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PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 200...

·        Despite many laws violence against women is on the high at all domains – private and public. ·         Violence against women at different levels have contributed to women’s social exclusion and poverty. ·        According to NCRB report one crime is committed to woman in every three minutes. Crime Clock - India1 Rape case – 29 mins.1 Molestation case – 15 mins.1 Sexual harassment case – 53 mins.1 Dowry death – 77 mins.1 Cruelty case – 9 mins  NEED OF THE ACT·        THE PROTECTION OF DOMESTICVIOLENCE ACT” was introduced and came into force in 2005. It guarantees article14,15, and 21 of the Indian Constitution·        This law recognizes the right of women to live in violence free home and provided legal remedies if this right is violated·        Legal remedies pertain to civil relief such as injunction, compensation and monetary relief.·        There can be no arrest made on complaint filed under this law·        This is a civil law aimed at providing immediate support to women facing domestic violence.·        It is different from criminal law, which is directed at providing punishment to perpetrators of violence (those who commit violence) through imprisonment or fines·        This law also is a victim oriented .·        This is a special law focused on victims and giving them relief from domestic violence. You can file an application under this law. This does not stop you from seeking other civil or criminal action against the offenders. Basic Features of the Domestic Violence Act, 2005 ·        Apart from the victim herself, the complaint regarding an act or act of domestic violence can also be lodged by ‘any person who has a reason to believe that’ such an act was committed or is being committed. This means that neighbors, social workers, relatives can also take initiative.·        The magistrate has been given powers to permit the aggrieved women to stay in her place of adobe and she can not be evicted by her male relatives in the retaliation. This is not all; the aggrieved woman can even be allotted a part of the house for personal use.·        The respondent can be prohibited from dispossessing the aggrieved person or in any other manner disturbing her possessions, entering the aggrieved person’s place of work, if the aggrieved person is a child, the school. Also magistrate can bar the respondent to communicate with aggrieved person by “personal, oral, written, electronic or telephonic contact.”·        The magistrate can impose monthly payments of maintenance. The respondent can also be ordered to meet the expenses incurred and losses suffered by the aggrieved person and any child of aggrieved person as a result of domestic violence. It can also cover loss of earnings, medical expenses, loss or damage to property.·        Under Sec 22 magistrate can make the respondent pay compensation and damages for injuries including mental torture and emotional distress caused by act(s) of domestic violence.·        Penalty up to one-year and/or a fine up to Rs. 20,000/- can be imposed under under the act. The offence is also considered cognizable and non-bailable while Sec 32 (2) goes even says that ‘under the sole testimony of the aggrieved person, the court may conclude that an offence has been committed by the accused”.·        The act ensures speedy justice as the court has to start proceedings and have the first hearing within 3 days of the complaint being filed in the court and every case must be disposed off within a period of sixty days of the first hearing.·        The act makes provisions for state to provide for protection officers and status of ‘service providers’ and ‘medical facility’.·        Chapter 4 Sec 16 allows the magistrate to hold proceedings in camera “if either party to the proceedings so desires”.What is domestic violence?·        Any form of abuse causing harm or injury to the physical and/or mental health of the women or compromising her life and safety.·        Any harassment for dowry or to meet any other un lawful demand·        Threat to cause injury or harm.Sec-3 of the act define domestic violence. Domestic violence under this law can include different kinds of abuse and violence.Form of abuse recognize under law·        Physical abuse (beating, kicking etc)·        Sexual abuse (force sexual intercourse, force the women to look the pornography etc)·        Verbal or emotional abuse (insult for not being a male child, threat to commit suicide etc)·        Economical abuse (not providing money for maintain herself etc)·        Any kind of abusive behavior by your husband or male partner or their relatives (includes male and female relatives). It need not be physical abuse. It could also be verbal, emotional, sexual or economic abuseWHO IS THE VICTIM ? (AGGRIEVED PERSON)Every woman (aggrieved person) or a child who is, or has been, in a domestic relationship with the perpetrator (respondent) of the domestic violence can take help of the PWDV ACT, 2005.  Note-·        domestic relationship through marriage, blood relationship or other relation like adoption, relationship in nature of marriage etc.·        This law aims to protect women who are living in the same house with people who are related through:·        Blood relationships:·        Marriage·        Adoption·        Relationships in the nature of marriage:·        Share household is a house hold where the victim lives or at any stage of time have lived with domestic relationship.What can a women get by filing a complain under the law ?Under the PWDV Act, 2005 an aggrieved person  get the following reliefs/orders·        Protection order u/s 18·        Residence order u/s 19·        Monetary relief u/s 20·        Custody order u/s-21·        Compensation order u/s-22·        Ex-parte or interim order u/s-23 Protection order·        This can also termed as stop violence order·        Through this order the court can direct the other party to immediately stop the act of violence.·         In this order, the Magistrate can do the following:-preventing the offender from entering the women place of employment and causing harassment.- can order the offender not to harm anyone who depends on the victim, her relatives and anyone else who has helped her.- order the offender not to commit or help commit domestic violence.- can order the offender not to contact the victim personally or through e-mail, telephone or similar means        -can order the offender not to do the following without her permission:sell or give away their thingsuse their joint bank account, oruse their joint bank locker.Even before making the final decision in a domestic violence case, the Magistrate can pass a 'protection order' if she is somewhat convinced that such violence has taken place or can take place in the near future RESIDENCE ORDEROne of the orders that the Magistrate can pass in a domestic violence case is a 'residence order'. The residence order can include the following:She can order the offender not to throw the victim out of their shared home.She can order the offender to leave the shared home. Please note that she cannot order any female relatives of the offender to leave the house.She can order the offender and his relatives not enter the victim's portion of the shared home.She can order the offender not to sell, lease or mortgage the shared home.She can order the offender not to leave the shared home without her permission.She can order the offender to pay for or buy another house for the victim if need be.In order to protect the victim and her children, the Magistrate can impose additional conditions in such residence orders.Sometimes the Magistrate can order the offender to sign a bond with the court to ensure that he does not commit acts of domestic violence. The Magistrate can choose to require the offender to get sureties (other people who will take up responsibility for his behavior).The Magistrate can ask the local police to help the victim implement a residence order.The Magistrate can ask the local police to help the victim implement a residence order.If the victim does not have money, the Magistrate can order the offender to pay the rent and other payments in any type of residence order.The Magistrate can ask the local police to help the victim implement a protection order.The Magistrate can order the offender to give back her stridhan or other valuable security to the victim·        Monetary relief u/s 20To compensate the victim and her children for the injuries and losses they might have suffered as a result of domestic violence, the Magistrate can order the offender to pay for the following:lost income (for example, if the victim did not receive salary because she was in hospital for a month when her husband hit her);hospital bills and money for medicines;damaged property or property which the offender has taken away from the victim;child maintenance (note that the victim can claim maintenance under this Act even if she has filed a separate maintenance application under criminal law).The Magistrate should fix the amount according to the standard of living that the victim is used to.The Magistrate can order monthly or lump-sum maintenance.Copies of such orders have to be sent to the parties in the case and to local police station.The offender has to pay money to the victim within the specific time period according to the Magistrate's order.Say the offender does not make the payments, the Magistrate can direct the person who employs the offender or who owes money to the offender to pay the court directly. This will be adjusted against the money that has to be paid by the offender.Custody order u/s-21Under this law, the Magistrate has the power to pass a temporary custody order at any stage during the case. She can grant custody of the children to the victim or any person filing the case for her. She can also allow the offender to visit the children. She can choose to refuse such visits if a visit by the offender can hurt the children.Compensation order u/s-22The Magistrate can pass another type of order for payment of money - compensatory orders. The Magistrate passes such orders to compensate the victim for mental torture and emotional distress.Ex-parte or interim order u/s-23Given the nature of domestic violence cases, the law allows the Magistrate to pass temporary orders (before the final order is passed) or orders in the absence of the offender (if there is an immediate threat of violence). Procedure for claiming relief /orderAGGREVIED PERSON                                   SERVICE PROVIDER  PROTECTION OFFICER                             POLICE                                     MAGISTRATE        You can go to the police station, a Protection Officer, a Service Provider or a Magistrate.        Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer.   PROCEDURE FOR CLAIMING RELIEFINFORMATION (SEC-4) COMPLAINT (SEC-5 & RULE 5 FORM 1)APPLICATION (SEC-12)NOTICE SERVEDPARTY APPEAR BEFORE COURTINTERIM ORDER PASSED                             COUNSELING (SEC-15)EVIDENCE AND ARGUMENT                                                 FINL ORDER PASSEDIF THE ORDER PASSED BY THE                          APPLICATION FOR                                APPEALCOURT IS VIOLATED                                          ALTERATION & DISCHARGE                 WITHIN 30 DAYS                                                                                                                     BEFORE SESSION                                                                                                          JUDGEDuties of police officers, service providers and Magistrate (SEC-5)The law imposes certain duties on the main authorities responsible for enforcing this law. When a police officer, Protection Officer, Service Provider or Magistrate comes to know that someone is suffering from domestic violence, they must inform the victim of the following rights:The victim can apply for any of the reliefs recognized under this law i.e. a protection order, monetary relief, custody order, residence order or a compensation order.The victim can use the services of certain official Service Providers.The victim can approach a Protection Officer and ask them for help.The victim can ask for free legal aid.The victim can also file a criminal complaint under the general law on crimes (the Indian Penal Code, 1860). Please note that filing a criminal complaint can put the offenders in jail for up to three years. The victim must have suffered a graver degree of abuse (i.e. cruelty) to be able to file a complaint Application to Magistrate (SEC-12)(What is the procedure for domestic violence cases in court? What kind of orders can a victim expect from the Magistrate? ) If you as a victim of domestic violence want a more permanent solution to your problems, you can go to the court. The type of judges who are responsible for this Act are called 'Magistrates'.The victim need not make the application herself. The Protection Officer or any other person on her behalf can make the application.One of the things the Magistrate has to keep in mind is the complaint which was first recorded by the Protection Officer or the Service Provider.In addition to filing a domestic violence case under this Act, the victim can also go to court and file a normal civil case.When the victim has also filed a normal civil case, the court will deduct the amount paid under the domestic violence case when deciding how much money she gets.The Magistrate has to start the case within 3 days from the date of the application.Once the Magistrate has started the case, she has to try her best to finish the case within 60 days. Protection officerWho is a Protection Officer?A Protection Officer is the first point of contact for a victim. The Protection Officer can help start proceedings before the Magistrate and help with providing a safe shelter or medical help. Sec-2 (n) says “Protection Officer” means an officer appointed by the State Government under sub-section (1) of section 8;According to sec -30 of the act - The Protection Officers shall be deemed to be public servantsAppointment of Protection Officers Section-8 relates to the the appointment of Protection Officers and their qualifications.The State Government shall, by notification, appoint such number of Protection Officers in each district as it may consider necessary and shall also notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under this Act. Please note that there is a duty on every State Government to appoint as many women as possible for the Protection Officer posts.What is the role of a 'protection officer'? What do they do?Sec-9 deals with Duties and functions of Protection Officers.The Protection Officer has a general duty to help the Magistrate with her various duties under the Act.·        The Protection Officer has a general duty to help the Magistrate with her various duties under the Act·        The Protection Officer will first record her complaint in a particular format. This is known as the 'domestic incident report'.·         The Protection Officer will then send a copy of this complaint to the local police station and Service Providers.·         If aggrieved person wants to approach the courts which can pass orders under this law, the Protection Officer has to make an application on that behalf and present it to the Magistrate.·         the Protection Officer has to ensure that she has access to a lawyer who will take up her case for free.·        The Protection Officer has to maintain lists of all the NGOs in the area which provide legal help or counsel victims. also has to maintain lists of local shelter homes and hospitals which are designated by the government to provide help in such situations.·        The Protection Officer has to find a safe shelter home for her. When she has found a safe shelter for her, PO needs to report this to the local police station and Magistrate.·        The Protection Officer has to make sure that a doctor helps victim and has to send a copy of the medical report to the local police station and Magistrate.The main duties of the Protection Officer are provided in this law. However, the government has imposed additional duties on the Protection Officer under rules.The Protection Officer is answerable to the local Magistrate and the governmentAccording to sec-33 The Protection Officer can be punished for not performing his duties as per the orders of the Magistrate.  can be:sent to jail for up to one year;ordered to pay fine of up to Rs. 20,000;sent to jail and ordered to pay fine.FAQ 1) Who is aggrieved person under the said DV Act?S.2 (a) of the Act defines aggrieved person means any women who is or has been on a domestic relationship with the respondent and who alleges to have been subjected to domestic violence by the respondent.2) Are Minors/minor male entitled for reliefs under this Act?Yes, as the term”child”is defined under the law, minors will also be within the ambit of the definition of domestic relationship. Section 2(b)DV Act defines Child.The mother can make an application on behalf of her minor child(whether male or female).In cases where the mother makes an application to the court for herself , the children can also be added as co-applicants for a relief under the DV Act. The Court can also, whenever appropriate, appoint a guardian or next friend to represent the child.3)The female who is in” live-in relationship” or “ relationships in the nature of marriage “is entitled for relief under the Said Act?Yes, Sec 2(f) of the DV Act defines the expression” Domestic Relationship” Relationships in the nature of marriage includes those relationships where there is no marriage between the parties ,in the sense of solemnization of a marriage under any law. Yet the parties represent to the world that they are a couple and there is stability and continuity in the relationhips. Such relationships also known as “live-in relationship”Different court judgments have discussed on different disputes pertaining to live-in relationships. Live-in relationships are now considered at par with marriage under a new Indian law pertaining to domestic violence. The provisions of the Domestic Violence Act, 2005 are now extended to those who are in live-in relationships as well. The amendments intend to protect the victims of domestic abuse in live-in relationships. Section 2 (g) of the aforementioned Act provides that a relationship between two individuals who live together or have lived together in the past is considered as a domestic relationship. A woman who is in a live-in relationship can seek legal relief against her partner in case of abuse and harassment.4) What are the features of the live-in relationships?In Velusamy v/s Patchaiammal (2010) The Supreme Court stated that a ‘relationship in the nature of marriage’ is akin to a common law marriage. For the purposes of claiming benefits under the domestic violence law, the claimant must satisfy four requirements i.e. (a) the couple must hold themselves out to society as being akin to spouses; (b) they must be of legal age to marry; (c) they must be otherwise qualified to enter into a legal marriage, including being unmarried and (d) they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.5) Does the use of term domestic relationship bring “relationships in the nature of marriage “ at par with marriages?The law simply provides protection from violence to all women whether they are sisters, mothers, wives or partners living together in a shared household. The law however, does not state anywhere that an invalid marriage is valid. It provides protection from violence, the right to reside in the shared household, temporary custody of children, etc. However, for succession to the property of a male partner or in deciding the legitimacy of children, the general law of the land or the personal laws of parties will have to be relied upon.6) Against whom the complaint can file?A women can file a complaint against any adult male perpetrator (S.2 (q))of an act of violence. In cases where the woman is married, or lives in a relationship that is in the nature of marriage, she can also file a complaint against the male or female relatives of the husband /male partner who have committed the violence.7) Who fall within the meaning of” relatives” under Section 2(q)?The word “relative “has not been defined in the DV Act. Hence the ordinary meaning will have to be assigned.i.e. father, mother, sister, uncle, brother of the respondent who may included in the word “relative” in section 2(q).It also include female relatives.8 ) Can a complaint filed against husbands’ female relatives?Yes, orders can be passed against the female relatives of the husband except the relief of dispossession against the female relative under Sec.19(1) of the Act.9) Can mother in law file an application for reliefs against the daughter-in- law?No, a mother –in –law cannot file an application against her daughter-in –law (Section 2(q))However in cases where a mother-in-law is facing violence at the hands of her son and daughter-in –law as abetting the acts of violence committed by the son.10) How long does an interim order remain in force for?Interim orders shall remain in force till such time either of the parties applies for its alteration, modification or revocation. In order to get such an order, a change in circumstances has to be shown (section 25(2)).Interim orders are also vacated on the granting of the final order by the Court.11) Will a divorced wife have a right to claim relief under this DV Act from her Ex-husband?The answer to this question depends on the facts of the case. In cases where, at the time of divorce, she has in express terms waived such a right, she cannot claim it in the future.12) Can there be any appeals from an interim orders?Section 29 of the DV Act allows appeals to session courts from any orders passed by magistrate. No appeal should lie from an order which have not affected the rights of the parties or is procedural.13) Only married men are in danger?  No. Domestic Violence Bill extends to live-in relationships too.

Posted By

ASHISH SAMAL

4 days ago

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Hindu Succession Act

Question of Law1.     Whether excluding daughter from the entitlement in HUF is valid?2.     Whether unmarried daughter and married daughter have different titles in HUF?3.     Whether the married daughter loses her privileges after marriage?4.     Whether the law made in this behalf serves the objective of the legislation?Court ObservationThe Supreme Court consisting of the Division Bench of Three Judges before whom the matter was raised on some question of law with regards to The Hindu Succession Act. The Division bench after considering the matter filed before the court authored a 121-page judgment in which such issues were dealt at length, the Solicitor General of India at length while submitting the arguments presented various precedents to present the status of the daughter with regards Hindu Succession Act and landmark judgments decided by the court. The court to decide the matter following explanation with the angle of law has been put forth by the court:1.     Understanding the school of law that regulates Hindu lawThe Two laws that basically regulate the law in the country like India are the two school of thought which are known as the Mitakshara School of Law and the Dayabgha School of Law. The Mitakshara applies to almost every part of the country except the part of Bengal. The rules that were enunciated to govern the practices in Maharashtra was Maharashtra School that prevailed in the North India whereas the city/island of Mumbai was regulated by the Bombay School in western India. In the country with the variety of communities as descendants of various religious, sometimes also understood as caste it was in the Southern region such practices were regulated by the Marumakkatayam, Aliyasantana and Namburdiri system of law.2.     HUF (Hindu Undivided Family)Ascendants and descendants connected to each other by birth in one single-family which continues such lineage for a long period of time practices, professing and propagating Hindu as their religion is called a Joint Hindu Family. In the business side of the matter, a Joint Hindu Family is also termed as Hindu Undivided Family which is a form of business organization wherein the Joint Hindu Family run business with appointing one-person male of the family who is the eldest in the family to be Karta (sole decision-maker of the business) and coparcener (supporter or worker in the business). The rights of any person to be in the organization arise only if you the person take the birth in the Joint Hindu Family. A Joint Hindu Family holds the assets of the business jointly under the name of the family. The understanding of the law that governs the HUF is that after there is any severance of the assets of the business, the family ceases to be called a Joint Hindu Family. The court in the matter understands and concluded thatthere exist any mere separation of the worship or separation at the food tables such separation will not hold the same understanding as to the separation of the HUF.     3.     Hindu Succession Act before the 2005 Amendment The understanding that was explained needs a thorough revision of the provision of the Hindu Succession Act prior to the year 2005, wherein the courts understand that there exists no logical but firm emphasis to incorporate and appropriate the assets among the male membersof the family. The family assets though not literally but theoretically were apportioned between the male members of the family such ascendants like father, grandfather, great grandfather and so on and in the descendant's such son, grandson and so on. The law is understood to provide such lineal descendants up to the third generation, and the fourth generation would rise to such right after the death of the first generation. Nothing but the birth in the family accrues such rights to any person such was the understanding with regards to the confinement. The person taking birth in the Joint Hindu Family inherits the coparcenary rights from the father, grandfather and/or great grandfather. Any person being a coparcener in the HUF holding any property from any other mean and not from the inheritance from the member of the HUF will not be treated as his property in coparcenary right. No person can claim as a single individual right over any property belonging to the Joint Hindu Family every person belonging to the family and is in coparcenary relationship to the HUF hold the asset of the HUF jointly. With regards to any other option of entitlement as coparcener is by way of adoption,the court held that it is the only way that is understood other than the primary reason of inheritance that exists as per the rule of law and the customs that support the reasoning of law. The Court with respect to the position of the women in the Joint Hindu Family understand that there exist a relationship of women, but such relation due different perception was limited to the entitlement of family member but not as a coparcener. The court also further explains that as the rule of law prevails over any conclusion out customs or traditions and coparcenary is the creation of law and as far as the law is concerned the regulation that governs the partition of the Hindu Undivided Family such can only be demanded by any person in the capacity of a coparcener. The test for the partition of the Joint Hindu Family can only be concluded with the person being coparcener or not and/or such person has exercised the right for partition. 4.     Obstructed and Unobstructed Heritage The terms havebeen definedin the school of thoughts/law which govern the actions and regulated the practices of heritage in the Hindu laws, the Mitakshara School of the law states that unobstructed heritage rights also are known as “apratibandha daya” and the obstructed rights is known as “sapratibandha daya”. The rights have their defined way in determining the privileges and rules of their devolution and apportionment. As the unobstructed rights state that any right accrued to any person by way of nothing else than by birth it should be obstructed by an action, it should accrue from the start and continue until the apportionment or his death whichever is earlier. The unobstructed rights mean any person born in the family has a birthright in the property of the Joint Hindu Family at the earliest day of birth. An obstructed right is rather an indirect rule of receiving such privilege which is directly connected to the birth of the person, and obstructed right arises when a person who is a coparcener in the Joint Hindu Family is dead or died by any reason as such, and there exists no male issue after the death of the coparcener and when the person as remainder receive such right. The obstructed right suggests that there exist an obstruction because of which such right or privilege per say has to be withheld in this case it is obstructed by the existence of the male coparcener. It is the death of the coparcener when the obstructed rights in come in existence. The Court considered a brief overview of the school of law which governs and regulates practices of the inheritance, and the parallel history of the Joint Hindu Family and the focuses its attention on the provisions of the Hindu Succession Act, 1956. The Court finds it important for any person to understand the matter needs a fair overview of the Mitakshara School of thought to further create a basis of for deciding and understanding the law. Supreme Court StandThe Supreme Court opines that it was fair for the court to consider the law governing the Hindu Succession before directing anything in the above matter. The court further explains the Hindu Succession Act, 1956 pre-amendment scenario. The Supreme Court herein mentioned that as the law governs the act of Human in the civilization or as the modern goes society it does not mean that the law is correct in each sense and phase of life, as the changing times' models of the life changes and new policy which better suits the society needs to be implemented and so for all those reasons which penultimate goal to secure, pursue and decide in favour of justice is resort to be taken and thus benefits all. As per the Hindu Succession Act, 1956 wherein section 6 dealt with the devolution of rights in the coparcenary interest in the Joint Hindu Family assets which are governed by the Mitakshara School of Law. In the Act, the important thing is to consider that section 6 of the Act excludes the rule of succession, which concerns to Mitakshara coparcenary property. Any person who interests in the property existed, and he dies after the existence of the Act of 1956 his interest in the property will be dealt with the rules and regulation and/or principles of survivorship among the remaining members of the coparcenary who also can be called as surviving members of the coparcenary. In the year after 2005, various matters were filed, and the decision was made in behalf of the male child or male member of the family the discussion was held on the various occasion in different states considering the status of women in33 the world and with due consideration to the equal status and rights, and liabilities of the women was given priority and many states in the logical conclusion decided to make amendment in the Hindu Succession Act, 1956 and such amendment was made and complied. The extension of the rights of women was recognized in the Mitakshara School of law regarding the coparcenary in the Joint Hindu Family. In the Several States such as Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra the rights of women were extended to the equal status as to men in the Joint Hindu Family as a coparcener in the property. In Karnataka, the insertion in the following act was made in the year 1994 by amendment as section 6A pursuing to section 23 of the Karnataka Act, 1994. In the year 1985 the amendment was made in the state of Andhra Pradesh, and four years after the amendment in Andhra Pradesh the amendment was made in the State of Tamil Nadu in 1989. In the year 1994, the State of Maharashtra made the amendment by making an insertion by way addition under 29A in the Hindu Succession Act, 1956 as the notification came in very late, but the amendment was also proposed by Kerala in the year 1975. As the amendment was agreed and accepted in the law of succession in very few states, the inheritance was badly affected in consideration of women’s rights.    The Supreme Court of India, in its explanation, stated that there exists human relationship which is to be considered for inheritance or any such right of a coparcener. In the year 2005, the vast number of litigants with a new approach and new interpretation to the meaning of the provisions of the coparcener states that there should be an equal recognition to men and women while such position is concerned. The section 6 of the Hindu Succession Act will be dealt and interpreted differently from the time the Amendment Act of 2005 comes into effect, and it states that the daughter as a child to the person who owns the assets in the property of the Joint Hindu Family should be treated in the same way as a child born to such person as a son. Further, section 6(1)(a) states that there exists no difference between the daughter and the son, which if exist, is supported by law. Section 6 (1) (a) of the Act does not define the gender of the issue while it dies to say that any person by taking birth in the family is eligible for the position of the coparcener any even if the neonate is a girl can take this position or if so is eligible for such position if she had been a male. In the Act, while layperson makes a plain reading understand that it confers the same rights to female and male in the context of inheritance. The Court realizes the effect of the amendment will be brought in practices from the day this judgment is passed,but there has been injustice caused to many litigants who have filed the suit against not just the Supreme Court but many High Court in different states wherein the amendment act has not been passed by or approved by the State Government, and the same provisions of the Act havebeen complied with following the inequality to which justice never approves and/or permits if exists, so in the regards with the objective to make the wrong done right this amendment will have the retroactive effect, and all the cases wherein the right of coparcenary which has been denied to all the females will be reversed and applied but in such situation that the other facts may comply with the decision understood and applied with appropriate provision but just the facts of gender inequality will be dealt with this understanding. There also remains one question as regards to the death of any person who dies after the year of 2005 when the Amendment Act confirms the status of the provisions therein, the Court states as far as the section 6(3) of the Act is concernedif any person belonging to the Joint Hindu Family dies then such apportionment of the property will be passed by the testamentary or intestate succession and nothing shall be permitted to apportioned by the survivorship. The Court further states that there existed partitioned by way division of shares among the members of the Joint Hindu Family and should be divided and allotted and apportioned if there or happens any partition after the death of such person as concerned in the Act. In this partition, as mentioned earlier, there should not exist any gender inequality; the daughter should be allotted an equal share in the property of the father if there be a partition. There as stated exists the coparcenary right up to the third generation of lineal ascendants or descendants where in a situation the daughter is deceased at the time such partition her son and daughter will have the same rights as it was the son of the deceased son of the father who died up to three generations. The litigation, though, has brought a change in a delayed manner, but such change has brought itself with a vast area to be covered and provided for new thinking and relinquishment old idea and beliefs. The Act now states the apportionment by survivorship is completely have to go away as it destroyed the process to achieve the objective of the Act. Liability on Female CoparcenersThe Supreme Court, while explaining the concept of equality emphasized on the facts the equality if is intended to be brought home, will have to bringin its entirety there cannot exist equality where the privileges are provided but evaded from the act of responsibility and/or liability attached to such privileges. Section 6(4) of the Act makes the daughter liable in the same way as Son will if at all, such liability arises. The Hindu Law with this presumption of equality Will has to be stated with the interpretation that as any debt incurring on the Joint Hindu Family was repaid of settles or discharged by the son, grandson and/ or great-grandson likewise the daughter herein will have to discharge such debt as same if she was a son. The Court states that in deciding the matter, we state that we recognize the issues but also the proviso id read by a plain meaning provides a relief for all the partition commenced and concluded before the 20th December 2004 wherein the court states that only the partition that was made by the execution of the partition deed registered under the Indian Registration Act, 1908 and all such partitions decreed by the Court will be considered for such relief.The issues that werenot resolved earlier is that the decisions in the controversial matter of Prakash v/s Phulavati it raised a question before the Court whether the requirement of the father alive at the time of such partition or at the time when such Amendment Act of 2005 is mandatory or not whereas no established foundation has been found where to answer in the question in any other than it can be that is no mandatory requirement of the father to be alive in the year of Amendment Act if any time the father of the daughter dies, and there occurs a partition the daughter will be allotted an equal share in the property of the father. The Court disagrees with the opinion of the bench in the case of the Prakash v/s Phulavati. ConclusionIn India as succession is one of the common topics of discussion as the long history manifest the family and generational hierarchy in the country. The Country though were practicing the succession in most the conventional way appeared appropriate with the tradition followed by the royal families, but as the advance of understanding and maturity in the legal sector it was ruled as the guidelines issued which was enacted as the Act in the country by the legislature in the year 1956 known as the Hindu Succession Act, 1956. The understanding formed under the enacted Act was though governed with better perception than ever before but such rule of law if wishes to sustain the changes, need to be modified to the extent it satisfies the modern world expectation and so the matter has taken as priority by the Supreme Court to provide the way ahead for this Act to have a future and suffice the objective sought by the maker of the Law. The Act lacks the important aspects of modern world which is equality between male and female, the rights and privileges though not exclusive but includes liability was tilted towards the male in the family in the Joint Hindu Family. The Court has changed the perception of the Act and provides equal opportunity to male and female in the Joint Hindu Family with regards to liabilities and assets of the Hindu Undivided Family. The Court also makes such act retroactive and further serves the objective of the law maker and also makes it sustainable in today’s world.              The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters .Author :Kishan Dutt KalaskarAdvocate (Retired Judge)No.74, 1st Floor, 6th Cross,Malleswaram,Bengaluru-560003kalaskarnetra@gmail.comMob: 9686971935www.kishanretiredjudge.com

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Kishan Dutt Kalaskar Retired Judge

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I had been practicing and handling cases independently with a result oriented approach, both professionally and ethically since 2004 and has now acquired many years of professional experience in providing legal consultancy and advisory services.


I provides services in various fields of Criminal Laws, Family laws (Restitution of Conjugal Rights, Divorce, Domestic Violence, Maintenance, Criminal case-498a, property matters, etc.), family settlement, Property Laws, Dowry/divorce related cases, Compensations related matters, MACT, Matrimonial laws, Cheque bounce cases, Sexual Harassment, Internal Complaints Committee and drafting and vetting of various agreements and documents.

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