2015 (10) TMI 2761 - SC - Indian Laws

Partition of property - stand of the defendants-appellants was that the plaintiff could not claim any share in self acquired property of the members of the joint family and that the claim of the plaintiff had to be dealt with only under Section 6 of the Hindu Succession Act, 1956 as it stood prior to the amendment by Act 39 of 2005 - Whether Hindu Succession (Amendment) Act, 2005 ( the Amendment Act ) will have retrospective effect? HELD THAT - The proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December, 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. 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 matter is remanded to the High Court for a fresh decision in accordance with law.

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.

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