Act against Female Foeticide, etc. - Supreme Court issues directions

Noting the importance of related issues i.e. "increase of female foeticide, resultant imbalance of sex ratio and the indifference in the implementation of the stringent law" [Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994], in its recent decision [Voluntary Health Association of Punjab v. Union of India - Writ Petition (Civil) No. 349/2016 - decision dated 08.11.2016] the Supreme Court has passed a number of directions to the various Government agencies to work towards the cause.

The Supreme Court was categorical to opine "that a female child is entitled to enjoy equal right that a male child is allowed to have" and the "constitutional identity of a female child cannot be mortgaged to any kind of social or other concept that has developed or is thought of". Therefore, "when a female foetus is destroyed through artificial means which is legally impermissible, the dignity of life of a woman to be born is extinguished"; it "corrodes the human values" and therefore "let it be stated with certitude and without allowing any room for any kind of equivocation or ambiguity, the perception of any individual or group or organization or system treating a woman with inequity, indignity, inequality or any kind of discrimination is constitutionally impermissible." Unequivocally expressing its view-point, the Supreme Court further expressed the following;

"34. ... The historical perception has to be given a prompt burial. Female foeticide is conceived by the society that definitely includes the parents because of unethical perception of life and nonchalant attitude towards law. The society that treats man and woman with equal dignity shows the reflections of a progressive and civilized society. To think that a woman should think what a man or a society wants her to think is tantamounts to slaughtering her choice, and definitely a humiliating act. When freedom of free choice is allowed within constitutional and statutory parameters, others cannot determine the norms as that would amount to acting in derogation of law. Decrease in the sex ratio is a sign of colossal calamity and it cannot be allowed to happen. Concrete steps have to be taken to increase the same so that invited social disasters do not befall on the society. The present generation is expected to be responsible to the posterity and not to take such steps to sterilize the birth rate in violation of law. The societal perception has to be metamorphosed having respect to legal postulates."

In this background, the Supreme Court issued a number of directions in the following terms;

32. Having stated about the scheme of the Act and the purpose of the various provisions and also the Rules framed under the Act, the dropping of sex ratio still remains a social affliction and a disease.

33. Keeping in view the deliberations made from time to time and regard being had to the purpose of the Act and the far reaching impact of the problem, we think it appropriate to issue the following directions in addition to the directions issued in the earlier order:-

(a) All the States and the Union Territories in India shall maintain a centralized database of civil registration records from all registration units so that information can be made available from the website regarding the number of boys and girls being born.

(b) The information that shall be displayed on the website shall contain the birth information for each District, Municipality, Corporation or Gram Panchayat so that a visual comparison of boys and girls born can be immediately seen.

(c) The statutory authorities if not constituted as envisaged under the Act shall be constituted forthwith and the competent authorities shall take steps for the reconstitution of the statutory bodies so that they can become immediately functional after expiry of the term. That apart, they shall meet regularly so that the provisions of the Act can be implemented in reality and the effectiveness of the legislation is felt and realized in the society.

(d) The provisions contained in Sections 22 and 23 shall be strictly adhered to. Section 23(2) shall be duly complied with and it shall be reported by the authorities so that the State Medical Council takes necessary action after the intimation is given under the said provision. The Appropriate Authorities who have been appointed under Sections 17(1) and 17(2) shall be imparted periodical training to carry out the functions as required under various provisions of the Act.

(e) If there has been violation of any of the provisions of the Act or the Rules, proper action has to be taken by the authorities under the Act so that the legally inapposite acts are immediately curbed.

(f) The Courts which deal with the complaints under the Act shall be fast tracked and the concerned High Courts shall issue appropriate directions in that regard.

(g) The judicial officers who are to deal with these cases under the Act shall be periodically imparted training in the Judicial Academies or Training Institutes, as the case may be, so that they can be sensitive and develop the requisite sensitivity as projected in the objects and reasons of the Act and its various provisions and in view of the need of the society.

(h) The Director of Prosecution or, if the said post is not there, the Legal Remembrancer or the Law Secretary shall take stock of things with regard to the lodging of prosecution so that the purpose of the Act is subserved.

(i) The Courts that deal with the complaints under the Act shall deal with the matters in promptitude and submit the quarterly report to the High Courts through the concerned Sessions and District Judge.

(j) The learned Chief Justices of each of the High Courts in the country are requested to constitute a Committee of three Judges that can periodically oversee the progress of the cases.

(k) The awareness campaigns with regard to the provisions of the Act as well as the social awareness shall be undertaken as per the direction No 9.8 in the order dated March 4, 2013 passed in Voluntary Health Association of Punjab (supra).

(l) The State Legal Services Authorities of the States shall give emphasis on this campaign during the spread of legal aid and involve the para-legal volunteers.

(m) The Union of India and the States shall see to it that appropriate directions are issued to the authorities of All India Radio and Doordarshan functioning in various States to give wide publicity pertaining to the saving of the girl child and the grave dangers the society shall face because of female foeticide.

(n) All the appropriate authorities including the States and districts notified under the Act shall submit quarterly progress report to the Government of India through the State Government and maintain Form H for keeping the information of all registrations readily available as per sub- rule 6 of Rule 18A of the Rules.

(o) The States and Union Territories shall implement the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014 forthwith considering that the training provided therein is imperative for realising the objects and purpose of this Act.

(p) As the Union of India and some States framed incentive schemes for the girl child, the States that have not framed such schemes, may introduce such schemes."

Consent of wife required for valid adoption by Hindu Male: Supreme Court

Making a reference to the provisions of the Hindu Adoptions and Maintenance Act, 1956 and contrasting it with the Hindu law as prevailing before its enactment, the Supreme Court in its recent decision [Ghisalal v. Dhapubai , later reported as AIR 2011 SC 644] has declared that it is mandatory for a Hindu male to take consent of his wife, unless she is incapacitated from giving consent, before adopting a child.

The Supreme Court expressed the position of law in the following terms;

17. Section 6 reproduced above enumerates the requisites of a valid adoption. It lays down that no adoption shall be valid unless the person adopting has the capacity as also the right to take in adoption; the person giving in adoption has the capacity to do so; the person adopted is capable of being taken in adoption, and the adoption is made in compliance with the other conditions mentioned in Chapter II. Section 7 lays down that any male Hindu who is of sound mind and is not minor has the capacity to take a son or a daughter in adoption. This is subject to the rider enshrined in the proviso which lays down that if the male Hindu has a wife living then he shall not adopt except with the consent of his wife unless she is incapacitated to give the consent by reason of her having completely and finally renounced the world or her having ceased to be a Hindu or she has been declared by a court of competent jurisdiction to be of unsound mind. The explanation appended to Section 7 lays down that if a person has more than one wife living at the time of adoption, then the consent of all the wives is sine qua non for a valid adoption unless either of them suffers from any of the disabilities specified in the proviso to Section 7. Section 8 enumerates the conditions, which must be satisfied for adoption by a female Hindu. Section 12 deals with effects of adoption. It declares that from the date of the adoption, an adopted child is deemed to be a child of his/her adoptive father or mother for all purposes and his ties in the family of his or her birth shall stand severed and replaced by those created in the adoptive family. Proviso (a) to this section contains a restriction on the marriage of adopted child with a person to whom he or she could not have married if he or she had continued in the family of his or her birth. Clause (b) of the proviso saves the vested right of the adopted child in the property subject to the obligations, if any, attached to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth. Likewise, clause (c) to the proviso lays down that the adopted child shall not divest any person of any estate vested in him or her before the date of adoption. Section 16 which embodies a rule of presumption lays down that whenever any document registered under any law for the time being in force evidencing adoption and signed by the person giving and person taking the child in adoption is produced before any court, then it shall presume that the adoption has been made after complying with the provisions of the Act unless proved otherwise.

18. In Indian society, a male spouse enjoyed the position of dominance for centuries together. This was particularly so in Hindu families. Under the old Hindu Law, a Hindu male had an absolute right to adopt a male child and his wife did not have the locus to question his right or to object to the adoption. A wife could adopt a son to her husband but she could not do so during her husband’s lifetime without his express consent. After his death, she could adopt a son to him, in certain parts of India, only if he had expressly authorized her to do so. In other parts of India, she could adopt without such authority. However, in no case a wife or a widow could adopt a son to herself. An adoption by a woman married or unmarried of a son to herself was invalid and conferred no legal rights upon the adopted person. A daughter could not be adopted by a male or a female Hindu. The physical act of giving was a prime necessity of the ceremonial requirements relating to adoption. As to datta homam, that is, oblations of clarified butter to fire, the law was not finally settled and there was divergence of judicial opinion. 

19. After India became a sovereign, democratic republic, this position has undergone a sea change. The old Hindu Law has been codified to a large extent on the basis of constitutional principles of equality. The Hindu Marriage Act, 1955 codifies the law on the subject of marriage and divorce. The Hindu Succession Act, 1956 codifies the law relating to intestate succession. The Hindu Minority and Guardianship Act, 1956 codifies the law relating to minority and guardianship among Hindus. The 1956 Act is also a part of the scheme of codification of laws. Once the Hindu Succession Act was passed giving equal treatment to the sons and daughters in the matter of succession, it was only logical that the fundamental guarantee of equality of a status and equality before law is recognized in the matter of adoption. The 1956 Act now provides for adoption of boys as well as girls. By virtue of the proviso to Section 7, the consent of wife has been made a condition precedent for adoption by a male Hindu. The mandatory requirement of the wife’s consent enables her to participate in the decision making process which vitally affects the family. If the wife finds that the choice of the person to be adopted by the husband is not appropriate or is not in the interest of the family then she can veto his discretion. A female Hindu who is of a sound mind and has completed the age of eighteen years can also take a son or daughter in adoption to herself and in her own right. A female Hindu who is unmarried or a widow or a divorcee can also adopt a son to herself, in her own right, provided she has no Hindu daughter or son’s daughter living at the time of adoption [Sections 8, 11(1) and 11(2)]. However, if she is married, a female Hindu cannot adopt a son or a daughter during the lifetime of her husband unless the husband is of unsound mind or has renounced the world. By incorporating the requirement of wife’s consent in the proviso to Section 7 and by conferring independent right upon a female Hindu to adopt a child, Parliament has tried to achieve one of the facets of the goal of equality enshrined in the Preamble and reflected in Article 14 read with Article 15 of the Constitution. 

20. The term ‘consent’ used in the proviso to Section 7 and the explanation appended thereto has not been defined in the Act. Therefore, while interpreting these provisions, the Court shall have to keep in view the legal position obtaining before enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation and if that is done, it would be reasonable to say that the consent of wife envisaged in the proviso to Section 7 should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her. If the adoption by a Hindu male becomes subject matter of challenge before the court, the party supporting the adoption has to adduce evidence to prove that the same was done with the consent of his wife. This can be done either by producing document evidencing her consent in writing or by leading evidence to show that wife had actively participated in the ceremonies of adoption with an affirmative mindset to support the action of the husband to take a son or a daughter in adoption. The presence of wife as a spectator in the assembly of people who gather at the place where the ceremonies of adoption are performed cannot be treated as her consent. In other words, the Court cannot presume the consent of wife simply because she was present at the time of adoption. The wife’s silence or lack of protest on her part also cannot give rise to an inference that she had consented to the adoption. 

21. At this stage, we may notice some precedents which have bearing on the interpretation of proviso to Section 7 of the 1956 Act. In Kashibai v. Parwatibai (supra), this Court was called upon to consider whether in the absence of the consent of one of the two wives, the adoption by the husband could be treated valid. The facts of the case show that plaintiff No.1 and defendant No.1 were two widows of deceased Lachiram. Plaintiff No.2 was daughter of Lachiram from his first wife Kashibai and defendant No.2 was the daughter from his second wife Parwati. Defendant No.3, Purshottam son of Meena Bai and grandson of Lachiram. The plaintiffs filed suit for separate possession by partition of a double storey house, open plot and some agricultural lands. The defendants contested the suit. One of the pleas taken by them was that Purshottam son of Meena Bai had been adopted by deceased Lachiram vide registered deed of adoption dated 29.4.1970, who had also executed deed of Will in favour of the adopted son bequeathing the suit properties to him and thereby denying any right to the plaintiffs to claim partition. The trial Court decreed the suit for separate possession by partition by observing that the defendants have failed to prove the adoption of Purshottam by Lachiram and the execution of Will in his favour. The High Court reversed the judgment of the trial Court and held that the defendants had succeeded in proving execution of the deed of adoption and the deed of Will in accordance of law and as such the plaintiffs were not entitled to any share in the suit properties. On appeal, this Court reversed the judgment of the High Court and restored the decree passed by the trial Court. On the issue of adoption of Purshottam, this Court observed: 

“It is no doubt true that after analysing the parties’ evidence minutely the trial court took a definite view that the defendants had failed to establish that Plaintiff 1, Defendant 1 and deceased Lachiram had taken Defendant 3, Purshottam in adoption. The trial court also recorded the finding that Plaintiff 1 was not a party to the Deed of Adoption as Plaintiff 1 in her evidence has specifically stated that she did not sign the Deed of Adoption nor she consented for such adoption of Purshottam and for that reason she did not participate in any adoption proceedings. On these findings the trial court took the view that the alleged adoption being against the consent of Kashi Bai, Plaintiff 1, it was not valid by virtue of the provisions of Section 7 of the Hindu Adoptions and Maintenance Act, 1956. Section 7 of the Act provides that any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. It provides that if he has a wife living, he shall not adopt except with the consent of his wife. In the present case as seen from the evidence discussed by the trial court it is abundantly clear that Plaintiff 1 Kashi Bai the first wife of deceased Lachiram had not only declined to participate in the alleged adoption proceedings but also declined to give consent for the said adoption and, therefore, the plea of alleged adoption advanced by the defendants was clearly hit by the provisions of Section 7 and the adoption cannot be said to be a valid adoption.”

22. In Brajendra Singh v. State of M.P. (supra), the Court considered the scope of Sections 7 and 8(c) of the 1956 Act in the backdrop of the claim made by the appellant that he was validly adopted son of Mishri Bai, who was married to Padam Singh but was forced to live with her parents. In 1970, Mishri Bai claims to have adopted the appellant. After some time, she was served with a notice under Section 10 of the M.P. Ceiling on Agricultural Holdings Act, 1960 indicating that her holding of agricultural land was more than the prescribed limit. In her reply, Mishri Bai claimed that she and her adopted son were entitled to retain 54 acres land. The competent authority did not accept her claim. Thereupon, Mishri Bai filed suit for declaration that the appellant is her adopted son. During the pendency of the suit, she executed a registered Will bequeathing all her properties in favour of the appellant. The trial Court decreed the suit. The first appellate Court dismissed the appeal preferred by the State of Madhya Pradesh. The High Court allowed the second appeal and held that in the absence of the consent of Mishri Bai’s husband, adoption of the appellant cannot be treated as valid. This Court noticed that language of Sections 7 and 8 was different and observed: 

“A married woman cannot adopt at all during the subsistence of the marriage except when the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. If the husband is not under such disqualification, the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife. This is clear from Section 7 of the Act. Proviso thereof makes it clear that a male Hindu cannot adopt except with the consent of the wife, unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. It is relevant to note that in the case of a male Hindu the consent of the wife is necessary unless the other contingency exists. Though Section 8 is almost identical, the consent of the husband is not provided for. The proviso to Section 7 imposes a restriction in the right of male Hindu to take in adoption. In this respect the Act radically departs from the old law where no such bar was laid down to the exercise of the right of a male Hindu to adopt oneself, unless he dispossesses the requisite capacity. As per the proviso to Section 7 the wife’s consent must be obtained prior to adoption and cannot be subsequent to the act of adoption. The proviso lays down consent as a condition precedent to an adoption which is mandatory and adoption without wife’s consent would be void. Both proviso to Sections 7 and 8(c) refer to certain circumstances which have effect on the capacity to make an adoption.”

xxx

34. In view of the above discussion, we hold that the concurrent finding recorded by the trial Court and the lower appellate Court, which was approved by the learned Single Judge of the High Court that Gopalji had adopted Ghisalal with the consent of Dhapubai is perverse inasmuch as the same is based on unfounded assumptions and pure conjectures. We further hold that Dhapubai had succeeded in proving that the adoption of Ghisalal by Gopalji was not valid because her consent had not been obtained as per the mandate of the proviso to Section 7 of the 1956 Act. As a corollary, it is held that the suit filed by Ghisalal for grant of a decree that he is entitled to one half share in the properties of Gopalji was not maintainable and the findings recorded by the trial Court, the lower appellate Court and/or the High Court on the validity of Gift Deeds dated 29.11.1944 and 22.10.1966, Will dated 27.10.1975 executed by Gopalji in favour of Dhapubai and Sale Deed dated 19.1.1973 executed by her in favour of Sunderbai are liable to be set aside.

Have a look at the decision.

Anti-Dowry law abuse: Your opinion now matters

Taking it as our responsibility to point out in particular the laws affecting the socio-legal paradigm, this blog has constantly been the platform highlighting the interaction of such laws. One of the major ones in this regard has been the anti-dowry laws, the onset of which can be attributed to the (sad) social psyche against the brides. However of-late the law has been in limelight more on account of the abuse that it has led to in regard to false implications of the relatives under this stringent laws. The latest decision of the Supreme Court, which this blog wrote upon, also covered this aspect. 

 

Now, in the wake of a petition made before the Parliament, the Rajya Sabha has constituted a committee to consider the amendments to Section 498A of the Indian Penal Code, which consolidates the law in this respect. The Rajya Sabha has not only made public the petition before it but has also "decided to undertake consultations with a wide cross-section of the society and invites written memoranda thereon." The petitioner has written extensively on the continuous abuse of the law and also the apathy of the judicial institutions to request amendment of the laws. We would urge our erudite readers to send in their comments to the committee within the prescribed time frame on this sensitive issue.

Divorce cannot be purchased: Supreme Court

In a recent decision the Supreme Court has declared that it is not open to one of the parties to obtain divorce only on the ground of having paid sufficient sum to another unless it is consented by the other party. Miffed by the decision of the High Court allowing so, the Supreme Court in no uncertain terms made clear that under the Indian law it was not possible for a party to obtain divorce by such acts. The Court set aside the decision of the High Court which had allowed divorce upon payment by the husband of maintenance to wife and money to provide for the daughter.

Explaining its stand, the Supreme Court inter alia observed as under;

4. Against the judgment and order passed by the Family Court, the respondent preferred appeal (MATA No.59 of 2005) before the Calcutta High Court. The appeal was disposed of by a division bench of the High Court by order dated September 2, 2009. From that order it appears that the respondent filed an affidavit before the court declaring his willingness to pay a sum of Rs.10,00,000.00 (rupees ten lakhs only) as life term maintenance of the appellant and for the expenses of marriage of their daughter Kumari Ayushi Mohanty (Richi), in consideration of the dissolution of his marriage with the appellant by a decree of divorce and compounding of a criminal case instituted against him by the appellant. The respondent further stated in the affidavit that he would pay the sum of Rs.5,00,000.00 (rupees five lakhs only) within 4 months from the date of passing of the decree of divorce and the balance amount of Rs.5,00,000.00 (rupees five lakhs only) in 4 equal installments spread over a period of 2 years from the date of the passing of the decree of divorce. The High Court in its order dated September 2, 2009 simply paraphrased the statements made in the affidavit filed by the respondent and made it the order of the court. The order dated September 2, 2009 was later modified by order dated November 20, 2009 to the further advantage of the respondent. It was clarified that the payment of Rs.10,00,000.00 (rupees ten lakhs only) was not only for the lifetime maintenance of the appellant but also for the maintenance of the daughter, Kumari Ayushi Mohanty (Richi) till she got married besides the expenses that might be incurred for her marriage.

5. These two orders passed by the High Court, by which it purported to grant a decree of divorce for dissolution of the respondent’s marriage with the appellant are now before us in appeal and plainly speaking we are unable to put any meaning to the order of the High Court. The marriage between the respondent and the appellant was admittedly solemnized in accordance with the Hindu religious rites. A Hindu marriage can be dissolved only on any of the grounds plainly and clearly enumerated under section 13 of the Hindu Marriage Act. The law does not permit the purchase of a decree of divorce for consideration, with or without the consent of the other side. 

6. Leaned counsel appearing for the respondent urged us not to interfere in the matter submitting that the respondent and the appellant had lived together barely for four months. He stated that the marriage had taken place on April 29, 1994 and from August 24, 1994 they are living separately. He also tried to argue that the order of the High Court was passed with the consent of the parties and for that reason also this Court should not interfere in the matter. We are not prepared to accept the submission for a moment. First, there is nothing to indicate that the order was passed with the consent of the appellant. All that is said in the order is as under: 

“On consideration of such affidavit and the submission of the learned counsel appearing for the parties, we dispose both these appeals with the following directions” 

7. The affidavit referred to in the order is the one filed by the respondent and consideration of submission of counsel for the parties does not indicate that the appellant had given her consent for dissolution of her marriage with the respondent on payment of Rs.10,00,000.00 (rupees ten lakhs only). Secondly, and more importantly, the consent of the parties is of no relevance in the matter. No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties de hors the grounds enumerated under section 13 of the Act, unless of course the consenting parties proceed under section 13B of the Act.

8. In the light of the discussions made above, we find the order of the High Court completely unsustainable. It is set aside and the appeal against the judgment and order passed by the Family Court is restored to its file. 

Have a look at the decision.

Due compensation on death of housewife: Supreme Court

Dealing with the question as to "what should be the criteria for determination of the compensation payable to the dependents of a woman who dies in a road accident and who does not have regular source of income", the Supreme Court in a recently reported decision has declared that the award of compensation to be made upon death of a housewife should not be looked only from the view point of how much monetary earning she carried. According to the Court sufficient account was to be had over the non-monetized value of assistance and contribution made by a housewife to the family household.

Two judges of the Supreme Court writing separate but concurring decisions frowned upon the practice of Census authorities collecting data on classification of population by workers and non-workers and therein classifying "spouses who does not earn, which is normally the woman in the house and the homemaker ... as non-workers and placed in the category of beggars, prostitutes and prisoners". This classification was adopted for the purpose of determining the liability of the insurer in accident cases under Motor Vehicle Insurance law. The Court was taken aback to note that such "bias is shockingly prevalent in the work of Census" where "it appears that those who are doing household duties like cooking, cleaning of utensils, looking after children, fetching water, collecting firewood have been categorized as non-workers and equated with beggars, prostitutes and prisoners who, according to Census, are not engaged in economically productive work". 

Certain observations made by the Court, in as much as they symbolize its concern for housewives are noted as under;

Justice G.S. Singhvi

19. We may now deal with the question formulated in the opening paragraph of this judgment. In Kemp and Kemp on Quantum of Damages, (Special Edition – 1986), the authors have identified various heads under which the husband can claim compensation on the death of his wife. These include loss of the wife's contribution to the household from her earnings, the additional expenses incurred or likely to be incurred by having the household run by a house-keeper or servant, instead of the wife, the expenses incurred in buying clothes for the children instead of having them made by the wife, and similarly having his own clothes mended or stitched elsewhere than by his wife, and the loss of that element of security provided to the husband where his employment was insecure or his health was bad and where the wife could go out and work for a living.

 23. In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer’s work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.

24. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term ‘services’ is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier.

32. In our view, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother, who does not have regular income, by comparing her services with that of a housekeeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the housewife. In its wisdom, the legislature had, as early as in 1994, fixed the notional income of a non-earning person at Rs.15,000/- per annum and in case of a spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the compensation. Though, Section 163A does not, in terms apply to the cases in which claim for compensation is filed under Section 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependents of a non-earning housewife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then apply appropriate multiplier keeping in view the judgments of this Court in General Manager Kerala State Road Transport Corporation v. Susamma Thomas (Mrs.) and others (supra), U.P. S.R.T.C. v. Trilok Chandra (supra), Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another (supra) and also take guidance from the judgment in Lata Wadhwa’s case. The approach adopted by different Benches of Delhi High Court to compute the compensation by relying upon the minimum wages payable to a skilled worker does not commend our approval because it is most unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker.

Justice A.K. Ganguly

8. It is thus clear that in independent India also the process of categorizing is dominated by concepts which were prevalent in colonial India and no attempt has been made to restructure those categories with a gender sensitivity which is the hallmark in our Constitution.

9.Work is very vital to the system of gender reconstruction in societies and in this context masculine and feminine work is clearly demarcated. The question which obviously arises is whether Census definition of work reflects the underlying process of gender discrimination.

10.Women are generally engaged in home making, bringing up children and also in production of goods and services which are not sold in the market but are consumed at the household level. Thus, the work of women mostly goes unrecognized and they are never valued.

11.Therefore, in the categorization by the Census what is ignored is the well known fact that women make significant contribution at various levels including agricultural production by sowing, harvesting, transplanting and also tending cattles and by cooking and delivering the food to those persons who are on the field during the agriculture season.

Have a look at the decision.

Abuse of trust by wife a family dispute: High Court

While in the Indian context generally the disputes arise of defrauding of the wife by the husband. However in a recently reported case [Sindhu Sidharthan v. K.K. Sidharthan, AIR 2010 Ker 130] the Kerala High Court dealt with an unusual scenario wherein the allegation was that the wife obtained an unconditional power of attorney from the husband and utilized it to act against the interests of the husband. The High Court was called upon to decide whether such a dispute be resolved an ordinary civil dispute or one being husband and wife would necessarily have to be referred to a family court. 

The High Court holding that the law relating to matrimonial disputes, for which the jurisdiction vested exclusively with Family Courts, was wide enough to cover a dispute of such nature and thus had to be decided by a Family Court. The Division Bench of the High Court, disposing off the contentions, inter alia observed as under;

6. We shall first of all refer to explanation (c) to Section 7(1) of the Family Courts Act. It reads as follows: 

Section 7: Jurisdiction:-(1) Subject to the other provisions of this Act, a Family Court shall-

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

(b) ..............................

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

a) .................................

b) ....................................

c) A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them."

7. This is a proceedings between parties to marriage and the bone of contention is the property of one of them. We are in complete agreement with the learned counsel for the respondent that going by the plain language employed by the legislature, this dispute between the spouses regarding property of the husband (claimed by the wife under the document dated 08.02.2007 executed by her in favour of herself as the power of attorney holder of the husband after alleged cancellation/revocation of the instrument of power of attorney) would squarely come within clause (c).

8. It will be quite apposite in this context to refer to the decision of the Supreme Court in Abdul Jaleel v. Sahida [2003 (2) KLT 403(SC)] as to how the law relating to jurisdiction of a Court, created specially for resolution of disputes of a specified nature should be construed. In para.14, it is clearly stated that "it is now a well settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally".

9. Even without pressing into service this cannon relating to liberal interpretation, a plain understanding of the language in the light of the semantics employed in explanation (c) clearly brings the case within the sweep of the said clause. 

10. The learned counsel for the appellant submits that not mere language but the legislative objects, reasons and intention will have to be understood. We have gone through the statement of objects and reasons of Act 66 of the Family Courts Act, 1984. We do not think it necessary to extract the same. It is true that the purpose, objects and reasons is to constitute a court for settlement of family disputes. But as to what family disputes are one has to go by the language of Sec.7. Subjective concepts of what a family dispute is are not to be imported and in Sec.7 where jurisdiction of a Family Court is defined and powers conferred, it is clearly revealed as to what sort of disputes are to be comprehended by the Family Courts true to the objects and reasons which prompted the legislature to enact this piece of legislation.

11. The learned counsel for the appellant heavily relies on the decision of a Division Bench of this Court in Abdul Jaleel v. Sahida [1997(1) KLT 734]. The counsel contends that a reading of para-7 of the decision in Abdul Jaleel v. Sahida [1997(1) KLT 734] must convey to the court that the instant one cannot be reckoned as a family dispute as to clothe the Family Courts with jurisdiction to deal with the same. Since heavy reliance is placed on para-7, we extract the same in extenso below: 

"7. Section 7 of the Family Court Act gives the various types of proceedings over which the Family Court has jurisdiction to try. 

S.7(1) ) is one such proceedings which reads as follows:

"A suit or proceeding between the parties to a marriage with respect to the property of the parties or either of them". 

We are unable to accept the contention of the appellant that the parties to a marriage referred to therein shall only confine to the parties to the subsisting marriage. The object of the Family Courts Act is to settle the family disputes. The disputes relating to family may be there even after the dissolution of the marriage. In the instant case, the allegation of the respondent is that the property for which she seeks declaration and partition was purchased by the appellant using the money belonged to her. Such a dispute arose between the parties consequent on the dissolution of the marriage. This dispute between them is closely connected with family dispute. If the declaration or partition was sought in respect of an item of property independently acquired by one of the parties after the dissolution of the marriage, certainly the Family Court may not have the jurisdiction. If the dispute relating to the properties which were jointly acquired at the time when they were husband and wife, any dispute relating to such properties could be decided only a forum like the Family Court. The expression `parties to a marriage' used under S.7(1)c) of the Family Courts Act is to be construed having due regard to the Objects and Reasons of the Family Courts Act. 

12. The learned counsel relies on the decision in Abdul Jaleel v. Shahida [2003 (2) KLT 403 (SC)] also to drive home his contention that the dispute in order to be a cognizable by the Family Court must be a family dispute. Reliance is placed on paras-10 to 13 of the said decision. We have been taken through these passages in detail. We do not think it necessary to extract the said passages.

13. We note that both these decisions were cases where the question that arose for consideration was the play of the expression "between the parties to a marriage". The question that the courts were called upon to decide was whether the expression "parties to the marriage" would include parties to a dissolved marriage or would apply only to a subsisting marriage. It is interpreted that Clause (c) would apply not merely to disputes between the parties to a subsisting marriage; but also to dispute between parties to a dissolved marriage - a marriage which does not subsist.

14. The learned counsel contends that though the question that arose in both those cases were not exactly identical, certain observations in the decision in Abdul Jaleel v. Sahida [1997(1) KLT 734] must suggest to this court that even disputes between the parties to a marriage regarding properties owned by one of them would not fall within the sweep of Explanation (c) if the properties were acquired without any reference to their marital status. The counsel particularly relies on the observations in para-7 extracted and emphasized above and contends that the mere fact that the parties to a marriage happen to be spouses, is not crucially relevant. The question is whether the dispute in its core is a family dispute. The counsel places heavy reliance on the following statement of law in paragraph 7 of Abdul Jaleel v. Sahida [1997(1) KLT 734].

"It has been observed in the book `Craies on Statute Law" 7th Edition at Page 102 that: `a court of justice will take into consideration the spirit and meaning of the act apart from the words; in other words, there is still, as Jessel M.R. said, in Re Bethlem Hospital, such a thing as construing an Act according to its intent, though not according to its words'."

In short the counsel argues that even a dispute which going by the mere language may fall within explanation (c) to Sec.7(1) may not be cognisable by the Family Court if the same is not a family dispute, as commonly understood. 

15. The question is whether the instant dispute which falls within the language of explanation (c) goes out of the sweep of the same for the alleged reason that it is not a family dispute. For this purpose we have scanned through the pleadings. 

16. A careful reading of the plaint clearly shows that the spouses while the matrimony was in subsistence had initially great trust and faith in each other. The wife who was more educated, competent and qualified was assisting the husband in the management of his properties. It is to facilitate such management by her that the husband placing absolute matrimonial trust and implicit faith executed the Power-of-Attorney document. It is the alleged abuse of the position and status as a spouse (on whom complete matrimonial trust and faith was placed and in whose favour the Power-of-Attorney document was executed to facilitate her to act on behalf of the other spouse) which is the foundation of the cause of action in this case. Even accepting any standards we find it impossible to construe that the dispute in the instant case is unrelated to the marital status of the parties or that it has to be reckoned as a non-family dispute.

17. To summarise, the dispute is between the spouses. It relates to an item of property of the husband. The dispute is whether the document executed by the wife in her capacity as a Power-of-Attorney Holder after the revocation of the instrument of Power-of-Attorney is valid or not. But the underlying substratum of the case is that the matrimonial trust and faith reposed had been abused. We are unable to accept the argument that the dispute is not a family dispute or that for that alleged reason it would go out of the sweep of Explanation (c) to Sec.7(1).

18. The observation in para.7 of the Abdul Jaleel v. Sahida [1997(1) KLT 734] that " If the declaration or partition was sought in respect of an item of property independently acquired by one of the parties after the dissolution of the marriage, certainly the Family Court may not have the jurisdiction" cannot be understood artificially or out of context. While interpretationally expanding the expression "parties to a marriage" to include "parties to a marriage which was not subsisting on the date of the suit" caution was administered that such interpretational expansion cannot cover all subsequent disputes between such parties independent of and unrelated to their marital status as spouses. That observation can have no effect/impact on disputes between spouses to a subsisting marriage. A dispute between parties to a subsisting marriage which answers clause (c) of explanation to Sec.7(1) cannot ever go out of the sweep of the explanation, or be out of bounds for the Family Court on the strength of that observation.

Have a look at the decision.

No maintenance by non-working husband: High Court

In a judgment which can bring relief to a number of unemployed husbands from the liability to pay maintenance to their wives, the Delhi High Court recently has declared that the law relating to maintenance to be paid to wives under Section 125 of the Code of Criminal Procedure does not apply in a situation where the husband is unemployed and isn't himself earning. Deciding in Sanjay Bhardwaj v. State, the Justice Shiv Narayan Dhingra reversed the decision of the lower court fixing maintenance in such circumstances.

The High Court inter alia observed;

4. ... Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act, Section 125 Cr.P.C - a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. If the husband was BSc. and Masters in Marketing Management from Pondicherry University, the wife was MA (English) & MBA. If the husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India. Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized, he was not permitted to leave country, (the bail was given with a condition that he shall keep visiting Investigating Officer as and when called) is contrary to law and not warranted under provisions of Domestic Violence Act.

5. We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree. Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed. As far as dependency on parents is concerned, I consider that once a person is grown up, educated he cannot be asked to beg and borrow from the parents and maintain wife. The parents had done their duty of educating them and now they cannot be burdened to maintain husband and wife as both are grown up and must take care of themselves. 

6. It must be remembered that there is no legal presumption that behind every failed marriage there is either dowry demand or domestic violence. Marriages do fail for various other reasons. The difficulty is that real causes of failure of marriage are rarely admitted in Courts. Truth and honesty is becoming a rare commodity, in marriages and in averments made before the Courts.

Have a look at the decision.

Maintenance to Muslim wife: The law revisited

In a recent decision, the Supreme Court has revisited and rejuvenated the law of maintenance relating to divorced Muslim wives. The Supreme Court was considering the propriety of the decision given by the Family Court and confirmed by the High Court where maintenance was allowed to the divorced wife only upto the period of Iddat. The Husband sought to justify the decision of these courts arguing that in terms of the 'Muslim Women (Protection of Rights on Divorce) Act, 1986', the maintenance was to be restricted till the period of Iddat only. However from the side of the wife it was argued before the Supreme Court that the lower courts failed to take notice of the fact that in terms of Section 125 of the Code of Criminal Procedure the divorced wife was entitled to maintenance till the time she remarried and that Section 125 being a specific and beneficial legislation would prevail.


In these circumstances, the Supreme Court called upon itself to decide as under. "The basic and foremost question that arises for consideration is whether a Muslim divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 of the Cr.P.C. and, if yes, then through which forum." The Court took note of the provisions of the 1986 Act, Code of Criminal Procedure and the Family Courts Act, 1984 to find favour with the arguments raised on behalf of the divorced wife. It observed,

24. In our opinion, the point stands settled by judgment of this Court reported in (2001) 7 SCC 740 titled Danial Latifi & Anr. Vs. Union of India pronounced by a Constitution Bench of this Court. Paras 30, 31 and 32 thereof fully establish the said right of the appellant. The said paragraphs are reproduced hereinunder :

"30. A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right, loses its significance. The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners.

31. Even under the Act, the parties agreed that the provisions of Section 125 CrPC would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125 CrPC would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional.

32. As on the date the Act came into force the law applicable to Muslim divorced women is as declared by this Court in Shah Bano's case [(1985) 2 SCC 556 Mohd. Ahmed Khan vs. Shah Bano Begum & Ors.]. In this case to find out the personal law of Muslims with regard to divorced women's rights, the starting point should be Shah Bano's case and not the original texts or any other material - all the more so when varying versions as to the authenticity of the source are shown to exist. Hence, we have refrained from referring to them in detail. That declaration was made after considering the Holy Quran, and other commentaries or other texts. When a Constitution Bench of this Court analysed Suras 241-242 of Chapter II of the Holy Quran and other relevant textual material, we do not think, it is open for us to re-examine that position and delve into a research to reach another conclusion. We respectfully abide by what has been stated therein. All that needs to be considered is whether in the Act specific deviation has been made from the personal laws as declared by this Court in Shah Bano's case without mutilating its underlying ratio. We have carefully analysed the same and come to the conclusion that the Act actually and in reality codifies what was stated in Shah Bano's case. The learned Solicitor General contended that what has been stated in the Objects and Reasons in Bill leading to the Act is a fact and that we should presume to be correct. We have analysed the facts and the law in Shah Bano's case and proceeded to find out the impact of the same on the Act. If the language of the Act is as we have stated, the mere fact that the Legislature took note of certain facts in enacting the law will not be of much materiality."

25. Judgment of this Court reported in (2007) 6 SCC 785 titled Iqbal Bano Vs. State of U.P.& Anr. whereby the provisions contained in Section 125 of the Cr.P.C. have been aptly considered and the relevant portion of the order passed in Iqbal Bano's case reads as under:

"10. Proceedings under Section 125 Cr.P.C. are civil in nature. Even if the Court noticed that there was a divorced woman in the case in question, it was open to it to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under Section 125 Cr.P.C. and claims made under the Act are tried by the same court. In Vijay Kumar Prasad Vs State of Bihar (2004) 5 SCC 196 it was held that proceedings under Section 125 Cr.P.C. are civil in nature. It was noted as follows: (SCC p.200, Para 14). 14. The basic distinction between Section 488 of the old Code and Section 126 of the Code is that Section 126 has essentially enlarged the venue of proceedings for maintenance so as to move the place where the wife may be residing on the date of application. The change was thought necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with their relatives far away from the place where the husband and wife last resided together. As noted by this Court in several cases, proceedings under Section 125 of the Code are of civil nature. Unlike clauses (b) and (c) of Section 126 (1) an application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives."

26. In the light of the findings already recorded in earlier paras, it is not necessary for us to go into the merits. The point stands well settled which we would like to reiterate.

27. The appellant's petition under Section 125 of the Cr.P.C. would be maintainable before the Family Court as long as appellant does not remarry. The amount of maintenance to be awarded under Section 125 of the Cr.P.C. cannot be restricted for the iddat period only.

28. Learned Single Judge appeared to be little confused with regard to different provisions of Muslim Act, Family Act and Cr.P.C. and thus was wholly unjustified in rejecting the appellant's Revision. 

29. Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi (supra) and Iqbal Bano (supra) would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women. 

Being of this view, the Supreme Court declared the law as under;

30. In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry. 

Have a look at the decision.

Gender Equality and 204th Report of Law Commission of India

Gender Equality and Indian laws are a diagonally opposite paradigm. Right from the archaic code of criminal laws (namely the Indian Penal Code of 1860) to the newly enacted Domestic Violence Act, all of these have been sharply criticized as suffering from enormously high gender bias, all inclined towards bestowing rights on the fairer sex at the expanse of the male fraternity. I do not wish to speak much on how much the laws in India are inclined (if not biased) towards the egalitarian (if not superior) positioning of females, for it has already been spoken a lot and commented upon from all quarters of Indian society both from amidst the intellectual fraternity as well as the common folk.

Instead my task today is to bring forth the highly daunting task that the Law Commission of India has proposed for it and come out with a report thereon, dealing with the issues of Gender Bias for the first time from a legal-policy-perspective basis and come out with a strong case in favour of gender equal laws. Yes, I refer to the 204th Report of the Law Commission entitled "Proposal to amend the Hindu Succession Act, 1955", issued in this month itself. In the opening paragraph, the Commission itself acknowledges "inspite of the constitutional mandate for gender equality, gender bias and discrimination continue to be prevalent in the Indian society in one form or another. Though there are distinct signs of gradual reduction of inequalities on the basis of sex, yet these could not be eliminated altogether. There is no denying the fact that the fight against gender inequalities has to be pursued with sustained rigours on a long term basis until the ultimate goal of gender justice is attained." Really high speaking words but yet the action on them is to be awaited.

On these lines, the Law Commission has on its own taken a stock of the discrepancies in the earlier recommendation for reform (referring to the 174th Report on the basis of which the Hindu Succession Act was amended in 2005). Acknowledging the mistakes, the Commission has come out with further proposals for amendment of the Act such that the males can also get a fair share in the distribution of the property in cases of intestate succession. While the recommendations are technical and may not be understood by the reader lacking a background in the succession rules, nonetheless on a broader perspective, it would be clear that the Commission seeks to set rules of fair play and gender equality with a pragmatic dimension in the existing rules.

I am not going to comment upon the individual recommendations made for that would require myself to brush-up with the minutes. Nonetheless for a curious reader I do have something to offer. This is something I worked on during law school; an analysis of the the rules of intestate succession in Hindus, the paper on which I have posted on SSRN. [click here for the SSRN article on intestate succession rules] There I have sought to enumerate the basic provisions and how they work, something which will enable the reader to understand and place the 204th Report of the Law Commission in proper perspective. [click here for the full text of the 204th Report]