Legal and Constitutional History of India PDF

Legal and Constitutional History of India MODULE I.3.1 -Legal System in Ancient India  Dharmashastras Dharmashastras are the Smriti texts on law and conduct. They were mostly in metrical verses and were based on Dharmasutras. However, they were a lot more systemati...

Legal and Constitutional History of India MODULE I.3.1 -Legal System in Ancient India  Dharmashastras Dharmashastras are the Smriti texts on law and conduct. They were mostly in metrical verses and were based on Dharmasutras. However, they were a lot more systematic and clearer. The texts cover ashrama (life stages), varna (social classes), purushartha (right life aims), personal virtues and duties including ahimsa (nonviolence) against all living beings, just war regulations, and other topics. These texts are mainly based on the Purana’s. The Dharmashastras, unlike the Vedas, are not the result of divine revelations. As a result, they are vulnerable to the flaws that the human mind is prone to. Some of the most prominent Dharmashastras are-Manusmriti, Yajnavalkya Smriti, Naradasmriti,Visnusmriti and Brihaspatismriti.  Dharmashastras-Manusmriti Manusmriti contains about 2685 verses in 12 chapters. The text is composed in metric Shlokas (verses), in the form of a dialogue between an teacher and disciples who are eager to learn about the various aspects of dharma. Manusmriti is considered the first code of Civil and Criminal Law in India. It is considered to be the most authoritative work on Hindu Law. According to him ‘Dharma’ was the supreme power in the state. King is considered merely an instrument to realize the goal of Dharma. Manusmriti is known as Mānava-Dharmaśāstra or Laws of Manu or Code of Manu. We can say that it is a compilation of the customary law, and exhibits the social organization which the Brahmans, after their successful struggle for supremacy, had established in the Middle Land of North India. The text can be broadly divided into four, each of different lengths and each is further divided into subsections. 1. Creation of the world 2. Source of dharma 3. The dharma of the four social classes 4. Law of karma, rebirth and final liberation  Dharmashastras-Manusmriti Duties Delegated to Different Castes The duties of the Brahmins are learning and teaching, performing religious sacrifices and getting them performed taking and giving donations. The duties assigned to Kshatriya include protection of common men, to donate, to perform religious sacrifices, to recite Vedas, to abstain from all forms of addictions etc. The duties assigned to Vaishyas include protection of animal’s, donations, religious sacrifices, business, trade, money lending and agriculture. The shudras are expected to serve the other three caste with benevolence and good will. Manu allowed the three twice born castes to learn Veda but only Brahmana was allowed to teach it. On account of his pre-eminence, the superiority of his origin, observance of restrictive rules and on account of his particular sanctification, the Brahmana is the lord of all castes.  Manusmriti -Marriage The minimum requirement for a Hindu man to get married is to find a chaste woman from his own caste. For ‘twice-born men’ a girl of equal caste has been recommended for the first marriage-sacrament. Twice-born men, marrying, through infatuation, a girl of the low caste, quickly reduce their families, along with their offspring, to the position of the Śūdra. One who marries a Śūdra girl becomes an outcast. Manu further says that only a woman with auspicious marks on her body may be married. Manu goes on to mention several categories of women who cannot be married.  Manusmriti -Marriage Manusmriti and Marriage Chapter 3 law 8: “One should not marry women who have reddish hair, redundant parts of the body [such as six fingers], one who is often sick, one without hair or having excessive hair and one who has red eyes.” The very next law to this says, “One should not marry women whose names are similar to constellations, trees, rivers, those from a low caste, mountains, birds, snakes, slaves or those whose names inspire terror.” Law 10 and 11 of chapter 3 says- “Wise men should not marry women who do not have a brother and whose parents are not socially well known.” (3:10) “One should marry a female with a faultless body, bearing an agreeable name, having her gait like that of the swan or the elephant, having fine hair on the body and the head, and fine teeth, and with tender limbs..” (3:11).  Manusmriti -Marriage A few other categories of women who cannot be married are sapindas of the Hindu man on his mother's side, or women who are related to him on his father's side of the family. [The concept of Sapinda relationship as defined in the Smritis as 7 degrees with respect to father’s side and 5 degrees with respect to the mother’s side. But after HMA, as per Section 3(f) it has been relaxed. Sapinda Relationship extends as far as 3rd generation in the line of ascent through the mother in case of both the parties. Sapinda relationships extends as far as 5th generation in the line of ascent through the father in case of both the parties]. According to Section 3 (g) of HMA 1955: Degrees of prohibited relationship- two persons are said to be within the degrees of prohibited relationship; i. if one is a lineal ascendant of the other; or ii. if one was the wife or husband of a lineal ascendant or descendant of the other; or iii. if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or iv. if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;  Manusmriti –Types of Marriage Brahma Vivah– In this way of conducting weddings, the father of the bride gives her away to a knower of the Vedas invited by the father himself after decorating the bride with jewellery and fine clothes. Daiva Vivah– In this type of wedding the father of the bride gives her away to the officiating priest at a yagya or a yajna (a sacrifice), while the yajna is ongoing. Arsha Vivah– In this type of Hindu wedding, the father of the bride gives her away to a groom who gifts to the father one cow and one bull or two cows and two bulls. Prajapatya Vivah – Similar to the Brahma vivah, except that the bride’s father gives her away as a gift, not to the groom, but to the groom’s father.  Manusmriti -Marriage Gaandharva Vivah (wedding in the way followed by gandharvas)– The couple simply choose to marry by mutual consent. Asura Vivah – In this type of Hindu wedding, the groom voluntarily gives as much money and gifts as he can afford to give to the bride and to her family in order to get her consent for marriage. Rakshasa Vivah-where the groom forcibly abducts the bride against her will and her family's will. Paishacha Vivah (wedding in the manner of pishaachas, or lost souls)– where the man forces himself on a woman when she is insentient: when she is drugged or drunken, possessed or unconscious and thus is married unwillingly, and which has been outlawed by Manu.  Manusmriti -Marriage Second Marriage Manu permits second marriages for men. He is in fact much more liberal in terms of caste requirements in the case of second marriages than in first marriages. He says that any man can marry any woman of his own caste or a lower caste should he decide to take a second wife. Manu considered marriage with in the same caste as the excellent form. However, Anuloma is also allowed but Pratiloma is condemned. Anuloma is a marriage between a man of a higher caste and a woman of a lower caste. Pratiloma is the marriage between woman of a higher caste and man of a lower caste. However, this comes with the proviso that any Brahman who takes a Shudra wife as his second wife will go to hell after death if he sleeps with her. If he happens to procreate with her, he will lose his caste and acquire her caste. The Hindu Widow’s Remarriage Act 1856 The Hindu Widow’s Re-marriage and Property Act, 1989  Manusmriti -Divorce Divorce Manusmriti offers an inconsistent and internally conflicting perspective on Divorce. The text, for example, declares that a marriage cannot be dissolved by a woman or a man, in verses 8.101–8.102. Yet, in other sections, the text allows either of the spouse to dissolve the marriage. For example, verses 9.72–9.81 allow the man or the woman to get out of a fraudulent marriage or an abusive marriage, and remarry; the text also provides legal means for a woman to remarry when her husband has been missing or has abandoned her. Section 13 of Hindu Marriage Act, 1955.  Manusmriti -Divorce Manusmriti says that for one year let a husband bear with a wife who hates him, but after the lapse of a year let him deprive her of her property and cease to cohabit with her. He further states that on being superseded, if a wife, in anger, go away from the house, she shall be immediately confined. Even in the case of grievous sins, the woman is not to be turned away, since it has been laid down that ‘she is to be kept imprisoned in one room’. The confiscation of her property also is for the purpose of bringing her to her senses; and it does not mean absolute taking away of all her belongings. She who shows disrespect to a husband- who is addicted to some evil passion, is a drunkard, or diseased, shall be deserted for three months and be deprived of her ornaments and furniture.  Manusmriti -Divorce But she who shows hatred towards a mad or outcast husband, a eunuch, one destitute of manly strength, or one afflicted with such diseases, punished for crimes, shall neither be cast off nor be deprived of her property. She who drinks spirituous liquor, is of bad conduct, rebellious, diseased, mischievous, may at any time be superseded by another wife. A barren wife may be superseded in the eighth year, she whose children all die in the tenth, she who bears only daughters in the eleventh, but she who is quarrelsome without delay. There is no mention of instances where a woman can stop cohabiting with her husband. However, she can remarry if the husband is an emigrant and has not returned back for the duration which is stipulated based on the caste.  Manusmriti-Property Rights After the death of the father and of the mother, the brothers, being assembled, may divide among themselves in equal shares the paternal and the maternal estate; for, they have no power over it while the parents live. (Or) the eldest alone may take the whole paternal estate, the others shall live under him just as they lived under their father. As a father supports his sons, so let the eldest support his younger brothers, and let them also in accordance with the law behave towards their eldest brother as sons behave towards their father. The eldest son makes the family prosperous or, on the contrary, brings it to ruin; the eldest is considered among men most worthy of honour.  Manusmriti-Property Rights If the eldest brother behaves as the eldest brother, he must be treated like a mother and like a father; but if he behaves in a manner unworthy of the eldest brother, he should yet be honoured like a kinsman. Either let them thus live together, or apart, if each desires to gain spiritual merit; for by their living separate their merit increases, hence separation is meritorious. Manusmriti recognizes the property rights of adopted child. Under 9.185, it is said—‘Sons, and not brothers or fathers, are the inheritors of the father’s property’—where all sons are declared to be entitled to inheritance. So long as the ‘legitimate’ son is alive, the ‘Kṣhetraja’ and other sons are entitled to maintenance only: Property Rights – Comparison with other Authors Gautama (28.1).—‘After the father’s death, the sons shall divide his estate.’ Baudhāyana (2.3.3, 8).—‘A father may divide his property among his sons;—while the father lives, the division of the estate can take place only with his permission.’ Viṣhṇu (18.36).—‘Sons who are of the same caste as the father shall receive equal shares.’ Āpastamba (2.13.1-3).—‘Sons begotten in the right manner on a wife of the same caste as oneself have a right to inherit the estate;—if they do not sin against either of the parents.’ Yājñavalkya (2.117).—‘After the parents, the sons shall divide equally their property as well as their debts; the mother’s property, what remains after the paying off of the debts, her daughters shall divide among themselves; and in the absence of the daughters, the offspring of their daughters.’ Kātyāyana (Aparārka, p. 12).—‘Partition is ordained only among those sons who have attained their majority;—for males, majority is attained in the sixteenth year.’ Arthaśāstra (p. 31).—‘During the life-time of the parents, the sons have no right over the ancestral property; after the death of the parents, there is partition of the ancestral property, and also of the self-acquired property of the father... There shall be an equal division of the property and of the debt.’ Nārada (13.49-50).—‘After their father’s death, the sons shall succeed to his wealth in order; whenever a superior son is wanting, the one next to him shall succeed. On failure of a son, the daughter succeeds; because she continues the lineage just like the son.’  Manusmriti-Stridhana Manu says that when their mother dies, all the uterine brothers and sisters should divide the maternal estate equally among themselves. If those sisters have any daughters, one should joyfully give them also, as is proper, something from their maternal grandmother’s property. Women’s property include, (1) What is given before the fire, (2) what is given at the time of departure, (3) what is given in token of love, and what is received from (4) the brother, (5) the mother and (6) the father,—has been declared to be ‘Strīdhana’ (the exclusive property of the woman). Also the gift that is subsequently made to her by her loving husband, shall go to her offspring, if she dies while her husband is living. It is ordained that the property of women married by the ‘Brāhma,’ the ‘Daiva,’ the ‘Ārṣa,’ the ‘Gāndharva,’ or the ‘Prājāpatya’ form, shall go to her husband alone if she dies childless.—(196) But the property given to a woman on the ‘Āsura’ or other (inferior) forms of marriage, has been held to belong to her parents, upon her dying childless.(see 3.20-34). Women must never alienate the common property of the family or even their own private property without the consent of their husbands. The ornament worn by the woman during her husband’s life-time, her heirs shall not divide; if they divide it, they become outcasts.  Manusmriti-Stridhana/Women’s Property Thus we can say that the tradition presents six types of women's property: 1. What a woman receives at the marriage, 2. What she receives when she is taken away, 3. What she is given as a token of love, 4. What she receives from her brothers, mother, and father. 5. What she receives subsequent to the marriage and 6. What her husband gives her out of affection— upon her death that property goes to her children even if her husband is alive.  Evolution of Right to Property of Women A study carried out by Dr. A.S. Altekar and Upadhya of the ancient texts primarily consisting of four Vedas and the Smritis show that Vedic Indian women had varying degrees of rights over the property, vis-à-vis their position in the family. But women were never treated as co-parceners in the Joint Hindu Property. In the Rise and Fall of Hindu Women, Ambedkar argued that in the Brahmanical framework, women were placed as equal to Shudras, both of whom were denied the basic human right of having property, self-respect and of acquiring knowledge and renunciation which is the ‘lone way of salvation in Hinduism.  Principles of Inheritance under Mitakshara and Dayabhaga School Dayabhaga School Mitakshara School 1. The right to inheritance arises from the spiritual 1. The importance of blood relationship in offerings to the deceased ancestors; matters of inheritance; (Right over the 2. The right over Hindu joint family property devolves property is by virtue of birth) to the heir on the death of the father and not by birth; 2. Restrictions placed on coparceners' share in the joint family property (As the rights are 3. For heirs of joint family property, each share is definite, and each brother can sell his particular not absolute and constantly fluctuate due to fraction of the share; the birth or death of other coparceners); 4. If no male descendants exist, a widow has the right 3. The distinction between male and female to succeed to her deceased husband’s share and heirs. enforce partition. Women's Property Under Mitakhshara School 1. The Mitakhshara School did not recognize women's right to inherit property from her husband's family and a woman could possess only stridhan. Mitakhshara School expanded to include nine types: 5) Property acquired by compromise, 1) Gifts and bequests from relations, 6) Property obtained by adverse possession, 2) Gifts and bequests from strangers, 3) Property acquired by self-exertion 7) Property obtained in lieu of maintenance, and mechanical arts, 8) Property obtained by inheritance, 4) Property purchased with stridhan, 9) Share obtained by partition  Women's Property Under Mitakhshara School Mitakshara School classifies Stridhana in to ; Sauadayika: which she received as gifts from relatives of both sides (parents and husband), Non-sauadayika: which included gifts from strangers and property acquired - married woman, over which she had no right of alienation without the consent of her husband. The Mitakhshara School considered all the nine types of succession as Stridhan. But, in Bhagwandeen v. Maya Baee and Sheo Shankar v. Devi Sana the Privy Council differed from the ancient school of thought regarding the characteristics of inherited property. It was decided that when the property is inherited by females from males and also by females from females, it no longer retains the characteristics of ‘Stridhan,’ but becomes ‘women's estate.’  Women's Property Under Mitakhshara School On partition, a female is entitled to obtain her fair share in the property but she undertakes it only as a limited owner as her rights are subject to two limitations: She cannot alienate the corpus (things or shares obtained in partition) in an ordinary manner, and After her death, her property will be entrusted to the next heir of the last full owner.  Women's Property Under Mitakhshara School Widow who is a limited heir, does not acquire the property for her lifetime, her right of alienation is limited and after her death, the property does not pass to her heirs but rather to the heirs of the last owner thereof. She was owner of the properties inherited by her from her husband, but except under the following conditions, she could neither sell the property nor could she mortgage it nor could she alienate it— For legal necessity; For benefit to the estate; With the consent of the next reversioners; For religious and charitable purposes. The Hindu Women's Rights to Property Act, 1937 In 1937, the Hindu Women's Rights to Property Act, 1937 was enacted. The act introduced revolutionary changes in Hindu law. It included the widow/ widows of the deceased, the predeceased son’s widow and the widow of the predeceased son of a predeceased son in the list of heirs. It was prospective in its application and applied to property other than agricultural land and impartible estates. Section 2 of the act expressly repealed the pre-act customs and rules that were contrary to the provisions of this act. The Hindu Women's Rights to Property Act, 1937 Section 3-Devolution of property. - (1)When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving the separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a sons son if there is surviving a son or sons son of such predeceased son: Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. The Hindu Women's Rights to Property Act, 1937 Section 3-Devolution of property. - (2)When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu wowans estate, provided however that she shall have the same right of claiming partition as a made owner. Major Changes Introduced by the Hindu Succession Act 1956 174th Law Commission Report The 1956 act under section 14 abolished the concept of the limited estate for Hindu Women and replaced the same with absolute ownership. Applicability of the act is defined under section 2(1) of the act. Recognized the rights of illegitimate children. Overriding effect (Section 4): The Act replaces any previous Hindu law (text, rule, or custom) that deals with topics covered by this Act. The old laws will no longer apply if they contradict the provisions of this Act. Any other existing law before the Act’s commencement will cease to apply to Hindus if it contradicts the Act. It abolished the doctrine of survivorship in the case of male coparceners who die as members of the undivided Mitakshara coparcenary.  The Hindu Succession Act 1956 It abolished the pious obligation of son to pay the debt of the father. Introduced daughters and her children in her absence as primary heirs in preference to the male collaterals and made her marital status irrelevant for determining her rights of inheritance. It empowered the female coparcener to make a testamentary disposition of her share in the coparcenary property. The act has made the widow of the intestate a primary heir and her right to succeed cannot be defeated on grounds of unchastity. 11 females were included in the list of Class I heir of a Male intestate. (Mother, Widow, Daughter, Daughter of a pre-deceased son, Daughter of a pre- deceased daughter, Widow of a pre-deceased son, Daughter of a pre-deceased son of a pre-deceased son, Widow of a pre-deceased son of a pre-deceased son, Daughter of a pre-deceased daughter of a pre-deceased daughter, Daughter of a pre-deceased son of a pre-deceased daughter; Daughter of a pre-deceased daughter of a pre-deceased son).  The Hindu Succession Act 1956 Section 14 of the Hindu Succession Act: Property of a female Hindu to be her absolute property.— Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. 2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.  The Hindu Succession Act 1956 Problem 1: Hindu male ‘H’ died leaving behind a widow ‘W’ and 2 daughters (D1 and D2) in the year 1940. In 1945 the widow alienated her husband's estate in favour of some X, Y and Z. In the same year, one of her daughters (D2) in a representative capacity on behalf of the reversioners instituted a suit impleading the alienees, the widow (W) and her sister (D1) and prayed for a declaration that the alienation was null and void. The suit was decreed in favour of the reversioners, and the alienees preferred an appeal to the High Court impleading the W, D1 and D2 as respondents. This whole process of suits and trials took 12 years. Now on 7th June 1957, the court is considering this matter for the final judgement. Give your comments.  The Hindu Succession Act 1956 Problem 2: A, and B are brothers. A, B and son of B (BS) constituted a Hindu joint family and were governed by the Mitakshara Law of the Benares School. ‘A’ died in 1952 leaving behind a surviving wife (AW). On December 15, 1956, the widow of ‘A’ sold a half share in a house and a shop belonging to the joint family to X. B along with BS commenced an action for a decree declaring that the sale by the widow of A was null and void as she is not having any right of alienation over the property. Comment. Succession to the Property of Female Intestate General rules of succession in the case of female Hindus.― 1. The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,― a) firstly, upon the sons and daughters (including the children of any pre- deceased son or daughter) and the husband; b) secondly, upon the heirs of the husband; c) thirdly, upon the mother and father; d) fourthly, upon the heirs of the father; and e) lastly, upon the heirs of the mother. Succession to the Property of Female Intestate (2) Notwithstanding anything contained in sub-section (1),― a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred in sub-section (1) in the order specified therein, but upon the heirs of the father; and b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.  Hindu Succession (Amendment) Act 2005 Substitution of new section for section 6: (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- By birth become a coparcener in her own right in the same manner as the son; have the same rights in the coparcenary property as she would have had if she had been a son; be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December 2004.  Hindu Succession (Amendment) Act 2005 (2) Any property to which a female Hindu becomes entitled by virtue of sub- section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of a such pre-deceased son or of such pre-deceased daughter; and  Hindu Succession (Amendment) Act 2005 (c) the share of the pre-deceased child of a pre-deceased son or of a pre- deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation- For the purposes of this sub-section, 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.  Hindu Succession (Amendment) Act 2005 (c) the share of the pre-deceased child of a pre-deceased son or of a pre- deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation- For the purposes of this sub-section, 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.  Hindu Succession (Amendment) Act 2005 Prakash & ors V. Phulavati & ors (2015): ‘A’ a Hindu male died in 1988 leaving behind his sons and a daughter (D1). Daughter filed a case in 1992 claiming 1/7th share in the ancestral property and 1/28th share in a different property before the Additional Civil Judge, Belgaum. The suit was contested mainly with the plea that the plaintiff could claim share only in the self-acquired property of her deceased father and not in the entire property. During the pendency of the case 2005 amendment came into effect and the respondent amended the petition to claim her right in the capacity of a coparcener. Not satisfied with the judgement of the court the respondent approached HC. HC by referring to the decision of SC in G. Sekar Vs. Geetha, held any development in law during the pendency of the case is applicable on a pending case. Aggrieved by the decision of the HC the appellants approached the SC. The only issue before the court was whether Section 6 introduce by the Hindu Succession (Amendment) act 2005 is having retrospective effect or not? SC accepted the contention of appellants that the present case is a case of notional partition and was governed by the parent act and not by the amendment act. Hence Section 6 doesn’t have any retrospective effect.  Hindu Succession (Amendment) Act 2005 Danamma v. Amar (2018): The appellants are two daughters of a Hindu male, who was member of a Joint Hindu Family and died in 2001. He left behind two son’s, two daughters and his widow. After his death the son’s filed a suit for partition and separate possession of the suit property. They pleaded that the appellants (daughters) were not coparceners as they were born before the enactment of the act and they were given their share in the form of gold and jewellery at the time of marriage and had relinquished their share. The appellants claimed that they are also entitled to the share and the father died only after the 1956 came in to force. The trial court ruled that the appellants (people making the appeal) were not entitled to any share of the property because they were born before the law (Act) was enacted and therefore could not be considered coparceners. The court also rejected their alternative argument that they should receive a share of the property due to the amendment to the Act in 2005. The High Court agreed with this decision and upheld the trial court's ruling in its judgment on January 25, 2012. Now the question before the court is that ‘Whether the appellants can be denied the share on the ground that they are born before the enactment of the act’? Held, Section 6, as amended by the Act of 2005, establishes that from the time of the amendment, daughters of coparceners will have the same rights as sons, becoming coparceners by birth. This means that both sons and daughters are entitled to a share in the coparcenary property from birth. The amended section conferred full rights upon the daughter, who could claim her rights to the property in question despite her father having passed away in 2001 before the amendment came into force.  Hindu Succession (Amendment) Act 2005 Vineeta Sharma v Rakesh Sharma (2018): The question about how to interpret Section 6 of the Hindu Succession Act, 1956, as amended by the Hindu Succession (Amendment) Act, 2005, has been sent to a larger Bench because of conflicting decisions in two previous cases by the Division Bench of this Court: Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36, and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343. Other similar cases have also been referred for a hearing along with these cases. Whether the father coparcener need to be alive on 9 November 2005? Whether a daughter born before 9 November 2005 could claim equal rights and liabilities in coparcenary as a son? Held, that the issue of when the death of the father occurred was not relevant, as survivorship was only the mode of succession, not that of the formation of coparcenary rights. Thus, the bench held that the Court erred in its decision in Phulavati since it did not consider how a coparcenary is created. The court held that it is retroactive in nature.  Manusmriti and Gender rights Day and night women must be kept in dependence by the males (of) their (families), and, if they attach themselves to sensual enjoyments, they must be kept under one's control. In childhood she should remain under the control of her father, in youth under that of her husband, and on the husband’s death under that of her sons; the woman should never have recourse to independence. She should not seek separation from her father, husband or sons: by separating, the woman would render both families disreputable. Women must particularly be guarded against evil inclinations, however trifling they may appear; for, if they are not guarded, they will bring sorrow to two families. She should be always cheerful and alert in household-work; she should have the utensils well-cleaned and in spending she should be close-fisted. Him to whom her father may give her,—or her brother with the father’s permission,—she shall attend upon as long as he lives, and shall not disregard him when he is dead. Be he ill-mannered or of licentious habits or destitute of good qualities,—the husband should always be attended upon like a god by the true wives. There is no separate sacrificing for women, no observances, no fasting's; it is by means of serving her husband that she becomes exalted in heaven. Well might she reduce her body by means of pure flowers, roots and fruits; but she should not even mention the name of another man after her husband is dead. Manusmriti and Gender Rights Goddess of Chastity Global Symbol of Justice Tamil Epic Silappatikaram  Manusmriti and Gender Rights Considering that the highest duty of all castes, even weak husbands (must) strive to guard their wives. He who carefully guards his wife, preserves the purity of his offspring, righteous conduct, his family, himself, and his means of acquiring merit. The husband, after conception by his wife, becomes an embryo and is born again of her. Let the husband employ his wife in the collection and expenditure of his wealth, in keeping everything clean, in the fulfilment of religious duties, in the preparation of his food, and in looking after the household utensils. If the husband went abroad for some sacred duty, she must wait for him eight years, if he went to acquire learning or fame six years, if he went for pleasure three years. But a sick wife who is kind to her husband and virtuous in her conduct, may be superseded only with her own consent and must never be disgraced.  Manusmriti and Gender Rights If twice-born men wed women of their own and of other lower castes, the seniority, honour, and habitation of those wives must be settled according to the order of the castes /varna. Among all twice-born men the wife of equal caste alone, not a wife of a different caste by any means, shall personally attend her husband and assist him in his daily sacred rites. But he who foolishly causes that duty to be performed by another, while his wife of equal caste is alive, is declared by the ancients to be as disgraceful as a candala.  Post Independent India- Steps taken by Government of India to Bring Gender Equality The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. Article 14: Equality before law for women Article 15: The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15 (3):The State to make any special provision in favour of women and children. Article 16: Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood (Article 39(a)); and equal pay for equal work for both men and women (Article 39(d))  Post Independent India- Steps taken by Government of India to Bring Gender Equality Article 39 A: To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Article 42: The State to make provision for securing just and humane conditions of work and for maternity relief. Article 46: The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation (Article 46) Article 47: The State to raise the level of nutrition and the standard of living of its people. Article 51(A) (e): To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women.  Post Independent India- Steps taken by Government of India to Bring Gender Equality Article 243 D(3): Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat. Article 243 D(4): Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women. Article 243 T(3): Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality. Article 243 T (4): Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide.  Post Independent India- Steps taken by Government of India to Bring Gender Equality Immoral Traffic (Prevention) Act, 1956 The Maternity Benefit Act, 1961 (Amended in 1995) Dowry Prohibition Act, 1961 The Medical Termination of Pregnancy Act, 1971 The Contract Labour (Regulation and Abolition) Act, 1976 The Equal Remuneration Act, 1976 The Prohibition of Child Marriage Act, 2006 Indecent Representation of Women (Prohibition) Act, 1986 Commission of Sati (Prevention) Act, 1987 The Protection of Women from Domestic Violence Act, 2005 Post Independent India- Steps taken by Government of India to Bring Gender Equality Economic Participation & Opportunity and Health & Survival Beti Bachao Beti Padhao (BBBP) ensures the protection, survival and education of the girl child. Mahila Shakti Kendra (MSK) aims to empower rural women with opportunities for skill development and employment. Working Women Hostel (WWH) ensures the safety and security for working women. Scheme for Adolescent Girls aims to empower girls in the age group 11-18 and to improve their social status through nutrition, life skills, home skills and vocational training Mahila Police Volunteers (MPV) envisages engagement of Mahila Police Volunteers in States/UTs who act as a link between police and community and facilitates women in distress. Rashtriya Mahila Kosh (RMK) is an apex micro-finance organization that provides micro-credit at concessional terms to poor women for various livelihood and income generating activities. The National Crèche Scheme ensures that women take up gainful employment through providing a safe, secure and stimulating environment to the children. Pradhan Mantri Awaas Yojana aims to provide housing under the name of the woman also. Post Independent India- Steps taken by Government of India to Bring Gender Equality Economic Participation & Opportunity and Health & Survival Pradhan Mantri Kaushal Vikas Yojana (PMKVY) aims to enable a large number of Indian youth including women to take up industry-relevant skill training in securing a better livelihood. Deen Dayal Upadhyay National Urban Livelihoods Mission (DAY-NULM) focuses on creating opportunities for women in skill development, leading to market-based employment. Pradhan Mantri Ujjwala Yojana empowers women and protects their health by providing LPG cylinder free of cost. Sukanya Samriddhi Yojna(SSY) - Under this scheme girls have been economically empowered by opening their bank accounts. Skill Upgradation & Mahila Coir Yojna is an exclusive training programme of MSME aimed at skill development of women artisans engaged in coir Industry. Prime Minister’s Employment Generation Programme (PMEGP) - a major credit- linked subsidy programme aimed at generating self-employment opportunities through establishment of micro-enterprises in the non-farm sector Female Entrepreneurship: To promote female entrepreneurship, the Government has initiated Programmes like Stand-Up India and Mahila e-Haat (online marketing platform to support women entrepreneurs/ SHGs/NGOs), Entrepreneurship and Skill Development Programme (ESSDP). Pradhan Mantri Mudra Yojana (PMMY) provides access to institutional finance to micro/small business. Thank You