2015 (10) TMI 2761 - SC - Indian Laws

Supreme Court ruling on Hindu Succession Act 2005 applicability and gender discrimination

The Supreme Court held that the Hindu Succession (Amendment) Act, 2005 does not have retrospective effect, applying only prospectively from its ... Retrospectivity of legislation - Hindu Succession (Amendment) Act, 2005 - coparcenary rights - statutory notional partition - proviso and explanation-construction - gender discrimination - Muslim women's rights - public interest litigation-registrationRetrospectivity of legislation - Hindu Succession (Amendment) Act, 2005 - coparcenary rights - statutory notional partition - proviso and explanation-construction - Whether the 2005 Amendment to Section 6 of the Hindu Succession Act applies retrospectively or is prospective and the extent to which partitions or dispositions prior to 20th December, 2004 are affected. - HELD THAT: - The court examined the text and context of Section 6 as amended and held that the amendment confers coparcenary status on a 'daughter of a coparcener' 'on and from the commencement' of the Amendment Act and that its operative paragraphs apply where the coparcener in question dies after the commencement. An amendment of a substantive right is prospective unless express or necessary intendment indicates retrospectivity. There is no express retrospective provision nor necessary intendment in the 2005 Amendment. The proviso and the Explanation are to be read harmoniously with the main provision and operate to protect dispositions, alienations or partitions effected before 20th December, 2004; they do not operate to make the main provision retrospective or to reopen valid partitions effected prior to that date. Statutory notional partition by operation of law at the time of succession is not brought within the Explanation or proviso so as to render the Amendment retrospective. Consequentially, the rights under the Amendment apply to daughters and their fathers who were living on 9th September, 2005, irrespective of the daughter's date of birth, but partitions or dispositions validly effected before 20th December, 2004 remain unaffected; partitions effected after that date are governed by the Explanation. [Paras 17, 18, 22, 23, 24]The Amendment is prospective; rights under Section 6 as amended apply to daughters of coparceners living on 9th September, 2005, but dispositions or partitions validly effected before 20th December, 2004 remain unaffected. Civil Appeal No.7217 of 2013 is allowed, the High Court order is set aside and the matter is remanded to the High Court for fresh decision in accordance with law.Gender discrimination - Muslim women's rights - public interest litigation-registration - Whether the Court should entertain broader consideration of alleged gender discrimination against Muslim women and the procedure to initiate such consideration. - HELD THAT: - The Court observed that issues concerning discrimination against Muslim women touch fundamental rights under Articles 14, 15 and 21 and international instruments and noted earlier references and decisions illustrating the constitutional dimension. Though not decided on merits in these proceedings, the Court directed that the question merits separate adjudication and ordered that a Public Interest Litigation be registered to consider the matter. The Court directed issuance of notice to the Attorney General and the National Legal Services Authority and permitted counsel in the present proceedings to assist if they volunteer. [Paras 31, 32]A separate PIL be registered to examine the issue of gender discrimination concerning Muslim women; notice to the Attorney General and National Legal Services Authority to be issued returnable as directed and liberty granted to existing counsels to assist the Court if they wish.Final Conclusion: The Civil Appeal concerning the retrospective operation of the Hindu Succession (Amendment) Act, 2005 is allowed; the High Court order is set aside and the matter remanded to the High Court for fresh decision in accordance with law. Separately, the Court directed registration of a PIL to examine alleged gender discrimination against Muslim women and ordered service of notice to the Attorney General and the National Legal Services Authority. Issues Involved:1. Whether the Hindu Succession (Amendment) Act, 2005 has retrospective effect.2. The applicability of the amendment to living daughters of living coparceners as on 9th September, 2005.3. Gender discrimination against Muslim women.Detailed Analysis:1. Retrospective Effect of the Hindu Succession (Amendment) Act, 2005:- The primary issue raised was whether the Hindu Succession (Amendment) Act, 2005 ('the Amendment Act') would have retrospective effect. The impugned judgment upheld the plea of retrospectivity in favor of the respondents, which aggrieved the appellants.- It was argued that the amendment should be read as retrospective due to its nature as a piece of social legislation aimed at removing discrimination against women. However, the court held that even a social legislation cannot be given retrospective effect unless expressly provided for or intended by the legislature.- The text of the amendment clearly provides that the right conferred on a 'daughter of a coparcener' is 'on and from the commencement of Hindu Succession (Amendment) Act, 2005'. Section 6(3) talks of death after the amendment for its applicability. There is no scope for a different interpretation than the one suggested by the text of the amendment.- The court concluded that the amendment is prospective and not retrospective, as there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect.2. Applicability to Living Daughters of Living Coparceners as on 9th September, 2005:- The court held that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005, irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004, as per law applicable prior to the said date, will remain unaffected.- Any transaction of partition effected thereafter will be governed by the Explanation. The court emphasized that the amendment did not intend to affect the settled principles governing such transactions for the period prior to 20th December, 2004.3. Gender Discrimination Against Muslim Women:- Although not directly involved in this appeal, the issue of gender discrimination against Muslim women was raised by some learned counsel. It was pointed out that despite constitutional guarantees, Muslim women are subjected to discrimination, including arbitrary divorce and second marriage by husbands during the currency of the first marriage.- The court noted that the issue relates to fundamental rights of women under Articles 14, 15, and 21 and international conventions and covenants. The court referred to previous decisions, including the Constitution Bench decision in Danial Latifi vs. Union of India, which held that Article 21 includes the right to live with dignity.- The court observed that the matter needs consideration as it involves fundamental rights, and suggested that the issue be separately registered as a Public Interest Litigation (PIL).Conclusion:- The Supreme Court allowed Civil Appeal No. 7217 of 2013, setting aside the High Court's order and remanding the matter for a fresh decision in accordance with law. Other related matters were scheduled for separate consideration.- The court directed the registration of a PIL to address the issue of gender discrimination against Muslim women and issued notice to the learned Attorney General and National Legal Services Authority, New Delhi, returnable on 23rd November, 2015.