The law relating to a
Joint Hindu Family governed by the Mitakshara law has undergone unprecedented
changes. The said changes have been brought forward to address the growing need
to merit equal treatment to the nearest female relatives, namely, daughters of
a coparcener. The section stipulates that a daughter would be a coparcener from
her birth, and would have the same rights and liabilities as that of a son. The
daughter would hold property to which she is entitled as a coparcenary
property, which would be construed as property being capable of being disposed
of by her either by a will or any other testamentary disposition. These changes
have been sought to be made on the touchstone of equality, thus seeking to
remove the perceived disability and prejudice to which a daughter was
subjected. The fundamental changes brought forward about in the Hindu
Succession Act, 1956 by amending it in 2005, are perhaps a realisation of the
immortal words of Roscoe Pound as appearing in his celebrated treaties, The
Ideal Element in Law, that “the law must be stable and yet it cannot stand
still. Hence all thinking about law has struggled to reconcile the conflicting
demands of the need of stability and the need of change”.
Section 6 of the
Hindu Succession Act, as amended, stipulates that on and from the
commencement of the amended Act, 2005, the daughter of a coparcener shall by
birth become a coparcener in her own right in the same manner
as the son. It is apparent that the status conferred upon sons under the
old section and the old Hindu Law was to treat them as coparceners since
birth. The amended provision now statutorily recognises the rights of coparceners
of daughters as well since birth. The section uses the words in
the same manner as the son. It should therefore be apparent that both the
sons and the daughters of a coparcener have been conferred the right of
becoming coparceners by birth. It is the very factum of
birth in a coparcenary that creates the coparcenary, therefore the
sons and daughters of a coparcener become coparceners by virtue of
birth. Devolution of coparcenary property is the later stage of and a
consequence of death of a coparcener. The first stage of a coparcenary is
obviously its creation and is well recognised. One of the incidents of
coparcenary is the right of a coparcener to seek a severance of status. Hence,
the rights of coparceners emanate and flow from birth (now including daughters)
as is evident from sub-sections (1)(a) and (b). Danamma v. Amar, (2018) 3 SCC 343
The intention of the legislation is at least
to consider the rival contentions of the parties to matrimony and when there is
sufficient material on record to show that the ingredients under Section 13 of the
Hindu Marriage Act are made out, and under the given circumstances there is
cruelty, the Court should either make effort to settle the dispute or
relationship has to be brought to a complete end. One party to the proceeding
cannot be permitted to take advantage and cannot be permitted to abuse the
process of law court and on the other hand simultaneously resorting to all the
process of misbehaving with the husband and harassing him. Such type of
attitude by the respondent (wife) cannot be permitted coupled with the fact
that the order happens to be an ex parte order because the wife has
deliberately avoided participating in the proceedings, despite the notice being
served by the publication which would deemed to be served under law. Anirudh Guru Pratap Singh v. Harmit Kaur, 2017 (125) ALR 358.
It is settled that the property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship. Shyam Narayan Prasad v. Krishna Prasad¸ (2018) 7 SCC 646.
In Kale v. Director of Consolidation, (1976) 3 SCC 119, it was held as under:
“By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made.
The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term ‘family’ has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have spes successionis so that future disputes are sealed forever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. Rajni Sanghi v. Western India State Motors Ltd., (2015) 16 SCC 631.
While there can be no doubt that a Hindu Widow is not a coparcener in the HUF of her husband and, therefore, cannot act as a karta of the HUF after the death of her husband, the two expressions i.e. karta and manager may be understood to be not synonymous and the expression “manager” may be understood as denoting a role distinct from that of karta. Hypothetically, we may not take the case of HUF where the male adult coparcener has died and there is no male coparcener surviving or where the sole male coparcener is a minor. In such a situation obviously the HUF does not come to an end. The mother of the male coparcener can act as the legal guardian of the minor and also look after his role as the karta in her capacity as his legal guardian. Such a situation has been found to be consistent with the law by the Calcutta High Court in Sushila Devi Rampuria v. ITO, (1960) 38 ITR 316 rendered in the context of the provisions of the Income Tax Act and while determining the liability of such an HUF to assessment under the Act.
A similar proposition of law is also to be found in Dhujram v. Chandansingh, 1974 MPLJ 554 though, again, in a littled different context. The High court had expressed the view that the word “manager” would be consistent with the law if understood with reference to the mother as the natural guardian and not as the karta of the HUF. Shreya Vidyarthi v. Ashok Vidyarthi, (2015) 16 SCC 46.
Filed under Hindu Law, HUF
The Hon’ble Apex Court in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, stated in detail the law relating to custody in England and America and pointed that even in those jurisdictions, welfare of the minor child is the first and paramount consideration and in order to determine child custody, the jurisdiction exercised by the court rests on its own inherent equality powers where the court acts as “parens patriae”.
The word welfare used in Section 13 of the Hindu Minority and Guardianship Act, 1956 has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.
Second justification behind the “welfare” principle is the public interest that stand served with the optimal growth of the children. It is well recognized that children are the supreme asset of the nation. Rightful place of the child in the sizeable fabric has been recognized in many international covenants, which are adopted in this country as well. Child – centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation. Vivek Singh v. Romani Singh, (2017) 3 SCC 231.