The Court has given progressive judgments on women’s property rights. While some ensured equal rights to daughters even when the father had died, others saw to it that married women were not left in the lurch due to desertion.

By Saju Jakob

A girl child is usually considered a liability in India. Called “paraya dhan”, which translates to “wealth that belongs to another”, she is often in a dilemma between her paternal and matrimonial homes. In addition, her property rights have always been a grey area.

However, in 2020, the Supreme Court delivered two landmark judgments to ensure the rights of women from birth to death and to make them non-dependent on any male or female relative. While Vineeta Sharma vs Rakesh Sharma clarifies all the discrepancies related to the rights of the daughter in her paternal property, irrespective of her marital status, Rajnesh vs Neha ensures the safety of shelter and life if she is deserted by her matrimonial home. The special laws for women owe their roots to Article 15(3) and Article 39 of the Constitution.

The Hindu Succession Amendment Act, 2005, granted equal coparcenary rights in a Mitakshara coparcenary to the daughter in the same manner that a son would inherit by birth. However, the execution of such litigation led to various disputes which the Supreme Court attempted to settle in the Vineeta Sharma case.

Settling the contradictory rulings in Prakash & Ors vs Phulavati & Ors and Danamma@SumanSurpur& Anr vs Amar & Ors, it was held in the former that Section 6 of the Hindu Succession Act does not have a retrospective effect and would apply only when both the father and daughter were alive on the date of commencement of the amendment, i.e., September 9, 2005. In the latter, the Supreme Court gave the daughter an equal share in the father’s property as a coparcener even if he had died prior to the enforcing date of the substituted provision of Section 6.

In the current judgment of Vineeta Sharma vs Rakesh Sharma, the Court made it clear that the daughter will have the same rights and liabilities as a son. As the right of a son is vested onto him as a birthright, the daughter shall also receive such right by virtue of her birth in the family. Therefore, though the right can be claimed with effect from September 9, 2005, the provision is of retroactive application, but operates in futuro. They confer benefits based on the antecedent event.

At the same time, the legislature added a proviso that if there was any partition which had taken place before December 20, 2004, the date on which the Bill was presented in the Rajya Sabha, it shall not be invalidated. Moreover, while on the one hand, the right of dispossession of property to a daughter through testamentary succession is ensured, on the other, “the right of the wife of a coparcener to claim her right in property is in no way taken away”.

The Court had explained the notion of deemed partition stating that when the property remains undivided, the share of the coparcener is not certain and is fluctuating. It increases and decreases with deaths and births in the family.

Survivorship is the mode of succession, not that of the formation of a copar­cenary. Therefore, even surviving children of a pre-deceased daughter or son are given a share. In case the child has also died, then the surviving child of this person would be allotted the same share as the parent if he or she was alive at the time of the deemed/notional partition.

The statutory fiction of partition is far short of actual partition. The purpose of fiction is limited so as to work out the extent of the share of the deceased at the time of his death, and not to affect the actual partition in case it has not been done by metes and bounds. In case of the death of the coparcener, the coparcenary continues and later on, partition takes place between the surviving coparceners. In other words, until a partition is effected by metes and bounds, the daughter cannot be deprived of the benefits conferred by the Act. It does not matter whether the father was alive during the commencement of the Amendment Act, as long as the daughter was alive and the coparcenery existed. Thus, the right of the daughter to claim a share in the property can only be exercised after September 9, 2005, hence providing it a retroactive and prospective effect at the same time.

The Court thus held: “Uncertainty in the right of share in a Mitakshara coparcenary is inherited in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005. It is not to resurrect the past but recognizing an antecedent event for conferral of rights, prospectively.”

However, the judgment makes sure to save the alienation, partition or disposition of the property, which had taken place before December 20, 2004, through actual partition which should be a registered document or have a decree of the court. If a preliminary decree for partition is passed, it will not amount to a partition unless an actual physical partition is carried out pursuant to a final decree.

As oral partitions were the law of the land earlier, Section 6(5) cast a heavy burden of proof upon the proponent of it before it is accepted. The intention of Section 6 is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence.

After clearing the stance of women in inherited property, the Court in Rajnesh (supra) also looked at the plight of deserted women by putting out clear guidelines on claims of maintenance (interim and final). These are as follows:

• The apex court observed that even though a wife can make a claim for maintenance under different or all statutes, a husband cannot be made to pay the maintenance under all the available laws and therefore, held the following directions: “In a subsequent maintenance proceeding, the applicant shall disclose all the previous maintenance proceedings, and the orders passed so that the Court would take into consideration the maintenance already awarded…and grant an adjustment of the amount.”
• Realising the mired situation of payment of interim maintenance, wherein the wife always tries to exaggerate her needs and the husband always tries to conceal his actual income, the Court made it mandatory for both parties to file an Affidavit of Disclosure of Assets and Liabilities in all maintenance proceedings, including one before a Family Court /District Court /Magistrates Court, as the case may be, throughout the country. Further, the Court appealed to state governments to appoint marriage counsellors in Family Courts, as provided under Section 6 of the Family Courts Act, 1984.

Moreover, the “maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum must be adjudged so that the wife is able to maintain herself with reasonable comfort.” The Court further enumerated the grounds for deciding the quantum of maintenance in Part B-III of the judgment.

• The apex court in Rajnesh (supra) made a progressive direction in order to have uniformity and consistency in the orders passed by all courts that maintenance shall be awarded from the date when the application was made before the court as the period during which the maintenance proceedings remained pending is not within the control of the applicant.
• The most challenging issue of the maintenance orders, which is their execution, is dealt with by the Court by stating that the order can be enforced under Section 28A of the Hindu Marriage Act,1956; Section 20(6) of the DV Act, Section 128 of the CrPC, a money decree of a civil court as per the provisions of the CrPC (more particularly Sections 51, 55, 58 and 60 read with Order XXI), or by initiating contempt proceedings for wilful disobedience. The Bench said that if the execution is not enforced even by the given procedural remedies, the defence of the respondent can be struck off as a last resort if the courts find default to be wilful and contumacious.

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Undisputedly, 2020 has put a lot of grey areas in almost every field of legal interpretation due to unprecedented hardships faced by the citizens. Amidst the uncertainties and upcoming disputes, the Supreme Court has provided illuminating judgments on the most prevailing social problem, i.e., heterogeneity in the orders passed by various courts with regard to women’s property rights. Whereas Vineet Sharma vs Rakesh Sharma ensured equal rights of property to daughters even when the father had died before the Act came into effect, Rajnesh vs Neha made sure the married women are not left in the lurch due to desertion by husbands.

—The writer is an Advocate, Supreme Court of India

Recently, there was a private member’s bill proposing incentives to promote the two-child norm. Shiv Sena MP Anil Desai proposed that the Constitution be amended to introduce a new provision incentivising those adhering to the two-child norm. The bill is framed keeping in view India’s population explosion and should be implemented in view of the demographic changes in the country.

It was on February 22, 2000, that the National Commission to Review the Working of the Constitution (NCRWC), also known as the Justice Manepalli Narayana Rao Venkatachaliah Commission, was set up by a resolution of the NDA government for suggesting possible amendments to the Constitution. It submitted its report in 2002.

Article 47 of the Constitution is one of the Directive Principles and directs the State to raise the level of nutrition, standard of living and to improve public health. It also secures justice, extension of sickness, old age, disablement and maternity benefits. The Article says: “Duty of the State to raise the level of nutrition and the standard of living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”

Article 41 also provides the right to assistance in case of sickness and disablement. It says: “The state shall within the limits of its economic capacity and development, make effective provisions for securing the right to work, to education and to public assistance in case of unemployment, old age, sickness and disablement and in other cases of undeserved want.” Their implications in relation to health are obvious.

The Article clearly says “within the limits of economics capacity”. In this regard, India is both a high population and limited resources country. In addition, Article 39 defines certain principles of policy to be followed by the State. The State shall, in particular, direct its policy towards securing

(a) that citizens, men and women equally, have the right to an adequate means of livelihood

(b) that the ownership and control of material resources of the community are so distributed as best to subserve the common good

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment

(d) that there is equal pay for equal work for both men and women

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Section e is important. A country with a high population and limited resources will invariably exploit children and make them enter an avocation. To tackle these, Article 42 gives the power to the State to make provisions for securing just and humane conditions of work and for maternity relief and for the protection of the environment.

The proposed amendment to Article 47, now called 47A, says: “The state shall promote small family norms by off­ering incentives in taxes, employment, education, etc to its people who keep their family limited to two children and shall withdraw every concession from and deprive such incentives to those not adhering to small family norm, to keep the growing population under control.”

The two-child norm is also based on the fact that the population of India has already crossed over 125 crore. The country has doubled its population in just 40 years and is expected to unseat China as the most populated country in the next couple of decades i.e. by 2050.  India has a population density of 416 people per square kilometre, which ranks 31st in the world.

Many legal attempts have been made to make the two-child norm a reality. In November 2019, a plea challenging a Delhi High Court order of September 3 dismissing a PIL seeking implementation of certain steps, including the two-child norm, was filed in the Supreme Court by BJP leader and lawyer Ashwini Kumar Upadhyay. The High Court order said it was for Parliament and the state legislatures to enact laws and not for the court.

The petition submitted that the High Court had failed to appreciate that the right to clean air, drinking water, health, peaceful sleep, shelter, livelihood and education guaranteed under Articles 21 and 21A could not be secured to all citizens without controlling the population explosion.

It also said that the High Court had failed to appreciate that after a detailed discussion, debate and feedback, Entry 20-A was inserted in List III of the 7th Schedule through the 42nd Amendment to the Constitution in 1976. This permits the centre and states to enact a law on population control and family planning. The Supreme Court bench comprising of Chief Justice SA Bobde and Justices BR Gavai and Surya Kant issued notices to the centre and others on January 10, 2020.

Earlier in 2018, the Supreme Court refused to entertain a PIL seeking the two-child norm and make it mandatory for contesting elections. Medically, the effects of a population with limited resources were evident during the devastating Spanish flu in 1918 which killed over two crore in India. This could also be seen during the current crisis in China which is battling the dreaded coronavirus epidemic.

The rapid increase in population is also putting a strain on the environment. While developed countries continue to pollute the environment and deplete resources, developing countries are under increasing pressure to compete economically and industrially. One of the largest environmental effects of population growth is global warming. Some scientists fear that this could lead to rising sea levels and extreme weather conditions.

So despite critics saying this private member’s bill is politically motivated, the fact remains that population explosion is a crisis that needs to be tackled now. Or else, it will be too late.

The writer is President, Confederation of Medical Associations of Asia and Oceania, and Heart Care Foundation of India