Hindu Law & Family matters part 3
Summary of Question- 498A Offence and Territorial Jurisdiction
Question – Whether for offence under section 498A, Territorial Jurisdiction can be at the place where wife has taken shelter after cruelty committed on her at the matrimonial house.
Answer- Yes. With regard to offence under section 498A, Territorial Jurisdiction may, depending upon the facts and circumstances of the case concerned, be at the place where wife has taken shelter after cruelty committed on her at the matrimonial house even though matrimonial place and the place of shelter fall under different court's Territorial Jurisdiction.
1. The question before a three judges bench of the Hon’ble Supreme Court in the case reported in 2019 (6) SCALE 96 was whether a woman forced to leave her matrimonial home on account of acts and conduct that constitute cruelty can initiate and access the legal process within the jurisdiction of the courts where she is forced to take shelter with the parents or other family members. I quote below the following observation and findings of the three judge Bench:
"14. "Cruelty" which is the crux of the offence Under Section 498A Indian Penal Code is defined in Black's Law Dictionary to mean "The intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage (Abuse, inhuman treatment, indignity)". Cruelty can be both physical or mental cruelty. The impact on the mental health of the wife by overt acts on the part of the husband or his relatives; the mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being ill-treated are aspects that cannot be ignored while understanding the meaning of the expression "cruelty" appearing in Section 498A of the Indian Penal Code. The emotional distress or psychological effect on the wife, if not the physical injury, is bound to continue to traumatize the wife even after she leaves the matrimonial home and takes shelter at the parental home. Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress cause by the acts of the husband including verbal exchanges, if any, that had compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place.”
“15. The Protection of Women from Domestic Violence Act, as the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in criminal law which is what is provided Under Section 498A of the Indian Penal Code. The definition of the Domestic Violence in the Protection of Women from Domestic Violence Act, 2005 contemplates harm or injuries that endanger the health, safety, life, limb or well-being, whether mental or physical, as well as emotional abuse. The said definition would certainly, for reasons stated above, have a close connection with Explanation A & B to Section 498A, Indian Penal Code which defines cruelty. The provisions contained in Section 498A of the Indian Penal Code, undoubtedly, encompasses both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498A at the parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. This is the kind of offences contemplated Under Section 179 Code of Criminal Procedure which would squarely be applicable to the present case as an answer to the question raised.”
16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences Under Section 498A of the Indian Penal Code."
2. In the CRIMINAL APPEAL NO.1096 OF 2019 (NITIKA vs. YADWINDER SINGH), decided on the 23rd. July 2019, the Hon’ble Supreme Court relied upon the said decision in Rupali Devi’s case.
Summary of question- Daughter’s right prior to and subsequent to amendment in 2005 in section 6 of H.S. Act.
Question- Whether Daughter is entitled for share in her father’s property who died intestate prior to amendment in 2005 (i.e., September 9, 2005) in section 6 of the Hindu Succession Act ?
Answer – Yes.
1. Legal position pertaining to section 6 of the Hindu Succession before the amendment made in 2005 , in brief, was as under:
(i) Law relating to partition under Hindu Law was that female member of Joint Family was not entitled to demand or compel partition of Coparcenary. The question, however, as to whether female members were entitled to their respective shares in notional partition to coparcenary property ( in cases where proviso to section 6 read with its Explanation I of the H.S Act applied) find answered by Hon’ble supreme Court in the case reported in AIR 1978 SC 1139. Short fact of this case was that one Khandappa died survived by his widow , 2 sons and 3 daughters. Khandappa and his 2 sons constituted coparcenary. As Khandappa died leaving behind female relatives of Class I, notional partition among (a) Khandappa ,(b) his 2 sons and (c) his Widow was effected whereby the widow was first entitled to 1/4th share in the coparcenary property. Thereafter, in the 1/4th. interest (share) of her husband in the coparcenary property (as a result of notional partition) , she (widow), 2 sons and three daughters took equally by application section 8 and section 10 read with its Rules 1 and 2 of the Hindu Succession Act.
(ii) In the case reported in 2006(8) SCC 656 , the Hon’ble Supreme Court observed and held as quoted below:
‘Reference in this connection may be made to a passage from the most authoritative Treatise of Mulla, Principles on Hindu Law, Seventeenth Edition, page 250 wherein while interpreting Explanation I to Section 6 of the Act, the learned author stated that
"Explanation I defines the expression 'the interest of the deceased in Mitakshara coparcenary property' and incorporates into the subject the concept of a notional partition. It is essential to note that this notional partition is for the purpose of enabling succession to and computation of an interest, which was otherwise liable to devolve by survivorship and for the ascertainment of the shares in that interest of the relatives mentioned in Class I of the Schedule. Subject to such carving out of the interest of the deceased coparcener the other incidents of the coparcenary are left undisturbed and the coparcenary can continue without disruption. A statutory fiction which treats an imaginary state of affairs as real requires that the consequences and incidents of the putative state of affairs must flow from or accompany it as if the putative state of affairs had in fact existed and effect must be given to the inevitable corollaries of that state of affairs’
‘Thus we hold that according to Section 6 of the Act when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession. Explanation 1 to Section 6 of the Act provides a mechanism under which undivided interest of a deceased coparcener can be ascertained and, i.e., that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. It means for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.’
(iii) In this connection, it is also relevant to quote below following observation of the Hon’ble supreme Court in a case reported in 1994 (6) SCC 342:
“Under the main provision of Section 6, the interest of Jamuna Prasad in the coparcenary property would have devolved by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act. But in the facts and circumstances of the case, the proviso to Section 6 along with the Explanation I is attracted since the widow and daughters are amongst the family relatives specified in Class I of Schedule to the Act. Proviso to Section 6 come into operation, if the deceased leaves behind any female relative specified in Class I of the Schedule of the Act or a male relative, specified in that Class, who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property. Then in that event, it shall devolve by intestate succession under the provisions of the Act and not by survivorship. As Jamuna Prasad leaving behind his widow the appellant and four daughter who shall be deemed to be family relatives specified in class I of the Schedule to the Act, the proviso to Section 6 shall come into play and the interest of Jamuna Prasad shall devolve according to the said proviso by way of intestate succession under the Act.”
2. The proviso to section 6 of H.S Act, prior to amendment, laid down that if a deceased coparcener was survived by any female relative specified in class I of the Schedule of the H.S Act (or male relative specified in that class claiming through such female relative) then the interest of deceased in Mitakshara Coparcenary property shall devolve by intestate succession as per H.S Act .
2.1. Explanation I to the section 6 provided for Deemed (Fictional/Notional) Partition. In view of this Explanation, it was deemed that that there was partition immediately before the death of the deceased coparcener .
2.2. In a case reported in AIR 2016 SC 1169, the Hon’ble supreme Court observed and held as quoted below:
“The law, therefore, in so far as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants. ”
3. In this connection, it is relevant to refer to the Hon’ble Supreme Court decision in the case reported in AIR 2012 SC 169 in which it has been observed as under:
“The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal.”
4. Following paragraphs from the Apex Court in a case reported in AIR 2009 SC 2649, is also relevant:
“We may in the aforementioned backdrop notice the relevant portion of the Statement of Objects and Reasons of the 2005 Act, which reads as under:
5. It is proposed to remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the same section so as to remove the disability on female heirs contained in that section. It is, therefore, evident that the Parliament intended to achieve the goal of removal of discrimination not only as contained in Section 6 of the Act but also conferring an absolute right in a female heir to ask for a partition in a dwelling house wholly occupied by a joint family as provided for in terms of Section 23 of the Act.”
6. Vide section 6 of the H.S Act (consequent upon amendment in 2005), daughter has been made a coparcener by birth like son, which is not in the un-enacted Hindu Law. As daughter has been made coparcener like son, section 23 of the H.S Act has also been omitted by the same amendment in 2005. Before amendment in 2005 , there was a provision in section 23 which disentitled a female heir to ask for partition in respect of a dwelling house.
7. With regard to Notional / deemed Partition under section 6 of Hindu Succession Act before amendment in 2005 as to share of class 1 female heir, the Hon'ble Supreme Court in Civil Appeal No. 8642 of 2009 (M. ARUMUGAM vs. AMMANIAMMAL), decided on the 8th January 2020, observed and held :
"When we read Section 6 of the Succession Act the opening portion indicates that on the death of a male Hindu, his interest in the coparcenary property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. That would mean that only the brothers would get the property. However, the Proviso makes it clear that if the deceased leaves behind a female heir specified in ClassI I of the Schedule, the interest of the deceased in the coparcenary property shall devolve either by testamentary or by intestate succession under the Succession Act and not by survivorship. The opening portion of Section 6, as it stood at the relevant time, clearly indicates that if male descendants were the only survivors then they would automatically have the rights or interest in the coparcenary property. Females had no right in the coparcenary property at that time. It was to protect the rights of the women that the proviso clearly stated that if there is a ClassI I female heir, the interest of the deceased would devolve as per the provisions of the Act and not by survivorship. The first Explanation to Section 6 makes it absolutely clear that the interest of the Hindu coparcener shall be deemed to be his share in the property which would have been allotted to him if partition had taken place immediately before his death."
8. In view of the above discussions, provisions contained in section 8 read with class-I of the Hindu Succession Act, which gave right to daughter in the matter of succession before amendment in section 6 in 2005, has NOT been taken away by the Amendment made in 2005 in section 6. As such, Daughter(s) is entitled to succeed as per section 8 of the Hindu Succession Act in the deemed / notional partition effected in terms of proviso to the old section 6 read with its Explanation I, if Father died intestate before September 9, 2005.
8.1. BUT a daughter cannot seek partition as coparcener if the Father died prior to September 9, 2005 because the amendment in 2005 in section 6 is not retrospective vide Supreme Court decision reported in 2016 (2) SCC 36.