the concerns of women. This, and not communalist politics, is the focal point of Anwar Ahmed's case that Indian lawyers should pay attention to.

In this context, the Pakistani case of Faheemuddin (PLD 1991 SC 1074), a very interesting public interest petition concerning the right of the second wife to prosecute her husband for polygamy under the Muslim Family Laws Ordinance of 1961, might serve to show that South Asian women of any faith, anywhere, still have to wait for much more water to flow down the Ganges before they may have effective remedies against the trickery of polygamous husbands. True, the lady in Faheemuddin was given standing to prosecute him, but what is she going to gain other than some revenge, or a divorce? At least, however, Muhammad Afzal Zullah, C.J. (as he then was), took the arguments of the female complainant seriously and made no attempt to collude with the polygamist and his legal advisers. Mr. Karim and others would do well to study such judgments; they might realise that Indian Muslims arc well-protected by the secular Indian legal framework and that polygamy at the whim and fancy of any husband cannot be a right worth defending, whether in a secular or an Islamic context.

Protection Act Un-Protects

(S.A. Karim, M.Com., LL.B., Advocate, Thiruvananthapuram)

The Muslim Women (Protection of Rights on Divorce) Act, 1986, popularly referred 'Protection Act' came into existence as a result of the Hon'ble Supreme Court decision in Mohammed Ahamed Khan v. Slut Bhanu Begum, 1985 Cri. L.J. page 875. It is known 'Sha Bhanu case'. The Sha Bhanu case decides the status of muslim divorced lady as wile as long as she remains not re-married for the purpose of maintenance. This agrees with the status of wife under the maintenance provisions, Sections 125 to 128, of the Criminal Procedure Code, 1973, Hereinafter referred as the Code. As per interpretation, the maintenance provisions of the Code stands above caste, creed, religion and personal laws. Under the Code every wife who is unable to maintain herself, gels maintenance from her husband. There is no difference between divorced need and un-divorced need. The concept of Muslim personal law, shariat, is that divorced lady is stranger to her former husband. So receipt of maintenance from stranger is against shariat. The Muslim intelligentsia considers the decision on Sha Bhanu case as assault and insult on 'shariat'. Protest reverberated through out the length and breadth of the country and it echoed in the Parliament and State Assemblies. This piece of legislation is the result.

The central point of the 'Protection Act' is the maintenance to muslim divorced lady. Under S.3(1)(a), a divorced lady is eligible for fair provision and maintenance within the iddat period from her former husband. This article does not deal with other rights, Iddat is a short period from the date of divorce. Section 4 gives authority to the Magistrate to order maintenance after iddat: period, if such lady remains not remarried and is unable to maintain herself. The obligation of maintenance goes to her relatives who inherits her properly. State Wakf Board is the last resort. A plain reading of the relevant sections gives the impression that divorced lady gets maintenance from her former husband during iddat period and not after.

Various High Courts have interpreted sections 3(l)(a) and 4 of the Protection Act. A Full Bench of Andhra Pradesh High Court in Usman Khan Bahami v. Fathimynisa Begum, decides that liability of husband to maintain a divorced lady limits it) iddat period, 1990 Cri. L.J. page 1364. The same High Court repeats the decision in Shaik Dada Sahab v. Shaik Mastan Bee, 1995 Cri. L.J. page 696. The Calcutta High Court in Abdul Rasheed v. Sulthana Begum, 1992 Cri. L.J. page 76, Madhya Pradesh High Court in Nooran Nisha and another v. Maqsood Ahumed, 1994 Cri. L.J. page 3129 and the Madras High Court in Raja Mohammed v. Moimoon, 1992 KLT SN page I. agree with Andhra decision.

The Kerala High Court in AH v. Sufaira, orders to pay maintenance during iddat and after- (1988 (2) KLT page 94). With respects, I submit the other High Courts apply the Protection Act, direct and the Kerala High Court relies texts and interpretation of words. The Kerala decision imposes heavy burden on the former husband and others limit during iddat period. A final and uniform decision rests with the Hon'ble Supreme Court. In fact, the Protection Act un-protects the muslim divorced lady but protects Shariat.

"Costly Advice - Supreme Court Structures"

(By Justice V. Bhaskaran Nambiar, Former Judge, High Court of Kerala)

When an Advocate General filed a 'Memo' in the High court "to appraise the High court of the correct constitutional position", the learned Judge asked, "Correct, according to whom? The Advocate General replied, "correct, according to me, till your lordship decides otherwise".

The opinion of a counsel is meant to advise the client about the correct legal position on matters on which his opinion is sought. The opinion may be accepted or rejected by Court, but that does not affect die Counsel as long as the opinion was rendered bona fide and after an application of the mind to all relevant facts and the law on the point. The opinion of the Advocate General has greater weight in view of his pre eminent position as the top constitutional adviser to the State.

The recent decision of the Supreme Court directing payment of exemplary costs even at the admission stage of a Special Leave Petition is significant in that ordinarily costs arc directed when the opposite side appears and not earlier, and costs arc directed to be borne by the parties and not by their Counsel. "The term costs signifies the sum of money which the court orders one party to pay to the other party in action as compensation for the expenses of the litigation".

There were times when the Counsel for the Suite fell ashamed when the appeal or petition filed at his instance and on his advice was dismissed in limine m the admission stage without notice to the other side when no case was made out in court. Years back, in the Madras High Court, an application for leave to appeal against an acquittal in a Food Adulteration case was filed by the Slate. Under the Food Adulteration Act, as it then stood, sale of food article in which an ingredient was adulterated was an offence. One person was charged for selling sweets prepared in ghee which was found to be adulterated. The court acquitted the accused on the ground that, ghee was not an ingredient of the sweets sold. An appeal against acquittal was advised by Counsel for the State and when the leave to appeal came up for hearing before a Division Bench, the Division Bench dismissed the same stating that ghee was only a cooking base and not an ingredient. It was observed that if ghee was used to fry fish, ghee does not become an ingredient of fish. The Counsel blushed and then sat. Of course, the Act was subsequently amended.

Times have changed and opinions arc given freely and dismissal at the admission stage is treated as a mailer of course, affecting none! The decision of the Supreme Court should therefore alert any counsel to show a greater sense of responsibility in advising the State or party to file appeals/petitions before the higher courts in the land.

The judgment of the Supreme Court highlights two aspects

(i) that it is not ordinary costs that have been awarded, but exemplary costs

(ii) that the persons responsible for filing the Special Leave Petition should share the burden of paying the costs.

In an ordinary eviction matter under the Rent Control Act, a fight between landlord and tenant, the State sought to be impleaded in Court.

The High Court rejected the application observing thus:

"In this connection it may also be observed that there are hundreds of petitions before the Rent Control Courts on the ground of reconstruction. We have not come across to any other instance where the State wanted to get itself impleaded in any such proceeding. The State is not a necessary or proper party in these proceedings".

Still the State chose to file the Special Leave Petition before the Supreme Court. The Supreme Court held thus:

"We find from the records that the High Court is well justified in not only not impleading the State, but practically monitoring the construction. It is obvious from the above facts that the landlady had abused the process of the court, obtained possession of the demolished building from the tenant and had it demolished but made no reconstruction. Every attempt was made to nullify the order of the court. When it found impossible to get the reconstruction stalled and all possible and conceivable obstructions put in the way of the tenant for reconstruction were removed and in that process obviously at the behest of the son of the landlady not only the Municipality lent its power but the State machinery was geared up to scuttle the construction as per orders of the Court. Every attempt to nullifying the orders of the court proved abortive. Even the observations made in the impugned order did not impress upon the State. Thereby as stated earlier the officers concerned representing the State not only behaved in an irresponsible way, but actively aided to sabotage the implementation of the orders of the court. Thus this is the case of abuse of process of the court without responsibility. Thus we find that this is a case where all the persons responsible to take decision to file Special Leave Petition should bear the burden. We accordingly award exemplary cost of Rs.10,000/- on them".

"Therefore, we feel that it is a case where all the personnel responsible to take the decision to file the Special Leave Petition and the counsel that advised the Government to file the Special Leave Petition should pro rata bear the cost".

In fact, the Supreme Court prefaced the judgment thus:

"This is a classic case of not only smack of reasonableness in pursuing the cause, but also the State to actively assist a party who flouts the law and abuses the process of the Court."

It is this judgment which has given rise to discussions in the Assembly and outside, as to who should be made responsible to pay the costs. It is clear that the Supreme Court has not made the State Government liable to pay the exemplary costs. It has made the persons responsible to take the decision to file the Special Leave Petition and the counsel that advised Government to file the appeal to bear the burden of costs. In the ordinary course, the identification of the persons and counsel responsible for filing the Special Leave Petition should pose no problem as they would be borne out by the records.

It was my experience as Advocate General that Government usually decides to move the Supreme Court only on the advice of the Advocate General. Even if the Government takes a tentative decision to move the Supreme Court, they wait till they obtain the Advocate General's views. If the Advocate General opines against filing and the government are inclined to file, discussion with the Advocate General follows and the decision is taken invariably accepting the advice of the Advocate General. In the present case therefore what has to be looked into is when the Government took the decision to file the Special Leave Petition. The decision of the Government is not that of the lowest Assistant in the Secretariat who may make his notes in the file but the decision of the Secretary of the concerned Department or the Law Secretary if he was consulted. If the decision was taken on the advice of the Advocate General he becomes the counsel responsible for filing the Special Leave Petition. It may not be the Government Pleader who may initially give opinion that an S.L.P may be filed should be made responsible for filing the S.L.P. because his views are only tentative and subject to the scrutiny and examination of the Advocate General on whom rests the responsibility to take a decision and advise the Government.

The Supreme Court has awarded not ordinary costs but exemplary costs reflecting on the conduct of the person responsible for filing. There is no judicial censure of the Government but there is a judicial castigation of the persons responsible for filing the Special Leave Petition.

The judgment of the Supreme Court is thus an eye opener of all in the matter of filing appeals/petitions before the highest court in the land.