Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai The Hindu Succession Act, 1956 The Act provides for intestate succession amongst Hindus. Important definitions- Agnates, Cognates, Heir, Descendants and Ascendants S. 6 of the Hindu Succession Act, 1956- Devolution of share/interest in the coparcenary property > The original S. 6 of the Act provided for survivorship, but the Hindu Succession (Amendment) Act, 2005 abolished the concept of survivorship. > S.6(1)- i) The daughter of a deceased Hindu shall, by birth, become a coparcener in her own right just as a son. ii) She is entitled to receive an equal share in the coparcenary property of the deceased parent just as a son. iti) She shall be subject to the same liabilities in respect of the property as that of a son. > §, 6(2) The daughter shall be regarded as the sole owner of her share in the coparcenary property and her share is capable of being disposed of by her by testamentary disposition/will. a Hindu dies after the commencer 7005, his interest in the coparcenary > §. 6(3)- Where ment of the Hindu Succession (Amendment) Act, property shall devolve on his heirs by testamentary or intestate as the case may be, and not by survivorship. Page 1 0f9 | succession,Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai © The daughter is allotted the same share in the coparcenary property as is allotted to a son. © The share of a pre deceased son shall be allotted to his surviving widow and children equally. © The share of a pre deceased daughter shall be allotted to her surviving children equally. > S. 6(4)- The Hindu Succession (Amendment) Act, 2005 abolished the doctrine of pious obligation. Page 2 of 9y Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai The rules of succession in case of death of a Hindu male (S. 8, S.9, S. 10 and S. 11) S. 8 of the Hindu Succession Act, 1956- When a Hindu male dies intestate (ie., without writing a will), his property shall devolve on his heirs. > The heirs are classified into four classes: + Class I + Class II + Class IIT + Class IV > Class I heirs include- Widow, sons, daughters, mother, widow of a pre deceased son, son of a pre deceased son, daughter of a pre deceased son, son of a pre deceased daughter and daughter of a pre deceased daughter. If there is no body available in class I to take the property, class II heirs shall be considered. > Class II heirs are divided into 7 categories a) Category 1 consists of father. If the father of the deceased person is alive, the property shall devolve upon the father completely. b) Category 2 consists of great grandchildren, brothers and sisters ©) Category 3 consists of children of brothers and sisters, ic. nephews and nieces 4) Category 4 consists of paternal grandparents e) Category 5 consists of paternal uncles and aunts f) Category 6 consists of ‘maternal grandparents 2) Category 7 consists of maternal uncles and aunts Page 3 0f 9“Notes by Anuradha Kumar ene Asst. Professor SNDT Law School, Mumbai in the property) If (Within a category, everyone shall take equal shares in the p' Lass III heirs there is no body available in class II to take the property, clas shall be considered. is no Class III heirs include the agnates of the deceased person. If there irs shall be body available in class III to take the property, class IV heirs sl considered. Class IV heirs include the cognates of the deceased person. Therefore, it can be summed up by saying that the property of the Hindu male devolves in the following manner: + First, to the heirs in Class I. Second, if there exists no heir in Class I, then it goes to Class II heirs. Third, if none from the Class 1 or II exists, then it goes to Class III heirs (the agnates.) Fourth, if no one from the earlier three classes exists, then it goes to Class IV heirs (the cognates.) S.9 of the Hindu Succession Act, 1956- Class I heirs are called as S.9 of the Hindu Succession Act, 1956. Preferential heirs. Each person in class I will take equal share in the Property of the deceased person. Even if there is only a single person alive in class I, he/she shall take the entire property. S.10 of the Hindu Succession Act, 1956- att of the Hindu Succession Act, 1956- RULE 1- In class I, the widow of the deceased Person will take 1 share, Page 4 of9Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai RULE 2- The mother of the deceased person will take | share, the son of the deceased person will take | share, the daughter of the deceased person will take 1 share. (Equal distribution.) RULE 3- If the son has already died before the deceased person (i.e. @ (the share which he would have pre deceased son), the son’s share his sons and received if he had been alive) shall be given to his widow, his daughters (equally.) This type of distribution of property is called as per stripes distribution. If the daughter has already died before the deceased person (i.e. @ Pre deceased daughter), the daughter's share (the share which she would have received if she had been alive) shall be given to her sons and her daughters (equally.) This type of distribution of property is called as per stripes distribution. cession Act, 1956- In class II, the property will S. 11 of the Hindu Suce devolve category wise. Category I is preferred over category 2, category 2 is preferred over category 3, and so on. Within a category, if there is more than 1 person, everyone in the category shall take the property equally. Page 5 of 9Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai The rules of succession in case of death of a Hindu female S. 14, S. 15 and S. 16 S$. 14 of the Hindu Succession Act, 1956- Any property possessed by a Hindu female shall be held by her as the full owner of the property and not as a limited owner. The term “property” shall include both movable and immovable property and the property may be acquired by a Hindu female- a) By gift, or b) By her own skill, or ©) By purchase, or 4) By succession, or e) By partition, or £) By prescription (uninterrupted and peaceful possession and use of property for 20 years), or g) In lieu of maintenance or arrears of maintenance, or h) In any other manner S. 15 of the Hindu Succession Act, 1956- When a Hindu female dies intestate (ie., without writing a will), her property shall devolve on her heirs. The hei re classified as- Category 1- Husband, sons, daughters, son of a pre deceased son, daughter of a pre deceased son, son of a pre deceased daughter and daughter of a pre deceased daughter. Category 2- Heirs of the husband Category 3- Father and mother Page 6 of 9Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai Category 4- Heirs of the father Category 5- Heirs of the mother ‘S15 provides for an exception- If any property has been inherited by a Hindu female from her father or mother (not her self-acquired property) and the Hindu female dies without leaving behind any children or grandchildren, the property shall devolve upon the heirs of the father and not upon the husband or heirs of the husband in category 2. Om Prakash Vs. Radhacharan (2009) S. 16 of the Hindu Succession Act, 1956- In relation to property distribution of a Hindu female, the property will devolve category wise. The heirs specified in category 1 shall be preferred over the heirs specified in category 2. The heirs specified in category 2 shall be preferred over the heirs specified in category 3, and so on. Within a category, if there is more than 1 person, everyone in the category shall take the property equally. For example, in category 1, the husband of the deceased female will take 1 share, the son of the deceased female will take 1 share, the daughter of the deceased female will take 1 share. (Equal distribution.) If the son has already died before the deceased female (i.e., a pre deceased son), the son’s share (the share which he would have received if he had been alive) shall be given to his sons and his daughters (equally.) This type of distribution of property is called as per stripes distribution. If the daughter has already died before the deceased female (i.e., a pre deceased daughter), the daughter’s share (the share which she would have received if she Page 7 of 9i Notes by Anuradha Kumay Asst. Professor SNDT Law School, Mumbaj had been alive) shall be given to her sons and her daughters (equally.) This type Of distribution of property is called as per stripes distribution. Page 8 of 9Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai Joint tenancy and Tenancy in common Joint tenancy ai n F aoe a tenancy-in-common are examples of co-ownership. A s concurrent ownership, possession and enjoyment of roperty. i property. Concurrent ownership means that the property is owned by more than one owner. more than one person owns a property and is has happened by way ample, A owns 50% of ts have one and the Joint tenancy means that each owner has an equal share in the property. Th of the same conveyance at the same time. For ex the home and B owns 50% of the home. Joint tenant possession of the property. curvivorship. If any one joint to the surviving tenants and ion. joint tenancy In case of Mitakshara 1956 provides for tenancy- same interest and undivided feature of joint tenancy is Si asses over by way of suces The primary tenant dies, the entire property Pt not to the deceased tenant’s het Ancient Hindu law provided for coparcenary. But the Hindu Succession Act, in-common and not joint tenancy- Tenancy-in-common means that more than one person owns a property but have different shares or jnterests in the property obtained under different conveyances at different times. For example, A owns 32% of the home, B owns 40% and C owns 28% of the home. A tenancy-in- n be broken- t buys out the other tenants, d and the proceeds are distributed amongst the common cai ¥ if'any one tenan V ifthe property is so owners. ¢ survivorship. In_fenancy-in- hare of a deceased tenant does not pass Over vomis by way of survivorship, but it will tained in his will or to his legal heirs ‘Tenaney-in-common have no rights 0 e interest or SI common, th to the remainin; surviving ten: ‘pass on as per the provisions com as per the rules of intestate succession. Page 9 0f9Poof dustedhn kunt FAMILY LAW II Q.6 Situational questions or there may be short notes. Any | will be asked. (Students must be prepared for both) 1)Who is a Hindu?) 2 marks Answer- A Hindu means- > Any person who is a Hindu by birth; » Any person who is a Hindu by religion; (i.e. converts to Hinduism) > Any person who is a Jain, Buddhist or Sikh by religion; > Persons belonging to Brahmo and Arya Samaj; > Illegitimate children (where both parents are Hindus); > Illegitimate children (where one parent is a non-Hindu, but the children were brought up as Hindus); > Any other person who is not a Muslim, Christian, Parsi or Jew by religion, 2) Types of families— Short note, 20 marks, 2 marks each | 3) Ancestral property and Separate Property — 2marks, Short note 4) Partition - 20 marks, 2marks each ( Eg:- Who can ask for partition, Who can claim share in partition under the Schools of Hindu Law) 5) Partition — Short note ( Meaning of partition and modes of partition) 6) Adoption under the Hindu Adoptions and Maintenance Act, 1956 — 20 marks, Short note( Requisites of a valid adoption- S.6 to $.11)q Who is a concubine/ Who is Hace) 2marks Answer- A concubine or mistress is‘a woman who cohabits with a man to whom she is not legally married. She is generally given an inferior position in the society as compared to a lawful wife. Today, a concubine does not enjoy any legal right to claim maintenance from the property of the man with whom she is cohabiting. sf What is polygamy-4nd pol ust) 2 marks ‘Answer- Polygamy involves a“marriage wherein a party has more than 2 spouses. Polygamy can be classified into Polygny and Polyandry. Polygny means a man has more than 2 wives living at the same time. Polyandry means a woman has more than 2 husbands living at the same time, 9 Avvhat is bigamy? 2 marks nswer- Bigarty is a form of marriage wherein a party to the marriage already has a spouse living at the time of marriage. In bigamy, a person has 2 spouses living at the same time. 10) Judicial Separation under the Hindu Law- 2 marks, Short note A1)Different sources of Hindu Law - Short note, 20 marks 2 marks 12) Who is a posthumous cl Answer- A posthumous child is a child who is born subsequent to the death of his/her father @maweteer. A posthumous child inherits as a heir if he/she is born alive following a gestation period that shows that the child was conceived before the death of his/her father who died intestate.13)Maintenance of wife under the Hindu Adoptions and Maintenance Act, 1956- (S.18, 19) and 20 marks Maintenance of Dependants under the Hindu Adoptions and Maintenance Act, 1956- (S.21, 22, 23, 25) cols of Hindu Law - Short note _-14) Mitakshara and Dayabhaga Sch 15) What is Mitakshara Coparcenary/ Dayabhaga Coparcenary- 2 marks 7 4 Yo 2 6) What succession) unobstructed property- 2 marks 17)General rules of Succession and Disqualification of heirs — 20 marks (S. 6, 8, 9, 10, 11) 18) Powers of a Natural Guardian and Testamentary Guardian -20 marks (S. 6, 7, 8, 9, 10, 11, 13) 20 Sanskritisation, Urbanisation, Industrialisation........(Any1) Short note 21 Grounds of divorce under Hindu Law - Short note [Only S.13(1)] (Mibakohous School Crpescennay - Tiadifonel school subesche-prphasis on ( Notthorn, Souttein, Neslery ongeabial propery / "yim, 4 Takis) Bane a) a " j D schuel [om peicenony ee, Eaaslemn Vey mating joel ane 7m) 1 Ieee (aera__——- rn - Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai CUSTOMARY PRACTICES AND STATE REGULATION SATI The term sati means the Hindu practice of widow burning or the burning of the living widow with the corpse of her husband. In Sanskrit, the word sati is derived as a feminine noun from sat, which means goodness, virtue, truth. The word sati thus means a good and virtuous woman, or a true, loyal and dedicated wife. The marital status of a woman stood out as a predominant phase in her entire life and her relation with her husband was regarded as the most important aspect of her life. However, when the term sati is applied to the widow and used in this context, it means a woman who sacrifices herself on her husband's funeral pyre as a token of her love and devotion to her husband. A sensational sati took place in September 1987, in a village in India’s North western state of Rajasthan, when an eighteen- year old woman, Roop Kanwar who was 18 years, died in the funeral pyre of her 24 year-old husband, apparently as an act of exemplary devotion to her husband and to a Hindu practice which was supposedly regarded as sacred by custom. The couple had been married for less than a year. A photograph of the funeral shows a smiling Roop, decorated in her wedding outfit and holding on to her husband’s body as the flames rise around her. The picture was widely distributed all over Rajasthan to prove the triumphant survival of an ancient tradition- namely, the voluntary choice of self immolation as the highest wifely duty, one that ensured the wife the ultimate accolade of sati, a wife wholly dedicated to her husband. After Roop’s death, which was Page 1 of 20Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai witnessed by thousands of worshipful supporters, including a large numbers of women chanting Roop’s praise, she was virtually blessed by those who organized the event. It was, they claimed, an entirely voluntary act and one that reiterated the ancient values of Hindu society and rediscovered the power of spiritual and physical self-sacrifice that, in their view, is at the core of the Hindu religion and elevates it above all others. Following this incident many articles and books appeared, and many conferences addressed the controversial issue of sati, Anti -sati groups have focused not merely on the cruelty of sati as a physical act but they have focused even more on the institutionalized suppression of women. Feminist writers in particular have reminded us that revolt is an obvious human response to sati, along with anger and grief. One hundred and seventy five years after it was abolished by William Bentinck, sati continues to be a reality in parts of rural India. Bentinck decided to introduce a law to ban this evil on account of the unacceptable rise in sati in his province. In the 10 years between 1815 and 1825, the figure had doubled to 639 deaths by burning. He was certainly under pressure from the constant entreaties of missionaries and encouraged to action by the sea change being wrought amongst an influential section of Hindus led by Raja Ram Mohan Roy's Brahmo Samaj. Lord William Bentinck passed the Bengal Sati Regulation Act, 1829 on December 4% after assuming the governorship of Bengal. The regulation was clear, concise and plain in its condemnation of Sati, declaring it illegal and punishable by the criminal courts. Madras and then Page 2 of 20,Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai Bombay followed suit with their own legislations banning Sati. Slowly local rulers who came under the yoke of the British also passed legislations against Sati in conformity with the British regulations, The Commission of Sati (Prevention) Act 1987 This Act substituted the various other legislations that had been operative in different parts of the country. This is a central law that sought not only to prevent and punish the commission of the act itself, but also to make any glorification of the act of sati an offence. There are provisions in the Act to take action against such criminal occurrences either for financial or political purposes. Specifically, the Act makes a criminal offence, equivalent to murder, the abetment or encouragement of a Sati or an attempted Sati. According to Section 2 (1) (c) of the Commission of Sati (Prevention) Act 1987, Sati means the burning or burying alive of any widow along with the_body of her dec ii ‘ith anything or _article_associated with husband or such _relative, or the burning o1 ‘ing alive of ith the body of an, of her relatives. Such burning or burying may either be voluntary or otherwise. Punishment for offences relating to Sati Section 3- Attempt to commit sati- Whoever attempts to commit sati and does any act towards such commission shall be punishable with Page 3 of 20Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai imprisonment for a term which may ext 1 r with fine o1 cite, 'y extend up to 1 year o1 ie or The person committi ii . mmitting sati is herself js liable to prosecution for attempted suicide, Section 4- tof I f any person commits sati, whoever abets the Commission of Such ati, / either directly or indirectly, shall be Punishable with death or imprisonment for life and shall also be liable to fine. For the Purposes of this Section, any of the following acts or the like shall also be deemed to be an abetment, namely: (a) any inducement to a widow or woman to get her burnt or buried alive along with the body of her deceased husband or w ith any other relative or with any article, object or thing associated with the husband or such relative, irrespective of whether she is in a fit state of mind or is labouring under a state of intoxication or stupefaction or other cause impeding the exercise of her free will; (b) making a widow or woman believe that the commission of sati would result in some spiritual benefit to her or her deceased husband or relative or the general well being of the family; (©) encouraging a widow or woman to remain fixed in her resolve to commit sati and thus instigating her to commit sati; (4) participating in any procession in connection with the commission of sati or aiding the widow or woman in her decision to commit sati by taking her along with the body of her deceased husband or relative to the cremation or burial ground; Page 4 of 20 i“—_—_—e be anueadhe Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai (e) being present at the place where sati is committed as an active Participant to such commission or to any ceremony connected with it; (f) preventing or obstructing the widow or woman from saving herself from being burnt or buried alive; (g) obstructing, or interfering with, the poli ice in the discharge of its duties of taking any steps to prevent the commissi ion of sati, Section 5- Glorification of sati- It is defined as © the observation of any ceremonies or the taking out of processions in Connection with the incidence or practice of sati; * the support, justification or propagation of the practice; the arrangement of or Participation of any function to eulogies a Person committing sati; the creation of a trust or fund or collection of donations for the Purpose ofa temple or any other structure with a view to perpetuate or honour the memory of a person committing sat The punishment for glorification of Sati is imprisonment for a term of minimum 1 year but which may extend up to 7 years and with fine of minimum Rs. 5000 but which may extend up to Rs. 30,000. Section 6- Power to prohibit certain acts- Where the Collector or the District Magistrate is of the opinion that sati or any abetment thereof is being, or is about to be committed, he may, by order, prohibit the doing of any act towards the commission of sati by any person in any area or areas specified in the order. Page 5 of 20SSSR SOROS ER ORORESECERSRSSREREROROR SESS SEIRC SESE OROOREESEES Pe Notes by Anuradha Kumar > Asst. Professor SNDT Law School, Mumbai ion 7- Power to remove certain temples or other structures- The State Government may, if it is satisfied that in that any temple or other structure which has been in existence for not less than twenty years, any form of worship or the performance of any ceremony is carried on with a view to perpetuate the honour of or to preserve the memory of, any person in respect of whom sati has been committed, by order, direct the removal of. such temple or other structure, ‘ection 9- Trial of offences under this Act * All offences under this Act shall be triable only by a Special Court constituted under this section. ¢ The State Government sh: notification in_t) fficial ette, stitute or more Special ial of offences under this Act and every Special Court shall exercise jurisdiction in respect of the whole or such part of the State as may be specified in the notification. * A Special Court shall be presided over by a judge to be appointed by the State Government with the concurrence of the Chief Justice of the High Court. All such cases are to be tried without delay, there being required reasons to be furnished if trials are adjourned beyond the next day. For every Special Court, the State Government shall appoint a person to be a Special Public Prosecutor. Page 6 of 20Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai Section 16- Burden of proof Where any person is prosecuted of an offence under Sec. 4, the burden of proving that he had not committed the offence under the said section shall be on him. The enactment of the Commission of Sati (Prevention) Act 1987 is a good step taken by the Legislature but, the mere enactment of the law is not enough. The acquittal of all accused involved in Roop Kanwar Sati case by atrial court of Rajasthan in spite of clear evidences has made a question mark on the success of the Commission of Sati (Prevention) Act,1987. Not only this, the trial court took a very long period of approximately 9 years to deliver its verdict, in spite of their being clear provisions for early proceedings under Section 12 (3) of the Act. Section 12(3) lays down that in every inquiry or trial, the proceedings shall be held as expeditiously as possible and, in particular, where the examination of witnesses has begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, and if any Special Court finds the adjournment of the same beyond the following date to be necessary, it shall record its reasons for doing so. The Act unfortunately does not take into consideration two important facts: The first is that the widow is a victim of her social environment and pressures, but the Act treats her as a criminal. The second is that funds for the glorification of sati are often donated not by individuals but by corporate entities for publicity purposes or tax evasions. Page 7 of 20Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai i in simi sati, the However, prior to the enactment of this Act, in similar cases of icide under accused were held liable for the offence of abetment of suicid Section 306 of the Indian Penal Code. Im Gaurav Jain v. Union of India (AIR 1997 SC3021), the Supreme Court has given comprehensive instructions to the government for the rescue and rehabilitation of the fallen women and their children, For better rehabilitation, it is Necessary to provide them with dignity of person, means of livelihood and socio-economic empowerment. Economic rehabilitation is one of the most important factors that can prevent such practice. It is also necessary to enroll all these persons in re-socialization programmes that Provide vocational training and psychotherapy. Page 8 of 20 \ 7EE EES SS Notes by Anuradha Kumar Asst, Professor SNDT Law School, Mumbai Dowry Dowry is a custom which has turned into a social evil, The concept of equality among marital relationship is toppled by the custom. Moreover human dignity of women is questioned through this custom. Women who have not enough money or Property are the worst sufferers. Most of them are denied marital life or right to choose appropriate spouse. Justice is denied to the females and the custom is beneficial to male. The word ‘dowry’ is almost synonymous with Indian women's oppression under patriarchal systems, It has been a short cut for indicating low status for women. The rising instances of "dowry deaths” indicate the low value of women and the high cost of their marriages, making women a liability for their natal families and a source of wealth for their marital families. There is ample evidence that the phenomenon of dowry is expanding, spreading to communities where it had never existed. An APPROVED marriage among Hindus has always been considered a kanyadan. The Dharmashastra also lay down that the meritorious act of kanyadan is not complete till the bridegroom was given a dakshina. The act of kanyadan consisted of the father gifting his daughter to a bridegroom after decking her with costly garments and honouring her by presents of jewels. We need not doubt that then the vardakshina was given out of love and affection and its quantum varied in accordance with the financial Position of the bride. It was given voluntarily. It also appears to be clear that ornaments, clothes, cash and other properties given to the bride were also given voluntarily and constituted her separate property. They were given to her as a sort of security and provided her financial protection in adverse circumstances. This aspect of the Hindu marriage, ie. gifts to the Page 9 of 20by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai Notes bride later on assumed the frightening name of dowry, for the obtaining of which coercion and, Occasionally, force began to be used, and ultimately most Hindu marriages became a bargain. In the course of time dowry became a widespread social evil, and has now assumed menacing proportions, Surprisingly, it has spread to other communities which traditionally were not taking dowry. Cases have come to public notice where brides, on account of their failure to bring the Promised or expected dowry, have been beaten up, starved for days together, locked up in dingy Tooms, tortured strangulated or burnt al surprising is that the spre social evil of dowry; physically and mentally, ive or led to commit suicide. What is most ‘ead of education has not helped in curbing the rather the educated youth has become more demanding as he, along with his Parents wants to recover every rupee spent by him and his family. With a view to eradicating the rampant social evil of dowry from the Indian Society, the Parliament, in 1961, passed the Dowry Prohibition Act which applies not only to Hindus but also to all the members of other communities, The Act however did not Prove effective and the evil of dowry continued to reign supreme. Several Indian states amended the Act of 1961 with a view to strengthen it. But this did not succeed to curb the dowry menace. The Joint Parliamentary Committee opined that the failure of the dowry Prohibition law was due to two Teasons, viz,, firstly, the Act excluded all Presents (whether given in cash or kind) from the definition of dowry, unless given in consideration of marriage. It is almost impossible to Prove that gifts or presents given at, before or after the marriage were in consideration of marriage. This is so because no giver of the Present will Page 10 of 20Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai ever come forward to say that it was in consideration of marriage, as giving of dowry is as much an offence as taking it; and secondly, the Act had no effective enforcement instrumentality. No court can take cognizance of a dowry offence except on a complaint made by a person within one year of the date of its commission. It was unrealistic to expect the bride, her parents or other relations to lodge a complaint. The parents are usually the victims of dowry. They are unwilling (and certainly reluctant) to come forward because of their apprehension that it may lead to victimization of their daughter. The Joint Parliamentary Committee made some recommendations with a view to giving more power to the law. Parliament accepted some of the recommendations which were incorporated in the Dowry Prohibition (Amendment) Act 1984. of the Dowry Prohi yn At Any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person; at or before or any time after the marriage in connection with the marriage of the said parties. Mahr or dower which a Muslim husband is required to settle on his wife as an integral part of marriage continues to be excluded from the definition of dowry. Page 11 of 20———_———s—s=D Asst. Professor NDT Law School, Mumbai nder Section ji Ss UI Taking or giving of dowry or its abetment remains offences 3 of the Act even after the amendment. after the commencement of this he shall be and with Section 3 lays down that If any person, Act, gives or takes or abets the givii punishable with imprisonment for a term of minimum 5 years, fine of minimum Rs. 15,000 or the amount of the value of such dowry, whichever is more. Nothing mentioned above shall apply to- a. Presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf). b. Presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf). Provided that such presents are entered in a list maintained in accordance with the rules made under this Act. Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given. Section 4 lays down that if any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, any dowry, he shall be punishable with imprisonment for a term of minimum 6 months, but which may extend up to 2 years and with fine which may extend up to Rs. 10,000. Page 12 of 20Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai Under the original Act the punishment for these offences was mild, but it has now been enhanced. The Joint Committee opined that the giver of the dowry should not be treated as an offender as he is more a victim than an offender, and, further, when the giver is considered to be as much an offender as the taker, the prosecution of both taker or demander of dowry becomes difficult. In the words of the committee: The parents do not give dowry out of their free will but are compelled to do so. Further, when both the giver and taker are punishable, no giver can be expected to come forward to make a complaint. It is a unique law which considers the commission of the act as well as the person against whom the act is committed as offenders. How can the punishment of the offender succeed if along with him the victim is also to be punished? Section 4A provides for ban on advertisement - (a) If any person offers through any advertisement in any newspaper, periodical, journal or through any other media, any share in his property or of any money or both as a share in any business or other interest as consideration for the marriage of his son or daughter or any other relatives. or (b)If any person prints or publishes or circulates any advertisement referred to in clause (a), he shall be punishable with imprisonment for a term of minimum 6 months, but which may extend up to 5 years, or with fine which may extend up to Rs. 15,000. Page 13 of 20s by Anuradha Kumar a Asst. Professor SNDT Law School, Mumbai aA ing of dow Section 5 states that any agreement for the giving or taking of dowry shall be void, Section 7 deals with Cognizance of dowry offences. It states that- (@) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act; (b) No court shall take Cognizance of an offence under this Act except “pon— (i) its own knowledge ora Police report of the facts which constitute such offence, or (ti) a complaint by the person aggrieved by the offence or a Parent or other relative of such Person, or by any recognized welfare institution or Organization (inserted by the 1984 Dowry Prohibition Amendment Act); (It shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorized by this Act on any person convicted of an offence under this Act. Section 8, however, states that the dowry offences under this Act shall be cognizable for the purposes of investigation. This is a welcome provision. In cases of non-cognizable offences, the police make an investigation only when a complaint is lodged. But now the police have the power to initiate an investigation, and if it comes to the conclusion that an offence has been committed it can approach the court. The Act lays down that no Person accused of a dowry offence can be arrested without a warrant or an order of the first class magistrate. offen this Act is non-bailab non-co} indab Page 14 of 20,Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai The provision that a complaint can be filed by a social organization or institution is inserted by the Dowry Prohibition (Amendment) Act, 1984. The fact of the matter is that practically no prosecution of any offender could take place under the original Act as neither the aggrieved Party nor his parents or relations would come forward to lodge a complaint to the magistrate or to the police, so as to avoid any complications, particularly as the welfare of the bride was involved. They apprehended that regardless of whether the offender would be punished or not, the victimization of the bride would begin. This is the relevancy of conferring a power of lodging complaint on welfare organizations. However, with a view to preventing abuse of the provision—may be anybody might rush to lodge a complaint on the slightest suspicion or prejudice that a dowry offence has been committed—the power to lodge the complaint has been conferred only on recognized welfare organizations or institutions. Under the original Act, no cognizance of the offence could be taken by a istrate_in the event of the complaint being made one after commission of the offence, Probably, the framers of the Act did not realize that offences relating to dowry are of a totally different nature; they are not like ordinary offences of theft, extortion or dacoity. The fact of the matter is that no one is likely to come forward to lodge a complaint immediately after the commission of the offence. Such offences are brought to light after a long period of marriage, when continual harassment and torture of the bride compel her to take into confidence her parents, relatives or a friend and expose her husband and in-laws. The amending Act has removed this limitation. Now a complaint can be made at any time after commission of the offence. But, of course, if it is lodged after considerable delay, the court may Page 15 of 20Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai hot entertain the complaint unless reasonable explanation is given for the reason of delay. ‘on officers have been appointed under S. 8B of this Ac to ensure that there is a Proper and effective enforcement agency which can intervene whenever necessary and avert dowry tragedies by helping the dowry victims, as well as to help others in enforcement of the Provisions of the Act. The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act. Every Dowry Prohibition Officer shall exercise and perform following powers and functions:- (a) To see that the Provisions of this Act are complied with; (6) To prevent, as far as Possible, the taking or abetting the taking of, or the demanding of, dowry; (© To collect such evidence as may be necessaty for the prosecution of Persons committing offences under the Act; and (@) To perform such additional functions as may be assigned to him by the State Government, or as may be specified in the rules made under this Act. The State Government may, by notification in the Official Gazette, confer such powers of a police officer as may be specified in the notification on the Dowry Prohibition Officer who shall exercise such powers subject to such limitations and conditions as may be specified by rules made under this Act These officers would also render all Possible aid and advice to persons subjected to the demand of dowry or to those who are tortured or otherwise harassed for not bringing proper dowry. Page 16 of 20, VSNotes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai Dowry is a deep-rooted evil and legislation alone cannot eradicate it Legislation can only help the social movement for the eradication of dowry- We may here recall the words of Jawaharlal Lai Nehru: Legislation cannot by itself normally solve deep-rooted social problems. One has to approach them in other way too, but legislation is necessary and essential, so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion which is being formed to be give it a certain shape. Page 17 of 20Vv Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai ive in relationshi Live in relationship is an arrangement wherein 2 people are not married to each other, but they live together like husband and wife on a long term or permanent basis. The parties to a live in relationship are called as live in Partners and not husband and wife, In a live in relationship, the parties cohabit with each other without the legal and social sanction of marriage. Live in relationship is nota socially approved relationship. However, in the recent times, it has received legal support and protection by way of judicial Precedents, 1) Badri Prasad V. . Director of Consoli i 978) - In this case, the Supreme Court legitimized a 50 year long li couple. 2) Payal Sharma Vs. Nari Niketan (2001) - The Allahabad High Court held that 2 adults can stay together ve in relationship of a T without marriage. It is not illegal. 3) Khusboo Vs. Kanniammal (2010) - The Supreme Court held that live in relationship falls within the ambit and Scope of Article 21 of the Constitution of India. 4) Vidyadhari Vs. $1 kranabai (2008) - The Supreme Court held that children born out of a live in relationship are legitimate and they are “legal heirs.” Page 18 of 20,Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai Concubinage Concubinage means cohabitation between a man and a woman without the sanction of a lawful marriage. A . : fen is not A concubine or mistress is a woman who cohabits with a man who is no! her husband. She is given an inferior position in the society and she is not regarded as the wife of the man with who she cohabits. Page 19 of 20Child marriage Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai (Provided in the hand written notes) Page 20 of 20,Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai Important case laws relating to Uniform Civil Code (UCC) 1) Secularism- 42" Constitutional Amendment Act, 1976- S.R. Bommai Vs. UOI (1994)- The S.C. held that in the matters of State, religion has no place 2) Freedom of religion- Article 25 of the Constitution of India 3) Article 44 of the Constitution of India Concept of adoption under the UCC 1) Juvenile Justice Act, 1986 2) Juvenile Justice (Care and Protection of Children) Act, 2000- S. 41 (Adoption) ¢ Juveniles in conflict with law and juveniles in need of care and protection 3) Juvenile Justice (Care and Protection) Act, 2015- Enacted after the Nirbhaya Delhi gang rape case in December 2012 (Juveniles between 16 and 18 years can be tried as adults for heinous offences) e JJB’s and CWC’s (Juvenile Justice Boards and Child Welfare Committees) * Adoption (S. 2(2)), foster care, sponsorship, © 8. 67- Constitution of State Adoption Resource Authority (SARA) by the State Government S. 68- Constitution of Central Adoption Resource Authority (CARA) by the Central Government © Specialised Adoption Agency by the State Government 4) Shabnam Hashmi Vs. UOI- 2005- Indian social activist and a human rights campaigner- Prospective parents, irrespective of their religious background, are free to access the provisions of the JJ (Care and Protection) Act, 2000 for adoption of children after following the procedure prescribed. Page 1 of 4Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai Concept of maintenance under the UCC 1) 1985- Shah Bano case (Mohd. Ahmed Khan Vs. Shah Bano Begum) * Maintenance petition in the Indore before the JMFC w/s 125 of CrPC. The Indore JMFC granted her Rs. 25 per month as maintenance * She filed a revisional application in the M.P. High Court- enhanced the amount of maintenance from Rs. 25 p/m to Rs. 180 p/m. * Mohd. Ahmed Khan appealed before the S.C.- Maintenance of wife only during Iddat period according to the Shariat Act, 1937. The All-India Muslim Personal Law Board supported Mohd. Ahmed Khan. * The S.C. upheld the decision of the M.P. H.C.- S. 125 of CrPC is applicable to all Indian citizens irrespective of their religions. * Rajiv Gandhi Govt enacted the Muslim Women (Protection on Divorce) Act, 1986. * This Act diluted the S.C. judgment and provided for maintenance only during the Iddat period. 2) 2001- Daniel Latifi Vs. UOI- Daniel Latifi challenged the constitutionality of the Muslim Women (Protection on Divorce) Act, 1986. The S.C. took a middle path and held that a Muslim husband is bound to make reasonable and fair provisions for the future of his divorced wife and it does not confine to the Iddat period only (till she remarries.) The Constitutional validity of the Act was upheld. 3) 2014- Shamim Bano Vs. Ashraf Khan- Muslim women u/s 125 of CrPC are entitled not only to Mahr, ornaments, and maintenance under Section 3 of the Muslim Women (Protection on Divorce) Act, 1986, but also to maintenance for the post- Iddat period. 4) 2017- Shayara Bano Vs. UOI- Triple talaq case- the S.C. declared the custom of “Talaq-e-Biddat” popularly known as “Triple Talag” which is one of the three male initiated divorce in the Muslim community, the other two being “Talaq ahasan” and “Talaq hasan” unconstitutional by a majority of 3:2 ratio, Page 2 of 4 | yNotes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai Concept of monogamy under the UCC 1995- Sarla Mudgal Vs. UOJ- NGO named Kalyani was headed by Ms. Sarla Mudgal for the needy and distressed women. Petitioner 1- Sarla Mudgal and Petitioner 2 was Meena Mathur Meena Mathur filed a complaint against her husband Jitendra Mathur u/s 494 of IPC for converting to Islam and marrying another woman. Geeta Rani and Sushmita Gosh joined. The Court held that the first marriage would have to be dissolved under the Hindu Marriage Act, 1955. The man’s first marriage would therefore, still be valid and under Hindu law, his second marriage, solemnized after his conversion, would be illegal under Section 494 of the Indian Penal Code, 1860. The Sarla Mudgal judgment has issued no directions for the implementations of Uniform Civil Code, though Justice Kuldeep Singh has requested the government to look at the Article 44 of the Constitution. Page 3 of 4Notes by Anuradha Kumar Asst. Professor SNDT Law School, Mumbai Concept of guardianship under the UCC 1999- Gita Hariharan Vs. Reserve Bank of India- The S.C. held that both the father and the mother are the natural guardians of a Hindu minor. Whoever is capable of and available for taking care of the minor shall be preferred. If the father is incapable or if he fails to act as the natural guardian of the minor or if he refuses to act as the natural guardian of the minor, then the mother can be the natural guardian. Goa Civil Code Goa is the only State in India with a Uniform Civil Code. Goa has a common personal law. Hindus, Muslims, Christians, Parsis and Jews living in Goa are all bound by the same law relating to marriage, divorce, adoption, maintenance, guardianship, inheritance. Many BJP ruled States like Himachal Pradesh, Uttarakhand, Gujarat, Uttar Pradesh have expressed their intentions to implement the UCC in their States. Uttarakhand recently passed the Uniform Civil Code of Uttarakhand, 2024. The Code will apply to all the persons in Uttarakhand irrespective of their religions. Page 4 of 4