FEMALE
COPARCENARY
Hindu women's right to property in a Hindu joint family has
its own long-drawn history, which has evolved over a period of time. The
coparcenary system in the Mitakshara Hindu Joint Family had been very
patriarchal as it specifically pertained to the male members of the family who
had the ownership of the joint family property or the coparcenary property.
Women's incapacity to offer spiritual ministrations and their ineligibility to
fulfil their father's pind daan (pious obligation), was primarily the reason
why women were denied the right to coparcenary property and were given the bare
minimum rights of residence and maintenance. The ownership of the property was
thus only in the hands of the male members of the family.
While the rights in the coparcenary property came to the
forefront and came to be crystallized by the Hindu Succession
(Amendment) Act of 20051, the idea originated in an extremely discreet form in Section
19 of the Hindu Adoption and Maintenance Act2, which on its face simply seems to be a welfare-oriented
provision for those women who are unable to maintain themselves on the death of
their husbands. However, a deeper understanding of this provision brought to
the forefront a tussle between women's rights and coparcenary property. Section
19 of the Hindu Adoption and Maintenance Act, 1956 provides that “A Hindu wife,
whether married before or after the commencement of this Act, shall be entitled
to be maintained after the death of her husband by her father-in-law”3, and this obligation is maintainable only by the shares in
the coparcenary property. Thus, it is quite prominent that even a widow has an
indirect share in her deceased husband's coparcenary property and is entitled
to be maintained by the same. This was codified for the very first time by the Hindu
Adoption and Maintenance Act, 1956. It
is also further explained in the section and was held in the case of Raj
Kishore Mishra v Meena Mishra4, by the
Allahabad HC which decided that right of widows to claim maintenance from their
father in laws would arise only if the widow is unable to maintain herself from
the estate of her husband, her parents or her children. Similarly, it was held
by the Madras High Court in the case of Animuthu v. Gandhimmal5 that the liability of the father-in-law comes to an end when
the widow is remarried or she has obtained a share in the coparcenary
properties during partition. But her right to a share in the separate property
of her husband or in his interest in coparcenary property cannot be divested.
On the other hand, the Dayabhaga school of law was more
progressive in terms of the equal treatment of all heirs of the predeceased
coparcener regardless of their gender. In the Mitakshara school of law, there
was a unity of possession and community of interest which would devolve based
on the doctrine of survivorship thereby ensuring that the shares of neither of
the sons were determined until the partition was executed and interest by birth
remained restricted to the lineal male descendants up to the third degree.
However, the concept of coparcenary as has been applied in the Mitakshara
school of law where everyone has an interest by birth is not the same as the
Dayabhaga school of law where a person gets an absolute right in the property.
In Dayabhaga school of law, coparcenary property would devolve only on the
death of the previous coparcener by the means of inheritance, thereby ensuring
that each of the heirs irrespective of his/her gender was a co-owner of the
property. This ensured that there was no imbalance between the various branches
within a Hindu Joint Family during the devolution of the property by virtue of
the concentration of a larger number of male heirs in one branch as opposed to
the other and thereby avoided any discrimination in the sharing of the property
by virtue of having a girl child. As every member of the family is entitled to
a share in the joint family property as a co-owner in a Dayabhaga family, a
woman in the family is also given the right to co-own the property. However, in
the case of a woman born in a Mitakshara joint family, until 2005, she only had
the right to be maintained and had no share in the joint family property. Thus,
the rights of women differed based on the branch of Hindu joint family that
they were born in. This explains the inherent discrimination that women faced,
not just by virtue of gender, but due to the difference in the schools of law
that applies to their families.
Succession was a subject which was a part of the concurrent
list, and as a result of this, several states amended provisions of the Hindu
Succession Act, 1956 to ensure that women also enjoyed coparcenary rights in
line with their male counterparts. It was in 1975, that Kerala abolished the
joint family property and ensured that succession went by inheritance to both
men and women rather than granting joint property ownership only to men6. States such
as Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu took a more reformist
approach. State amendments to the Hindu Succession Act, 1956 among these states
were enacted to grant daughters coparcenary rights equivalent to those of the
sons and to abolish the dowry system through positive empowerment steps. This
advantage, however, was strictly for daughters who were unmarried when the
amendment came into force; the daughter's eventual marriage did not strip her
of the property rights that had already been vested in her.
While the states of Andhra Pradesh, Karnataka, Maharashtra
and Tamil Nadu recognized the right of those women who were unmarried when the
amendment came into force, there were states such as Uttar Pradesh7 that continued
to deny women coparcenary rights while recognizing their interest in the joint
family property by virtue of Section 3(2) of Hindu Women's Right to Property
Act 19378. However, the infirmity of the state enactments of the mentioned
states was the exclusion of the right to coparcenary property of women, who
were married prior to the commencement of the respective state amendment acts,
while, the aforementioned right was available to a woman who got married after
the commencement of such Acts. This led to a scenario where some women were
granted the right to coparcenary within a joint family, while the others were
denied the same based on the state that they resided in, thereby creating a
different set of rules for women hailing from different states.
Several Supreme Court judgments such as those which had been
laid down in the cases of Savita Samvedi v. Union of India9 held that the distinction between a married and an unmarried
daughter with respect to coparcenary rights may be unconstitutional. In the
case of Narasimaha Murthy v. Sushilabai10 it was held by the Supreme Court with reference to section
23 of the Hindu Succession Act, 1956, that
even when a sole surviving male heir in the joint family is alive, alongside a
female heir, the female heir does not have the right to claim partition of the
dwelling house of a dying intestate, unless the male sole surviving coparcener decides
to separate his own share or ceases to occupy it or lets it out11. It was on this basis
that the 174th Law Commission Report recommended doing away with some of these gender-based
inequalities which were present in the Hindu Succession Act,
1956, and had been conflicting with the
fundamental rights which are provided by the Constitution of India12,
and thereby amend the act in a manner that did not disadvantage women on the
grounds of gender13. This was the reason and objective behind the
introduction of the Hindu Succession (Amendment) Bill, 2000 which after deliberation
was passed as the Hindu Succession (Amendment) Act, 2005.
The Bill proposed to remove the discriminatory provisions of
the Hindu Succession Act 1965, which, under section 6, recognized only male members of the
family as coparceners, and in case there was a female member alive in the
family at the time of the death of the deceased coparcener, the joint family
property would not be passed on by the doctrine of survivorship, as would have
happened otherwise, but instead through inheritance14. The Bill proposed to remove this inherent
discrimination by amending the section and providing that even daughters are
coparceners in a Hindu joint family by birth, and have the same rights and
share in the coparcenary property as those of a son. The bill also proposed to
remove other discriminatory sections such as section 23 and 24 that did not give a woman the right to ask for partition,
unless a male member asks for it15.
Most parliamentarians were in favour of the provisions that
were proposed by the Hindu Succession (Amendment) Bill, 2000, but were of the opinion that while this bill proposed to do
away with the gender bias that was present in the Hindu
Succession Act, 1956, it had the potential to open the
floodgates of litigation and affect issues such as the fragmentation of
agricultural land holdings16.
However, despite looking for an immediate answer to the various issues that the
act was likely to raise in the future, the bill was passed in 2005. While the
2005 Amendment Act provided coparcenary rights to women by amending section 6
and repealing several discriminatory sections 4(2), 23, and 24 there were still
various obstructions and hindrances which were created by the various
interpretations which had been adopted by various High Courts while
adjudicating such cases. While the amended section 6 of the Act provides that
this right of a woman to get a share in the joint family property would not
affect the partitions and alienations that have taken place before 20th
December 200417, there have
been several different interpretations of the courts with regards to the
application of this section depending on whether the woman was born
before/after the amendment or if the father had died before/after the passage
of the amendment.
The passage of the Hindu Succession (Amendment) Act, 2005
rendered inoperative all those state amendments which were conflicting with the
amendment passed by the central government, which would prevail to the extent
of the inconsistency. However, the situation in Kerala was slightly different.
The state of Kerala had passed the Kerala Joint Family System (Abolition) Act
of 197518, which had
abolished the concept of joint family property and the concept of right by
birth in the family estate. It was on this basis that the High Court of Kerala
in the case of Kali Ammal v Valiyammal19 held that on the date of the commencement of the Hindu
Succession (Amendment) Act, 2005 no joint family system existed in Kerala as it
had been abolished in 1975 and since no joint family system was prevailing,
there could be no claim of right by birth by anyone.
Despite having introduced an amendment that was to apply
uniformly across the territory of India, several high courts interpreted the
amended sections in a very different manner, thereby continuing to create disparity among women from different states. In the case of Prithviraj
v Neelamma20, it
was held by the Karnataka High Court that the amended provisions of the section
would apply only if the previous coparcener was alive during the commencement of the Amendment Act of
200521. This court thus
interpreted the law to have prospective application as it was only the law on
the date of opening of the succession which was to apply. However, in the case of Badrinarayan
Shankar Bhandari v Omprakash Shankar Bhandari22, the Bombay High Court took a view contrary to that of the
Karnataka High Court and held that while section 6(1)(a) of the Amendment Act
would be prospectively applied, Section 6(1)(b), Section 6(1)(c) and Section
6(2) of The Hindu Succession Act 2005, would be retroactively applied. This meant that irrespective
of the date of birth of the woman, the amended section 6 would apply to her as
long as she was alive on the date of the passage of the Hindu Succession
(Amendment) Act, 2005. This interpretation came closest to that which was given by the Supreme Court in the case of Vineeta
Sharma v Rakesh Sharma23 which also interpreted section 6 of the amended act to apply
retroactively rather than prospectively or retrospectively, which is explained
further in the article.
The Supreme Court in the case of Prakash
v Phulavati24 (2015)
upheld the decisions that had been delivered in the past by upholding the
appeal and held that the text of the Amendment Act as has been mentioned in section
6(1) and 6(3) of the Hindu Succession Act, 2005 had
to be construed in an ordinary sense and the argument that since the amendment
was a piece of social legislation it could be applied retrospectively could not
be upheld as the retrospective application of the act had not been mentioned
explicitly and thus could not be the implied intention of the legislature. It
thereby held that the rights under the amendment were applicable to living
daughters of living coparceners on the 9th September 2005, regardless of what
day the daughter was born. It also held that all partitions and alienations
which had taken place before 20th December 2004 were valid and could not be
reopened as even statutory notional partitions were legally enforceable as the
rights of the heirs get crystallized even if the partition is not executed by
metes and bounds. The judgment delivered in the Phulavati case was also upheld
by the Supreme Court in the case of Danamma
@ Suman Surpur vs Amar25 (2018) wherein it upheld the retrospective application of
the Amendment Act but extended its application to the cases involving partition
and so on that had been initiated before the enactment but were pending before
the courts on the 9th September 2005.
These differing stances of the courts with regards to the
interpretation of the amendment and its intention was cleared by the Supreme court in the case of Vineeta
Sharma v Rakesh Sharma26, in 2020. The court opined that the objective of the
amendment was to remove the gender discrimination that the Act of 1956 had
brought out with it, and the application of the amendment is to be done with
the same objective. While the amended section 627
does say that there will be no retrospective effect of the inclusion of a woman
in coparcenary to partitions and alienations that have been effected before
2005, this retrospective application only pertains to those cases where the
partition has taken place, and not to those where the woman was born or where
the father died, and thus, this is a retroactive application. The two
conditions which now have to be satisfied with the retroactive application of
the Amendment Act are that the women must have been born and should be alive
when the Amendment Act of 2005 was passed. The right of a woman to be a
coparcener is given to her by birth and does not get affected by the death of a
previous coparcener/father and neither does the coparcenary change or come to
an end in any way. Thus, the coparcener, from whom the daughter is inheriting
by virtue of her being coparcener, need not be alive as on the commencement of
the Amendment Act of 2005.
While the Hindu Succession (Amendment) Act,
2005 did away with those provisions that
were promoting a gender bias and thereby conflicting with the provisions of the
Indian Constitution, the guarantees and the benefits that this act aimed to
bestow continue to remain very uncertain as the courts, in the span of 15
years, have interpreted the act very differently in different instances, which
is visible by the stark contrast in the interpretations adopted by the courts in the case of
Prakash v Phulavati28
and Vineeta Sharma v Rakesh Sharma29. With the rights having been made available to women, their
ability to seek the right of maintenance
under section 1930
of the Hindu Adoption and Maintenance Act has weakened considerably, as some women now legally have
coparcenary property and means to maintain themselves, thereby releasing the
members of the marital home from being responsible for their maintenance. So
while a woman is still stuck in the lengthy litigation for the determination of
her share in the coparcenary property of her father's joint family, which continues to remain disputed for long,
her husband or father – in-law, who were required to maintain her, use the
presence of coparcenary property of her father's family as an excuse to deny
maintaining her. This denial can be justified based on the provisions of section
25 of Hindu Marriage Act and section 18 and 19 of Hindu Adoption and
Maintenance Act, which provide that maintenance is to
be given to a wife/widow by the husband or the father-in-law only in case the
woman is unable to maintain herself through her own or her father's estate or
property, which includes her share in the coparcenary property.
While we have come a long way from the point where women
were given a meagre right of residence and maintenance till a place where women
are now coparceners by birth in their own right and are entitled to the same rights as those of a son, the consequences of the Vineeta
Sharma v Rakesh Sharma31 case are yet to be observed. However, it can be said with
utmost certainty that the Amendment Act of 2005, and the progressions in it
that have been brought about by the Honourable court in the case of Vineeta
Sharma v Rakesh Sharma32, have aimed to remove gender discrimination in a Hindu Joint
family, at all levels. Subsequently, males and females are now seen at the same
threshold and are given the same rights as one another. However, there are a
few conflicts between the provisions and the implementation of these statutes,
and only judicial interpretations overtime will give us a fair idea whether the
purpose and intent of these welfare legislations are being fulfilled with
regards to the benefit of the stakeholders of these acts i.e. women.
The authors are of the opinion that the interpretation of
the various provisions involving the determination of the amount of maintenance
that is to be granted to a spouse such as Section 19 of The Hindu Adoption and
Maintenance Act, 1956 and Section 25 of The Hindu Marriage Act, 1955, should be
done in a harmonious manner along with the provisions of The Hindu Succession
(Amendment) Act, 2005 and the interpretation of the respective statutes with
respect to their application, needs to be done in a way for the attainment of
their essence. The golden rule of interpretation should be applied so as to
ensure that the potential for misuse does not disadvantage the women for whose
benefit these legislations were passed. The Hindu Succession (Amendment) Act,
2005 granted women coparcenary rights in the same sense as those that were
granted to men and thus for all purposes such a right would be included within
the ambit of a women's property or her independent source of income. Having
said this, it is important to note that with the amendment in The Hindu
Succession Act, 1956, a woman has now been granted an absolute right in the
joint family property of her father, but her share in the coparcenary property
remains fluctuating and variable until a partition is affected. Further, the
Indian courts have adopted various interpretations while adjudicating matters
related to The Hindu Succession (Amendment) Act, 2005, and these have been
evolving even fifteen years after the passage of the Amendment Act as has been
seen in the case of Vineeta Sharma v Rakesh
Sharma33. Under such a scenario, extending the meaning of property to
include such an undefined share in the coparcenary property while deciding the
quantum of maintenance under The Hindu Marriage Act, 1955 or
The Hindu Adoption and Maintenance Act, 1956 is
likely to be used as an escape from maintaining her in accordance with his
standard of living by her husband. While coparcenary property of a Hindu joint
family may be included in the calculation of income tax, and the consequent
income tax returns, it should be excluded while calculating the quantum of
maintenance to be granted under various sections of the several statutes that
have been mentioned above. The primary reason behind this is that provisions dealing with the income from house property, such as
sections 2234, 2335 and 2636 of the Income Tax Act37 are based on the precondition that the
share of an individual is defined and ascertainable. The shares within the
coparcenary property are fluid and undefined until partition is affected.
Further, while determining the quantum of maintenance that is to be paid to the
spouse, one needs to submit one's income tax returns, which includes an account
of such coparcenary property and the notional income which may flow from it and
may be used to enhance the quantum of maintenance to the disadvantage of the
other spouse and thus, its exclusion while calculating the maintenance would be
a fairer method of calculating maintenance.
The authors would like to elaborate on this by highlighting
the various scenarios that are likely to arise in light of such
interpretations. These are the probable exceptional situations which may arise
which the judiciary will have to interpret, taking into consideration the
various statutory provisions.
1. When the wife has no independent source of income but is
a coparcener in her father's joint family
a. When the husband is richer than
the wife
If the husband's income (y) is Rs.50 and the wife's income
from the coparcenary property (x1) is Rs.20, and her independent source of
income (x) is Rs.0, then we can safely say that x1+x<y.
I. Here, if the coparcenary property of the wife is included
in the ambit of “property” as under of The Hindu Adoption and Maintenance Act, 1956,
or section 25 of The Hindu Marriage Act,] depending on the value of her
separate income and the coparcenary property, she can be said to maintain
herself to some extent.
Thus, If the coparcenary property is included in the
calculation of the maintenance, in this scenario the standard of living of the
couple was Rs.70, and thus the husband may have to maintain the wife for the
value of Rs.35 (half of the value of the standard of living of the couple). She
may thus have to be maintained for the value of (35-20) i.e., Rs.15.
II. However, in a scenario where the wife's coparcenary
property is excluded from the total property of wife, then for the purpose of
calculation of maintenance (x<y), the standard of living of husband would be
Rs.50, and thus the wife may have to be provided for to the extent of Rs.25 (half
of the the standard of living of the couple). Since coparcenary property is not
included in the calculation of husband may have to maintain her to the extent
of (25-0), i.e., Rs.25.
From this illustration, it is evident that if the wife comes
from a rich family, the husband may escape from the responsibility of
maintaining his wife to the extent of (25-15) Rs.10. If the wife's coparcenary
property (x1) which in this case is variable, is excluded from the calculation
of maintenance, each man irrespective of his wife's family background may have
to maintain her to the same extent. However, if the coparcenary property is
included within the ambit of property and thereby included in the calculation
of maintenance, it may create a gap among men whereby the responsibility of
those married to women hailing from rich families might be diminished in
relation to those married to women coming from a poor familial background. In
an age where for some miscreants, marriage may have lost its sanctity and may
have become a money-making business, this difference might promote social evils
such as increasing the inclination to marry rich women with the objective of
getting away from the responsibilities of maintenance.
b. When the husband is poorer than
the wife.
If the husband's income (y) is Rs.50, the wife's independent
source of income (x) is Rs.20, and her income from the coparcenary property (x1)
is Rs.50, then we can safely say that x+x1>y.
I. In a case where the wife's property is included in the
definition of “property”, she may be considered to be in a position to maintain
herself, and her husband as well. In this scenario, as per the living standards
of the couple (Rs.120), the husband might have to be maintained to the extent
of Rs.60 (half of the value of the standard of living of the couple). Thus, the
wife being richer than the husband, she may have to maintain him to the extent
of (60-50) i.e., Rs.10. This may become a cause of action under section 25 of
the Hindu Marriage Act, 1955 for the husband to swindle his wife's coparcenary
property in the form of maintenance, even if her independent source of income
is lesser than his.
II. In a case where the wife's coparcenary property is
excluded from the definition of “property” as under the provisions of
maintenance under the various statutes, then (x<y). In this instance, the
standard of living of the couple would be Rs.70, and since the wife's
independent source of income is lesser than that of her husband, she might have
to be maintained to the standard of Rs.35 (half of the value of the standard of
living of the couple). The husband in this scenario may have to maintain her to
the extent of (35-20), i.e., Rs.15. If coparcenary property is excluded from
the definition of “property” for the calculation of maintenance under the
provisions of the several statutes, it might ensure that the coparcenary
property does not become a means through which the husband can swindle his wife
who hails from a rich background. This may discourage those people who get
married with the sole intent of swindling the wife who hails from a rich
background in the form of maintenance. The downside to excluding coparcenary
property would be that the husband being poor, may still have to maintain the
wife in accordance with his own status and may be pressurised into paying
alimony to his wife who has enough to her name in the form of her coparcenary
property.
Maintenance Chart
Plotting the points of the various instances of the property
of husband varying with the property of their wives and the alimony that they
eventually have to pay, we observe the above graph. Here, the blue line
represents the property of the husband, which is kept constant at 50 for the
ease of comparison and understanding, and the green line and the yellow line
represent the value of the wife's property that is used in the calculation of
maintenance, and the value of maintenance respectively. Throughout the graph,
we see an inverse relationship between the property of the wife and the alimony
that is to be paid to her. It is also observed that as long as the property of
the wife is less than that of the husband (green line is below the blue line),
the husband is required to pay maintenance to her. However, as the value of the
wife's property exceeds that of the husband, maintenance is to be given by the
wife to the husband, and thus, the yellow lines reaches (-10). Here, the
negative sign of the value of maintenance attributes to the fact that alimony
is then paid from the wife to the husband, instead of the other way around,
which has been depicted by a positive sign everywhere else on the graph.
Further, it is observed that in the first and the third
conditions (points), i.e., when the Coparcenary property of the wife is
included in the calculation of her property, the maintenance that the husband
is required to pay to the wife is lesser as compared to the second and the
fourth conditions (points), in which the Coparcenary property is excluded.
Thus, this substantiates the initial observation of the
authors that the inclusion of the Coparcenary property of the wife in the
definition of her property for the purposes of calculation of maintenance, can
be used by the husbands as an excuse to diminish their obligations to pay
maintenance to the wives.
Another important observation is when the green line
intersects with the blue line, at (y=50), i.e. when the values of the
properties of the two spouses are equal, the yellow line intersects the x-axis
at the same vertical axis as that of the intersection of the green and blue
lines. This explains that when the values of the properties of the spouses are
equal, no maintenance is to be paid by either spouse to the other.
It is important to note here, that this is a mathematical
approach to the calculation of maintenance, but in practical application,
depending on the facts and circumstances of the cases, the courts might
increase/decrease the value of maintenance that is to be paid by either of the
spouses. The next section further explains how the values of maintenance varies
with the application and interpretation of different statutes
2. Differing alimony under various statutes
a. If we were to look at the manner in which the provisions
of The Code of Criminal Procedure, 1973 (section 12538),
and The Protection of Women from Domestic Violence Act, 2005 (section 2039) have been constructed,
it becomes clear that the responsibility on the husband to maintain his wife is
greater. Here, the provisions do not explicitly mention the scope of value of
the maintenance that the husband may be required to give to the wife. The limit
of the 'ability of the wife to maintain herself is not provided in the sections
and thus, the court can interpret these sections in a broader way to order the
husband to give maintenance to the wife even if she has all the means to
maintain herself. This was also held by the Bombay High court in the case of Sanjay
Damodar Kale v. Kalyani Sanjay Kale40, and by the Supreme Court in the case of Sunita
Kachwa v Anil Kachwa41, that just the fact that the wife had a considerable source
of income, cannot be used as a ground to reject her claim for maintenance.
Further, while explaining the variation in the scope of
section 20 of The Protection of Women from Domestic violence Act being much wider than that or Section 125
CrPC, it was observed in the case of Shome Nikhil Danani v. Tanya
Banon Danani42 by the Delhi High Court, that, “While Section 125 CrPC
talks only of maintenance, Section 20 DV Act stipulates payment of monetary
relief to meet the expenses incurred and losses suffered as a result of the
domestic violence including but not limited to loss of earning, medical
expenses, loss caused due to destruction, damage or removal of any property
from the control of aggrieved person.”
b. In case the couple gets married under the Special Marriage
Act, then as under section 37, there being mention of property or independent
source of income as being a metric that determines the amount be granted as
maintenance, the husband is to provide maintenance and support to his wife. The
language of The Special Marriage Act uses the words 'maintain' and 'support'
which are interpreted in broader sense so as to encompass “all
such means of living that would enable one to live in degree
of comfort suitable and becoming to his station of life”43, as
compared to The Hindu Adoption and Maintenance Act, 1956 which provides
maintenance only when the wife is 'unable to maintain herself.
c. Under The Hindu Adoption and Maintenance Act, 1956
(sections 18, 19), a husband is to maintain wife only if she is 'unable to maintain
herself. This takes into account the various scenarios that been explained in
the previous examples, with regards to the value of the total property of the w
compared to that of the husband.
d. Section 2444 and Section 25 of the Hindu Marriage
Act have made use of different criteria constructing the definition of property
and income. While Section 25 mentions 'other property' calculating the
maintenance of either spouse, this condition is absent while determining the
maintenance to be provided pendente lite. This difference in the construction
of section 24 and section 25 o Hindu Marriage Act, 1955 should be constructed in a manner that is
harmonious with the way the author proposes to apply section 25. This means
that while calculating the 'other property' under section 24 of the Hindu
Marriage Act, the 'other property' should exclude coparcenary property, without
which this provision can become a means of mischief through which miscreants
may find means to deny their wives maintenance by shielding themselves with
their wives' coparcenary property. Section 25 of the Hindu Marriage Act, 1955
provides for maintenance to be given by one spouse to the other based on who
requires it, and after calculating the value of the property or income or
either spouses and the differences between them, as explained previously. In
this scenario, the husband can actively pursue for maintenance from his wife's
coparcenary property, unlike under the other provisions where he can at most
defend his case for denying to maintain his wife in light of her coparcenary
property.
The various statutory provisions along with the amended act
should be constructed in a harmonious manner to ensure that the gap between the
law and the actual application of it does not become a reason to disadvantage
the women for whose welfare they were enacted in the first place. How these
provisions would be interpreted in the future is dependent on how the judiciary
interprets these provisions in such disputes, and only time will tell the
consequences of such acts.
Research Assistants
Aditi Nazre, II year law student at NALSAR University of Law
Shalika, II year law student at NALSAR University of Law
By :
SHIV SHANKAR BANERJEE,
Advocate,
Supreme Court of India
Co-author- Divyastuti,
Advocate and Partner, Parsoons Legal Solutions
___________________________________________________________________________
1. The
Hindu Adoption and Maintenance Act 1956.
2. The
Hindu Adoption and Maintenance Act 1956 §19.
3. Raj
Kishore Mishra v. Meena Mishra, AIR 1995 All 70.
4. Animuthu
v Gandhimmal, AIR 1977 Mad 372.
5. The
Kerala Joint Hindu Family System (Abolition) Act 1975. (Act 30 Of 1976).
6. State
of Uttar Pradesh v. Raja Yadavendra Dutta Dubey Of Jaunpur, (1964) 53 ITR 770.
7. Hindu
Women's Right to Property Act, 1937 § 3 cl.2.
8. Savita
Samvedi v. Union of India, (1996) 2 SCC 380.
9. Narasimaha
Murthy v. Sushilabai, (1996) 3 SCC 644.
10.
The Hindu Succession Act 1956 §23.
11.
12 INDIAN CONST, art 15.
12.
174th Report, Law Commission of India 2000.
13.
The Hindu Succession Act 1956 §6.
14.
The Hindu Succession (Amendment) Act 2005 § 23.
15.
Lok Sabha, 29th August 2005, The Hindu Succession (Amendment) Bill, 2005: LOK
SABHA DEBATE (India).
16.
The Hindu Succession (Amendment) Act 2005 § 6 cl. 1.
17.
supra note 6 at 3.
18.
Kali Ammal v. Valliyammal, (2016)4 KLT 903.
19.
M. Prithviraj and Ors v. Smt. Leelamma N. and Ors., ILR 2009 Kar 3612.
20. supra
note 1 at 1.
21. Badrinarayan
Shankar Bhandari v. Om Prakash Shankar Bhandari, AIR 2014 Bom 151.
22.
Vineeta Sharma v. Rakesh Sharma and Ors., 2020 SCC OnLine SC 641.
23. Prakash
v. Phulavati, (2016) 2 SCC 36.
24.
Danamma @ Suman Surpur v. Amar, (2018) 3 SCC 343.
25. supra
note 22 at 5.
26.
The Hindu Succession (Amendment) Act, 2005 § 6.
27. supra
note 24 at 6.
28. supra
note 22 at 5.
29.
supra note 3 at 1.
30.
supra note 22 at 5.
31.
Id.
32.
Id.
33.
The Income-Tax Act 1995 § 22.
34.
The Income-Tax Act 1995 § 23.
35.
The Income-Tax Act 1995 § 26.
36.
The Income-Tax Act 1995.
37.
The Code of Criminal Procedure 1973 § 125.
38.
The Protection of Women from Domestic Violence Act 2005 § 20.
39.
Sanjay Damodar Kale v. Kalyani Sanjay Kale (2020) 2 AIR Bom R (Cri) 395.
40. Sunita
Kachwa v. Anil Kachwa (2014) 16 SCC 715.
41.
Shome Nikhil Danani v. Tanya Banon Danani, 2019 SCC OnLine Del 8016.
42. Rajesh
Burman v. Mitul Chatterjee, (2009) 1 SCC 398.
43. The
Hindu Marriage Act 1955 § 24.
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