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FAMILY LAW AND SUCCESSION (LAWS OTHER T H A N H I N D U AND M U S L I M LAWS) Tahir T
Mahmood*
INTRODUCTION
Scope of the survey
IN THE introduction to last year's maiden survey of this subject we had made an attempt to define its scope.1 The list of codified and uncodified laws falling in the area of family law and succession (laws other than Hindu and Muslim laws), furnished there,2 is on a reconsideration found incomplete. Personal laws of Christians^ Parsis and Jews and family law enactments applicable to all Indians alike are, in fact, not the only laws that come within the purview of this survey. There are some regional laws which, too, fall in its domain. In the Union Territory of Goa, Daman and Diu uniform laws of family and succession, found partly in the Portuguese Civil Code and partly in the Marriage and Divorce Decrees of 1910 still apply to all inhabitants of the territory. In their application to Goan Hindus these laws are, of course, subjected to a law protecting certain Hindu usages relating to marriage rites and adoption.3 The protected usages are, however, insignificant and do not detract much from the uniformity of the Goan family law. In the Union territory of Pondicherry, the French Civil Code continues to apply to 'Renoncants' in the areas of marriage, divorce, minority and guardianship. Renoncants are those inhabitants of Pondicherry who were before its liberation governed by the French law and to whom continued application of that law was guaranteed by the Treaty of Cession. Neither the central Hindu law enactments of 1955-56 nor any of the statutes relating to other communities apply to the Renoncants, though they may be Hindu, Muslim or Christian by religion.4 The Luso-Indian family and succession laws of Goa as well as the Franco-Indian family and succession laws of Pondicherry, referred to * a 2 3
LL.M., Ph. D., Reader, Faculty of Law, Delhi University. See XIV A.S.I L. 163-65 (1978). Ibid. Decree on the Usages of Gentile Hindus, 1880. There are similar decrees also in force in Daman and Diu. 4 See, e.g., s. 2 (2-A) of the Hindu Succession Act, 1956.
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above, belong to the area of this survey. These should be added to the laws listed in the last year's survey.5 Statistics for the survey year
No decided case on the uniform family law of either Goa or Pondicherry is, however, found in the law reports of 1979. This year there have been twenty-three reported cases. With the exception of one (which relates to a local Kerala law), all these cases have been decided under central statutes. Notably, the largest number of cases have during this year been decided under the Indian Divorce Act, 1869, (seven cases) and most of them reflect the need for drastic changes in its provisions. The Indian Succession Act, 1925, has had its usually large share of cases. Out of the six cases of the year under this Act two have been decided by the Supreme Court. Other enactments to which judicial decisions of 1979 in the area of the present survey belong to are : (/) Guardians and Wards Act, 1890 (three cases); (//) Special Marriage Act, 1954 (two cases); (Hi) Maintenance law under the Code of Criminal Procedure, 1973 (four cases); and (iv) Travancore Christian Succession Act, 1092 (one case). H
INDIAN DIVORCE ACT, 1869
Scope of the Act
The most notable judicial decision of the year under survey, relating to the Indian Divorce Act, is to be found in an order passed by Chawla J. in Pramilla v. Rajnish Kumar* which dealt with an application under order 7, rule 11 and section 151 of the Code of Civil Procedure, 1908. The order raises very pertinent questions affecting the entire gamut of the Indian matrimonial laws. Strained relations between a couple, admittedly married in 1972 according to Arya Samaj rites, gave rise to this thoughtinspiring ruling. The wife, claiming to be a Christian, applied for judicial separation under the Indian Divorce Act. The husband's objection was that theirs being an Arya Samaj marriage, the petition was not maintainable under the Act which applied exclusively to Christian marriages. After a rather inconclusive discussion of the legal position, the judge dismissed the application of the husband, holding as follows : Nowhere in the Act is it required that the marriage, in respect of which relief is sought* should have been solemnized in any particular 5
Supra note 1. * A.I.R. 1979 Pel. 78. www.ili.ac.in
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form. It is sufficient that one of the parties is a Christian when the petition is filed.7 He, however, made no order as to costs and pointed out that he was not doing so "having regard to the fact that the law was not entirely clear on the point raised and the decided cases furnished no clear-cut answer". 8 The observations made by the judge reflect the sad state of the family law of Indian Christians that is now more than a century old and needs a thorough revision. Both the Christian Marriage Act, 1872 and the Indian Divorce Act, 1869, claim application to cases where only one of the parties is a Christian (besides those where both are followers of Christianity). This was understandable in 1869-1872 when as a part of their missionary activities the British tried to keep the scope of these laws extremely wide. However, now when on the soil of independent India there are in force modern laws regulating Hindu, Muslim and civil marriages—all of which are much more progressive than those time-worn laws of the Christians— applicability of the latter to inter-religious marriages between Christians and non-Christians is quite unreasonable. If nothing else it, at least, creates plurality of laws. True, the remedy for this "lies in the hands of the Legislature" as the judge pointed out.9 But we strongly feel that the applicability of the Christian laws can, by a process of judicial interpretation, be kept confined to those oases where at least one of the parties is a Christian at the time of marriage. It is true that the Indian Divorce Act does not refer to any particular form of marriage. But now this Act is no more than the divorce-supplement to the Christian Marriage Act.10 As such its application should be confined to marriages that took place under the latter Act (i.e., marriages at least one party to which was a Christian at the time of marriage). Keeping its door wide open for those marriages which took place under Hindu or Muslim law, where one party to which later unilaterally embraced Christianity, is bound to militate against the progressive laws of these communities. The judge in the case under review referred to section 7 of the Act and its history.11 This section directs the Indian courts to "act and give relief" under the Act in conformity with the "principles and rules" followed by the English matrimonial courts. 12 Though, in fact, retention of this provision in the Act until now is indeed obnoxious its proviso (saying that the directive of the section shall not deprive the courts of jurisdiction in cases where both parties are Christian at the time the cause of action arises)13 can indeed be used to keep the scope of the Act limited. 7
8 9
Id. at 79.
M a t 81.
Ibid. Since 1954 it does not apply to any case of civil marriage. 11 Supra note 6 at 80. 12 Sees. 7 of the Apt. *3 Idf, proviso, 10
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This is what the respondent-husband in the case wanted the judge to do. The judge, however, did not agree. He did remark that "the proviso does show that in a case to which it applied (/. e., where both parties are Christians at the time the cause of action arises) relief can be had under the Indian Divorce Act in respect of any kind of marriage",14 but stopped at that. A very natural interpretation of the proviso will be that where one party is a Christian at the time the cause of action arises (but was a non-Christian at the time of marriage) while the other party has all along been anon-Christian—the directive of section 7 will apply and may take a case like the one under review outside the jurisdiction of the court acting under the Act. The judge, however, thought otherwise. Accepting the husband's plea and holding that for the petitioner-wife the remedy lay under the Hindu Marriage Act, 1955, (and not under the Indian Divorce Act) would, we are convinced, not have resulted in a denial of justice in any sehse, while by doing so a rather bad precedent for an unreasonable extension of the scope of the outdated Indian Divorce Act could have been avoided. There is nothing in the Hindu Marriage Act to suggest that only that Hindu marriage can be dissolved under its provisions, both parties to which remain Hindu until the institution of proceedings.15 Relief in cases of cruelty
Another important judgment of the year, highlighting the backward state of the matrimonial law of the Indian Christians is found in R. Hemlatha v. R. Satyanandam™ a case decided by a Special Bench of the Andhra Pradesh High Court. A Christian wife applied to the district court of Warangal for divorce under the Indian Divorce Act. The grounds alleged by her were cruelty and desertion. Overlooking the fact that on these grounds only judicial separation (and not divorce) could be granted under the said Act, the district court passed a decree of divorce. When the matter was placed before the bench for confirmation of the decree, it pointed out the mistake committed by the court below and modified its decree in order to grant judicial separation to the petitioner-wife (instead of divorce). In its order the bench made important observations. It looked "somewhat strange" to the bench that "in the second half of the twentieth century" the law of the Indian Christians did not allow divorce on the ground of cruelty simpliciter or adultery only, while on the one hand the English law (on which the Indian Divorce Act was based in 1869) had moved forward a great deal and, on the other, rest of the Indian laws of divorce had made considerable progress.17 14
Supra note 6 at 80 (explanation in parenthesis by this author). SeeT. Mahmood, A Studv of the Hindu Marriage Act, 1955 (1980), notes under s. 13. « A . I . R . 1979 A, P. 1.
15
17 Id. at 2.
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The bench also noted with regret the sex based discrimination under the Indian Divorce Act18 in the matter of adultery as a ground for matrimonial relief. In this respect the bench observed : It appears to us to be incongruous to allow such discriminatory provisions to remain in the Statute book after the coming into force of the Indian Constitution guaranteeing equal protection of laws to every citizen and prohibiting discrimination on the ground of Noting that suggestions for suitable amendments in the Indian Divorce Act were made by the Supreme Court in 196820 and by a Special Bench of the Madras High Court two years later,21 the bench expressed "surprise" on the inaction of the legislature up to date.22 These judicial observations must act as an eye-opener for the law makers and leaders of the Christian community alike. Matrimonial offences and divorce
Under the Indian Divorce Act, every decree of divorce is subject to confirmation by the High Court.23 This provision is a distinctive feature of the divorce law of the Indian Christians. During the year under survey four divorce decrees passed under the Act on the ground of various kinds of adultery came up for confirmation, one each before the High Courts of Madhya Pradesh,24 Rajasthan,25 Punjab and Haryana,26 and Madras.27 In the Madhya Pradesh case, Lalit v. Lavina,2* the decision given by a Full Bench of the High Court confirmed the decree of divorce granted by the court of the district judge at Jabalpur to a Christian husband whose wife was found guilty of adultery. Pointing out in its judgment the latest trend in handling matrimonial cases, the bench observed : Previously the view was that the matrimonial offences have to be proved beyond reasonable doubt but recently the view has been modified and it has been held that petitioner is only required to prove his case by preponderance of probabilities and the degree of probability depends on the gravity of the offence.29 18
S e e s . 10 of the Act. Supra note 16 at 2. 20 S.C Seharaj v. C. Mary, (1968) 1 M.L.J. 289. 21 T.M. Bashiam v. M. Victor, A.I.R. 1970 Mad- 12. 22 Ibid. 23 S. 17. 24 Lalit v. Lavina, A.I.R. 1979 M.P. 70. 25 B.D. Charles v. Nora Benjamin, A.I.R. 1979 Raj. 156. so Eheena v. Gopol, A.LR. 1979 P. & H . 4. 27 Christinamary v. Vijay SiddhraJ, A J . R . 1979 Mad. 100. 28 Supra note 24. 29 Id. at 73. 19
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The bench also dwelt upon the nature of evidence in cases of adultery. 30 The most notable feature of this case was that the allegation of adultery on the ground for the relief was brought in by the petitioner-husband by an amendment of the petition during its pendency and the High Court held that this was quite permissible if the ground (adultery) did in fact exist at the time of filing of the petition. 31 In the Rajasthan case, B.D. Charles v. Nora Benjamin?2 too, a decree of divorce was granted in favour of a husband on the ground of his wife's proven adultery Confirming the lower court's decree, a Special Bench of the High Court discussed the nature of proof required in cases of adultery 33 and application of the bar of dela} to such cases.34 The distinguishing feature of this case was that the district court had also ordered the respondent-wife's adulterer to pay damages to the petitioner-husband under section 34 of the Indian Divorce Act. This provision of the Act is, again, unique and has no parallel in any other divorce law of India. The High Court, however, set aside the direction awarding damages on the plea that the injury resulting from the adulterer's conduct had not been sufficiently proved by the husband in terms of section 34 of the Act. 35 The third case, Elveena v. Gopal™ was decided by a Full Bench of the Punjab and Haryana High Court. Unlike the Madhya Pradesh and Rajasthan cases in which husbands were the decree holders, in this case a Christian wife had obtained a decree of divorce against her husband on the ground of 'adultery and cruelty'. The difference between the rights of men and women in this respect (only men are entitled to sue for divorce on the ground of mere adultery)37 had been aptly pointed out by the Andhra Pradesh High Court in another case decided during the year.38 The Full Bench at Chandigarh, however, did not go into that important aspect of the law and simply confirmed the decree nisi.29 The fourth case for the confirmation of a decree of divorce granted by the lower court, Christinamary v. Vijay Siddhraj™ came up before a Special Bench of the High Court of Madras. Here a Christian wife had obtained from the district court in Pudukottai a decree of divorce against her husband on the ground of 'bigamy and adultery'. While both bigamy and adultery were proved, there was objection to confirmation of the decree on the technical ground of the absence of the pleas of 'last residence' and so Ibid. Ibid. 32 Supra note 25. 33 Id. at 159. 34 Id. at 160-61. 35 Id. at 162. 36 Supra note 26. 37 See s. 10, Indian Divorce Act, 1869. 38 Supra note 16. 39 Supra note 26 at 5. *Q Supra note 27. 31
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'no-collusion' in the petition as initially presented. Explaining the true nature of these legal requirements,41 the bench confirmed the decree.42 Impoteney and nullity of marriage
Manjula v. Suresh** an interesting decision unprecedented in this country, has been handed down under the Indian Divorce Act by a Special Bench of the Delhi High Court. The said Act, though titled as "Divorce Act" includes also provisions relating to nullity of marriage.44 Under one of these provisions either party to a marriage may seek a decree of nullity in respect of the marriage on the ground, inter alia, that the other party was impotent "at the time of the marriage and at the time of the institution of the suit".45 In the case under reference a Christian wife applied for a decree of nullity under this provision. The marriage had taken place on 19 October, 1972 and a child was born to her after the expiry of a few days over nine months. The wife claimed that because of physical deficiency the husband had never been able to consummate the marriage, though she also asserted thai he was the father of the child. As the husband did not defend the case, it was tried and decided ex parte. On a review of the evidence the court ruled that the child was the result of "fecundation ab extra"" and that the allegation of non-consummation due to husband's impotence was true.46 Authority for the proposition that this was possible was found by the court in three English cases47 and in the celebrated works of Modi48 and Tolstoy.49 The decree of nullity granted by the lower court, as desired by the petitioner-wife, was eventually confirmed.50 Ill
SPECIAL MARRIAGE ACT, 1954
Cruelty and divorce
Two cases have been decided under the Special Marriage Act, 1954. Both involved divorce petitions, one based on the ground of cruelty and the other on that of desertion—filed under section 27 of the Act. One of those was decided by the High Court of Madhya Pradesh and the other 4i Id. at 102-103. 42 Ibid. 43 A . I R . 1979 Del. 93. 44 Ch. IV, ss. 18-21. 45 S. 19 (1). An identical provision was found until recently in the Hindu Marriage Act, 1955. It has now been significantly reformed. See this author's work, supra note 15, notes under s. 12. & Supra note 43 at 96. *7 Clarke v. Clarke, (1943) 2 All E.R. 540 and two more cases. Id. at 94-95. ^Medical Jurisprudence andToxicology 306 (1977). 49 Law and Practice of Divorce 114(1967). 50 Supra note 43 at 96.
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by the Orissa High Court. The marriage in question was dissolved in both cases—in one of those at the instance of the wife and in the other as desired by the husband. 51 In the Madhya Pradesh case, A P. Marry v. K.G. Raghavan,52 the parties had contracted an inter-religious civil marriage, the husband being a Tamilian Christian and the wife a Keralite Hindu. They had a happy married life for about eight years whereafter they began quarrelling. Exactly a month before their twelfth wedding anniversary—while they had become parents of four children—an ugly incident happened in which the wife received serious injuries allegedly at the hands of the husband. On recovery, she applied for divorce on the ground of cruelty. In the lower court the parties accused each other of infidelity, provocation, violence and baseless confrontation. The court dismissed all allegations of the husband and, as regards the wife's accusations, found only one instance of "cruelty" against her— reflected in the afore-mentioned ugly incident. No divorce was granted on the plea that one single instance of cruelty did not entitle the aggrieved party to break up the marriage. The wife, then, went in appeal. Before the High Court the question for decision was whether a single act of violence could satisfy the standard of cruelty under section 27 (1) (d) of the Special Marriage Act. The judges hearing the appeal examined the language of the statutory provision, the recent amendment of the Hindu Marriage Act on that point (which made the law of cruelty uniform under both Acts) and some judicial precedents under the latter Act. They answered the question in the affirmative with a caveat that the single act of violence (leading to divorce) must be of a "grievous and inexcusable nature". 53 They set aside the lower court's decree and granted a divorce.54 "Has treated with cruelty" is, of course, different from "has been treating cruelly". The former expression, used in the law of civil marriages,'15 does not imply a recurring conduct. Relief on the ground of cruelty has to be given on a realistic—not a statistical—appraisal of the aggrieved spouse's grievance and the guilty spouse's conduct. Desertion and divorce
The Orissa High Court in Dhrubajyoti v. Dila5e decided an appeal against the decision of the lower court which had refused divorce on the ground of desertion claimed under section 27 (1) (d) of the Special Marriage Act. The parties were, according to the appellate judgment, married "according to the prevailing custom in their community". 57 It is not clear 61 62
See below.
A.I.R. 1979 M.P. 40. 53 Id. at 44. 54 Ibid. 55 S. 27 (1) (d), Special Marriage Act, 195456 A.I.R. 1979 Ori. 93. 57 Id. at 94.
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from the judgment how the relief was sought and granted under the Special Marriage Act which applied only to civil marriages. We presume that the marriage in question was later registered under that Act. In the case under reference the wife had deserted the husband at the beginning of the second year of their marriage. Despite his repeated attempts she did not rejoin him—not even after the birth of a daughter who was fondly wanted by her father's family. For reasons unknown, after four years of desertion, she visited her husband's place in his absence, stayed there for some days but left it just before his arrival. Due to this development the district court refused to grant divorce on the ground of desertion. On appeal the High Court, however, reversed the decision and dissolved the marriage. On a review of the well-established law of desertion, the court held that the wife's "sudden appearance" at the husband's house during his absence and disappearance before his return could not be construed as an intention on her part to rejoin him.58 IV MAINTENANCE LAW UNDER THE CODE OF CRIMINAL PROCEDURE, 1973 Cr.P.C. vs. persona] laws
Of the four cases decided under sections 125-127 of the Code of Criminal Procedure, 1973, selected for the present survey, three are Supreme Court decisions and the fourth is a Full Bench ruling of the Kerala High Court. These sections of the new Code lay down a law enabling criminal courts to pass orders for maintenance. The relationship of this law with the civil laws of maintenance has been a controversial matter ever since the enforcement of the new Code. Two cases of this year—one of the three Supreme Court decisions and the Full Bench Kerala ruling—relate to this controversy. The most significant decision under the afore-said provisions of the Code, reported during 1979, is the Supreme Court ruling in the famous Bai Tahira's case.59 It was commented upon by the learned author of last year's survey of Muslim law since, actually decided on October 1978, it had already become a cause celebre and was of special relevance to Muslim law.60 Agreeing with his comments in principle, we wish to add as follows. Under section 127 (3) (b) of the Code, a maintenance order passed in favour of a divorced wife "shall" be cancelled if under the customary or personal law applicable to the parties, "the whole of the sum payable on such divorce" has been paid to her by the husband (whether before or after the passing of the order). Subjecting the text of this provision to ss Id- at 95. 59 Bai Tahirav. Ali Hussain, A.LR. 1979 S.C. 362. 60 See supra note 1 at 139-162.
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"teleological interpretation" and "sociological decoding", 61 the Supreme Court read in between its lines the requirement of reasonable adequacy of the sum payable (and paid) under personal or customary law. Unless there was a "rational relation between the sum paid and its potential as provision for maintenance", thecourt held, section 127 (3) (b) would not apply.62 In view of how Muslim law relating to marriage and divorce is being actually understood and applied in this country, the ruling must be appreciated. However, that law is certainly being misunderstood and misapplied. The very concept of marriage in Islam has become distorted. It was this distorted view that was given expression to when it was observed in an old Madras decision that on marriage a Muslim daughter "passes over to her husband's family" and that "then there is no obligation on the members of her natural family to maintain her, even if she is divorced'."6J The fact is that in Muslim law neither there is any inter-familial transfer of the girl on marriage, nor is the family of her birth wholly absolved from maintaining her in all circumstances. During her iddat a divorced girl is, of course, to be maintained by her (former) husband (who must also pay her mahr in full if not already paid). After the expiry of iddat, the liability to maintain her, if she is a destitute, reverts to her parents' family and for this purpose she is treated as an unmarried girl. Of course, Islam directs the divorcing husband to pay the unpaid mahr ('stipulated' or 'proper' as the case may be) and the maintenance of iddat to the wife, but it does not keep him tagged to her for the rest of his life. Keeping him free to look after his own liabilities, it makes alternative arrangements for the divorced wife (in case she needs it even after the payment of mahr and iddat maintenance;. The author, in one of his recent works has explained all this quoting authentic Islamic treatises."* If Muslim husbands, Muslim wives and Muslim parents can show by their conduct a correct understanding of Islamic concepts of marriage and divorce, and if the law of Islam can be wholly and properly applied in this country, the courts will not be constrained to interpret section 127 (3) (b) of the Cr. P.C. with a "compassionate expansion of sense", which the Supreme Court admittedly did in the case under reference.65 Kamalakshiv. Shankaran,CQ a case with similar facts and raising the same issue, was decided by a Full Bench of the Kerala High Court at about the same time. The only difference was that here the parties were Ezhavas. Their marriage had been dissolved under the Travancore Ezhava Act, (3 of 1100) and "reasonable compensation" payable on divorce under that Act had been paid by the husband. The bench held that section 127 (3) (b) 6i Supra note 59 at 365. 62 Id. at 366. fi 3 Pakrichi v. Kunhacha, (1911) 36 Mad. 385 {emphasis 6
4 T . M a h m o o d , The Muslim 65 Supra n o t e 59 at 363. 68 A . I . R . 1979 K e r . 116.
Law
of India
added).
184 ( 1 9 8 0 ) .
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applied and no more maintenance could be ordered.67 It did not examine the adequacy of the payment made in accordance with the personal law. Notably, the bench held that section 127 (3) did not merely enable the courts to cancel an order already made, it authorised them also not to pass an order at all if its provisions were otherwise applicable.68 This indeed is an important ruling based on sound logic. The bench also overruled69 an earlier Division Bench decision of the court to the effect that section 127 (3) (b) applied only if the wife had agreed not to claim any maintenance after the payment of the sum payable under personal law.70 Old Code vs. the new Code
Under the old Criminal Procedure Code, 1898, a person could be ordered to pay maintenance to his child unable to maintain itself. The Code did not define "child", but it was judicially settled that the term included a major child.71 On the contrary, under the new Criminal Procedure Code of 1973 only a minor child can seek a maintenance order. As a transitory provision the new Code laid down that all orders made under the old Code in force immediately before the commencement of the new Code shall be deemed to have been made under the "corresponding provision" of the new Code. Is the provision of the new Code relating to maintenance of children (which is confined to minor children) a "corresponding provision" in respect of that of the old Code (that applied also to the major children)? If not, then would an order of maintenance passed under the old Code in favour of a major child automatically lapse on the commencement of the new Code? These questions came up for consideration in Jagir Singh v. Rambir Singh72 before the Supreme Court in an appeal from Punjab. The court answered the the first question in the affirmative.73 As regards the second question, it held that the order passed under the old Code could be cancelled on a proper application made under the new Code, but would not automatically lapse (despite the discrepancy between the concerned provisions of the two Codes).74 During 1955-60 the High Courts of Madras and Andhra Pradesh had held that an order for maintenance in favour of a deserted wife passed under section 488 of the old Code would lapse on the resumption of cohabitation between the parties and if on a subsequent re-separation the 67 id. at 119. 68 Ibid. 69 ™ 71 72 73 74
Ibid. Kunhi Moyin v. Pathumma, 1976 K . L . T . 8 7 . Sec Nanak v. C.K. AggarwaltA.LR. 1970 S.C. 446. A . I . R . 1979 S . C . 3 8 1 . Id. at 3 8 5 . Id. at 386.
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wife again wanted to get maintenance she had to move the court afresh.75 Much earlier in undivided India the High Court of Lahore had given a contrary ruling.76 What is the position under the corresponding provision of the new Criminal Procedure Code? The Supreme Court considered this question in Bhupinder v. Daljit Kaur.17 Agreeing with the aforesaid Lahore ruling,78 the court held that an order under the new Code could be cancelled under any provision of the new Code itself, but it would not automatically lapse due to "cohabitation in interregnum" or a mutual compromise.79 V GUARDIANS AND WARDS ACT, 1890 Father's right
The three High Court decisions under Guardians and Wards Act, 1890 reported during the year under survey, reiterated and applied well-established principles that are adhered to in the administration and application of various provisions of the Act. Two of those are Rajasthan High Court decisions and the third was decided by the High Court of Bombay. The first Rajasthan decision, Snehlata v. Mahendra,80 explained the position of the father as the natural guardian of the child under section 19 of the Guardians and Wards Act. It pointed out that unless found unfit the father must be declared guardian of the child.81 So did the High Court of Bombay in Mohammad Shafiv. ShaminBano?2 an almost identical case. In the Rajasthan case the parties were Hindu while the Bombay decision was given in the case of a Muslim child. The Guardians and Wards Act, being a uniform law, applies to both communities as also to all other Indians. It directs the courts to be guided in their decisions by the welfare of the child to be ascertained "consistently with the law to which the minor is subject".83 Both Hindu and Muslim laws regard the father as the first natural guardian of his children. So does the Guardians and Wards Act. All those points were explained in the Rajasthan and Bombay decisions under reference. As an additional point the Rajasthan case also clarified that if the child is in the custody of a third person it is not necessary to implead that person in the father's application for declaration as guardian. 84 75 A.I.R. 1960 M a d . 615; 1955 A n d h . L.T, (Cri.) 244. 76 A.I.R. 1932 L a h . 15.
77 A.I.R. 1979 S.C. 442. 78 Supra note 76. 79 Sw/>ranote77at443. 80 A.I.R. 1979 R a j . 29. 81 Id. at 34. 82 A J . R . 1979 Bom. 156, 83 S. 17 (1). s< Supra note 80 at 32.
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Jurisdiction
In TilakRaj v. Asha,*5 the second decision of the Rajasthan High Court under the Act, jurisdiction of a court to entertain an application for custody was disputed. In the court below a lady district judge had held that since the child in question did not "ordinarily reside" in her court's jurisdiction, she could not entertain and decide on the application, for its custody. As the applicant went in appeal, the High Court confirmed the correctness of the lower court's decision in view of the provision of section 9 (2) of the Act.86 VI INDIAN SUCCESSION ACT, 1925 Non-availability of will and presumption of revocation
Durga Parshad v. Debi Charan*7 a Supreme Court decision of the year under survey reads like a comprehensive essay on the question whether a will duly executed by the testator but not traceable after his death can be presumed to have been revoked by him. An old woman, disgusted with her adopted son, had executed a will in favour of another person. When she died only a draft of the will was found, the original will could not be traced, though its proper execution was proved beyond doubt. The adopted son claimed that the will should be presumed to have been revoked by the testatrix by destruction before her death. The lower court agreed. On appeal, a single judge of the Delhi High Court reversed the decision, but his own decision was also reversed, and the lower court's order restored, by a Division Bench of the High Court. In the final appeal before the Supreme Court the learned single judge's decision prevailed.88 Section 70 of the Indian Succession Act, 1925, provides how a will can be revoked and states that no will shall be revoked otherwise. Destroying the will with an intention to revoke it amounts to revocation. Obviously, a will which is not traceable at the testator's death has not necessarily been destroyed by him, it might have been stolen or destroyed by an interested person. It depends on the circumstances of each case whether a presumption of revocation (by destroying) can be drawn. In this country not everybody who excutcs a will keeps it in the bank. English and Indian case law explaining those points were surveyed at length in the Supreme Court decision under reference.89 VII ASCERTAINMENT OF "HEIRS"—LAW APPLICABLE When a testator by his will gives a life interest in some property in 85 AJ.R. 1979 Raj. 128. *>e Id. at 129. 87 AJ.R. 1979 S.C. 145. 88 Id. at 154. 89 14. at 151-153.
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favour of some named person and adds that after him (the said named person) the property would go to his (testator's) "heirs"—-how are the heirs of the testator to be ascertained ? Which of the following laws of inheritance will be applied to ascertain the testator's heirs : (a) that (b) that (c) that the testator
in force when he executed the will, applicable when he died, or operative at the time of the death of the person in whose favour created a life-estate?
This important legal question—which gains great significance in respect of wills of Hindus whose law of inheritance has been fast changing since 1928,fi0 came up for decision before the Supreme Court in N. Krishnammal v. R. Ekambaram?1 A Hindu testator had executed his will in 1927 under which he had given his property in defined shares to his three sons and said that in the event of any of his sons dying issueless, his (son's) share would pass on to "my heirs" (i.e., testator's heirs). The testator died in 1928. One of his sons died issueless in 1957, survived by his widow who claimed a share in the property. Was the son's widow one of "my heirs" spoken of by the testator? According to his personal law applicable during 1927-28, she was not; but under the Hindu personal law in force at the time of the ceasing of the testamentary life interest she was such an heir. The Supreme Court construed the will according to the principles of interpretation of wills enunciated in the Indian Succession Act. It held that the expression "my heirs" in a will must be deemed to be meaning "my legal heirs" (i. e., my heirs under the law for the time being applicable) unless the will clearly indicated otherwise.92 Finding no contrary indication in the will in question, the court held that it would be presumed that the testator had died soon after the ceasing of the life interest created by him and his "heirs" (to take the property next) would be ascertained by the law then applicable. Since the life interest in question had ceased by the holder's death in 1957, that law was the Hindu Succession Act, 1956, under which the son's widow was an heir of the testator though he had died far back in 1928. The will was given effect accordingly.93 Perhaps, one could argue that a Hindu testator in 1928 could not have imagined what a drastic change in the concept of "heirs" was in store for the community and that for this reason it should be presumed that while speaking of "heirs'* the testator had a particular group or circle of relations in mind so that anybody outside that group or circle could not have been meant by him by the expression "my heirs". If the testator's 90
It was amended first during 1928-29, next in 1937, and then drastically changed in 1956. See, generally, T, Mahmood, A Study of the Hindu Succession Act 1956 (1980). 91 A.I.R. 1979 S.C. 1298. 92 Id.'&t 1301. 93 u. at 1303. www.ili.ac.in
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probable thinking is to be the guiding factor in the construction of wills this argument should be acceptable; but if legal expressions (like "heir") found in the wills are to be construed literally, the Supreme Court decision94 is appreciable. Settlement-deed—-undue influence
The third Supreme Court decision under the Indian Succession Act, A.M. Pichamuthuv. B.T. Selvaraj,^ is a routine ruling having not much significance. A deed of settlement, executed by a respectable woman, settling property on her niece in preference to her other relatives, was alleged by the latter to have been executed under undue influence. Finding that the executant was a woman of "character and strong will", the court ruled that "in the absence of better or other evidence", undue influence could not be inferred from the mere fact that the niece had befriended her aunt (the executant) and taken care of her in time of need.96 Bequeathed property transferred—effect on will
In undivided India an owner of property situate in the former North West Frontier Province executed a will under which his second wife was, after his death, to take a life estate in his property. After her death the property had to be taken by the grandchildren of his first wife and the children of the second wife in equal shares, per stirpes. After the partition of the country the second wife claimed compensation (on the basis of the will) under the Evacuee Property Act, and got it. Out of the compensation money she purchased some property in India. On her death, grandchildren of the testator's first wife demanded that the will be executed against the property purchased by her out of the compensation money. The dispute finally came up for decision in Chamanlal v. Kundanlal?7 before Kapur J. of the High Court of Delhi. The judge rejected their claim holding that as the property in question "has been transformed and suffered metamorphosis due to circumstances completely outside the control of the parties, the will#could not be given effect to in their favour". 98 The reasoning of the judge, it is submitted, is not appealing. He neither cited any decided case nor attempted to justify his verdict under any provision of the Indian Succession Act. Merely referring to certain passages from Halsbury's Laws of England,00 he ruled that "the will is silent °4 Supra note 91. 9= A J . R . 1979 S.C 1431. 9 6 Ibid. 97 A.I.R. 1979 Del. 240. w Id. at 243, 245.
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regarding compensation and it cannot be made operative qua the compensation".100 We fail to understand how compensation under the Evacuee Property Act can be deemed to be a benefit derived from the corpus of the property different from the corpus. The learned single judge's decision cannot be regarded as palpaply wrong; but the true legal position of the case, we are convinced, has room for a deeper reconsideration. Attesting witnesses
Under section 63 of the Indian Succession Act, a will is to be attested by at least two witnesses. The provision does not require that the attesting witnesses and the testator must be residents of the same place. Nor does the Act suggest that both the attesting witnesses must be produced to testify to the will, if disputed. These aspects of the law of execution of wills were explained by the Punjab and Haryana High Court in Atma Ram v. Parsini.191 In this case only one of the attesting witnesses of the will in question was produced, and he belonged to a village different from that of the testator. The court held that his statement could not be discarded merely since he belonged to another village.102 Non-production of the other attesting witness, the court added, was not a ground sufficient for upsetting thefindingsof fact recorded by the court below.103 "It is for the Court of fact to believe one attesting witness and to uphold the will or to disbelieve all the attesting witnesses and hold the will to be not a genuine document", ruled Mittal J. who delivered the judgment.104 Probate—letters of administration
An applicant for probate under the Indian Succession Act, must ask for it in respect of the entire will. Similarly, a person applying under the Act for letters of administration in respect of a deceased person's estate must ask for it regarding the entire estate. Neither probate nor letters of administration can be asked for in respect of part of a will or fragment of an estate. These points of law have been explained in several cases including one decided in 1970 by the High Court of Andhra Pradesh.105 In In re Veera Jiwatram Chugani,106 Ramachandra Rao J, of the same High ioo Id. at 245. i°i A.I.R 1979 P. & H. 234. 102 Id. at 235. 103 Id. at 235-36. 104 Id. at 235.
105 Govardhan v. Govardhan, AJ.R. 1?70 A.P. 109, W A I.R. 1979 A,P. 145. www.ili.ac.in
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Andhra case and applied the law as
TRAVANCORE CHRISTIAN SUCCESSION ACT, 1092
Widow's estate In the State of Kerala, the law of inheritance laid down under the Indian Succession Act does not apply to Christians governed by the Travancore Christian Succession Act, (Act 2 of 1092), which is still in force. The former Act can replace the latter only by virtue of the provision in this regard found in the Special Marriage Act, 1954.107 Ordinarily, the Travancore Act represents the personal law of Christians governed by it and regulates succession to their property. Under the Travancore Christian Succession Act, the widow of a deceased person takes only a life estate in his property. Though under Hindu law (which is the parent law in regard to the concept of widow's limited estate) widow's estates were enlarged into absolute estates twenty-four years ago, 108 the Christian succession law in Kerala remains unamended in this respect till this day. Joseph v. Joseph,109 a case under that law, involving such an estate, came up for decision before Chandrashekhara Menon J. of the High Court of Kerala. His judgment in the case reads like a brilliant essay on a comparative view of widow's estate and reversioners'rights under the traditional Hindu law and the statutory succession law of Travancore Christians. His verdict is that the rights of the widow are weaker and the position of the reversioners stronger under the Travancore Christian Succession Act than under Hindu law.110 Customary succession laws of non-Hindus in Kerala In respect of the Hindu law of property and succession the State of Kerala is most advanced among the constituent units of the Indian Republic. In 1975 it enacted the Hindu Joint Family (Abolition) Act putting an end to all Hindu joint families, both matrilineal and patrilineal, and whether governed by Mitakshara or Malabar law. Certain groups of Christians and Muslims in this state had, long ago, adopted the Hindu customary law. The laws so adopted by them with or without changes were later codified. Among the statutes so enacted were the Travancore Christian Succession Act arid the Mapilla Marumak107 Sees. 21 of that Act. los See s. 14, Hindu Succession Act, 1956. 1WAI.R. 1979 Ker. 2J9, uo/rf. at 221-222. www.ili.ac.in
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kattyam Act, and these are still in force.111 In a bid to keep at an arm's length from the personal laws of the minorities, the state has not touched these laws of the Christians and the Muslims though in no sense these are part of their religion-based laws. Custodians of the state authority in Kerala as well as leaders of the communities concerned must try to correctly understand the nature of these laws which deserve immediate repeal.
" i Mapillas are Muslims otherwise governed by the Shafi'i school of Islamic law. During the year under survey a case has been decided by the Kerala High Court also under the Mapilla Marumajdcattayam Act, gee V. A, Mammen v. ?. Mariyawma^ AJ.R. 1979 Ker. 216, www.ili.ac.in
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Mahmood*
INTRODUCTION
Scope of the survey
IN THE introduction to last year's maiden survey of this subject we had made an attempt to define its scope.1 The list of codified and uncodified laws falling in the area of family law and succession (laws other than Hindu and Muslim laws), furnished there,2 is on a reconsideration found incomplete. Personal laws of Christians^ Parsis and Jews and family law enactments applicable to all Indians alike are, in fact, not the only laws that come within the purview of this survey. There are some regional laws which, too, fall in its domain. In the Union Territory of Goa, Daman and Diu uniform laws of family and succession, found partly in the Portuguese Civil Code and partly in the Marriage and Divorce Decrees of 1910 still apply to all inhabitants of the territory. In their application to Goan Hindus these laws are, of course, subjected to a law protecting certain Hindu usages relating to marriage rites and adoption.3 The protected usages are, however, insignificant and do not detract much from the uniformity of the Goan family law. In the Union territory of Pondicherry, the French Civil Code continues to apply to 'Renoncants' in the areas of marriage, divorce, minority and guardianship. Renoncants are those inhabitants of Pondicherry who were before its liberation governed by the French law and to whom continued application of that law was guaranteed by the Treaty of Cession. Neither the central Hindu law enactments of 1955-56 nor any of the statutes relating to other communities apply to the Renoncants, though they may be Hindu, Muslim or Christian by religion.4 The Luso-Indian family and succession laws of Goa as well as the Franco-Indian family and succession laws of Pondicherry, referred to * a 2 3
LL.M., Ph. D., Reader, Faculty of Law, Delhi University. See XIV A.S.I L. 163-65 (1978). Ibid. Decree on the Usages of Gentile Hindus, 1880. There are similar decrees also in force in Daman and Diu. 4 See, e.g., s. 2 (2-A) of the Hindu Succession Act, 1956.
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above, belong to the area of this survey. These should be added to the laws listed in the last year's survey.5 Statistics for the survey year
No decided case on the uniform family law of either Goa or Pondicherry is, however, found in the law reports of 1979. This year there have been twenty-three reported cases. With the exception of one (which relates to a local Kerala law), all these cases have been decided under central statutes. Notably, the largest number of cases have during this year been decided under the Indian Divorce Act, 1869, (seven cases) and most of them reflect the need for drastic changes in its provisions. The Indian Succession Act, 1925, has had its usually large share of cases. Out of the six cases of the year under this Act two have been decided by the Supreme Court. Other enactments to which judicial decisions of 1979 in the area of the present survey belong to are : (/) Guardians and Wards Act, 1890 (three cases); (//) Special Marriage Act, 1954 (two cases); (Hi) Maintenance law under the Code of Criminal Procedure, 1973 (four cases); and (iv) Travancore Christian Succession Act, 1092 (one case). H
INDIAN DIVORCE ACT, 1869
Scope of the Act
The most notable judicial decision of the year under survey, relating to the Indian Divorce Act, is to be found in an order passed by Chawla J. in Pramilla v. Rajnish Kumar* which dealt with an application under order 7, rule 11 and section 151 of the Code of Civil Procedure, 1908. The order raises very pertinent questions affecting the entire gamut of the Indian matrimonial laws. Strained relations between a couple, admittedly married in 1972 according to Arya Samaj rites, gave rise to this thoughtinspiring ruling. The wife, claiming to be a Christian, applied for judicial separation under the Indian Divorce Act. The husband's objection was that theirs being an Arya Samaj marriage, the petition was not maintainable under the Act which applied exclusively to Christian marriages. After a rather inconclusive discussion of the legal position, the judge dismissed the application of the husband, holding as follows : Nowhere in the Act is it required that the marriage, in respect of which relief is sought* should have been solemnized in any particular 5
Supra note 1. * A.I.R. 1979 Pel. 78. www.ili.ac.in
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form. It is sufficient that one of the parties is a Christian when the petition is filed.7 He, however, made no order as to costs and pointed out that he was not doing so "having regard to the fact that the law was not entirely clear on the point raised and the decided cases furnished no clear-cut answer". 8 The observations made by the judge reflect the sad state of the family law of Indian Christians that is now more than a century old and needs a thorough revision. Both the Christian Marriage Act, 1872 and the Indian Divorce Act, 1869, claim application to cases where only one of the parties is a Christian (besides those where both are followers of Christianity). This was understandable in 1869-1872 when as a part of their missionary activities the British tried to keep the scope of these laws extremely wide. However, now when on the soil of independent India there are in force modern laws regulating Hindu, Muslim and civil marriages—all of which are much more progressive than those time-worn laws of the Christians— applicability of the latter to inter-religious marriages between Christians and non-Christians is quite unreasonable. If nothing else it, at least, creates plurality of laws. True, the remedy for this "lies in the hands of the Legislature" as the judge pointed out.9 But we strongly feel that the applicability of the Christian laws can, by a process of judicial interpretation, be kept confined to those oases where at least one of the parties is a Christian at the time of marriage. It is true that the Indian Divorce Act does not refer to any particular form of marriage. But now this Act is no more than the divorce-supplement to the Christian Marriage Act.10 As such its application should be confined to marriages that took place under the latter Act (i.e., marriages at least one party to which was a Christian at the time of marriage). Keeping its door wide open for those marriages which took place under Hindu or Muslim law, where one party to which later unilaterally embraced Christianity, is bound to militate against the progressive laws of these communities. The judge in the case under review referred to section 7 of the Act and its history.11 This section directs the Indian courts to "act and give relief" under the Act in conformity with the "principles and rules" followed by the English matrimonial courts. 12 Though, in fact, retention of this provision in the Act until now is indeed obnoxious its proviso (saying that the directive of the section shall not deprive the courts of jurisdiction in cases where both parties are Christian at the time the cause of action arises)13 can indeed be used to keep the scope of the Act limited. 7
8 9
Id. at 79.
M a t 81.
Ibid. Since 1954 it does not apply to any case of civil marriage. 11 Supra note 6 at 80. 12 Sees. 7 of the Apt. *3 Idf, proviso, 10
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This is what the respondent-husband in the case wanted the judge to do. The judge, however, did not agree. He did remark that "the proviso does show that in a case to which it applied (/. e., where both parties are Christians at the time the cause of action arises) relief can be had under the Indian Divorce Act in respect of any kind of marriage",14 but stopped at that. A very natural interpretation of the proviso will be that where one party is a Christian at the time the cause of action arises (but was a non-Christian at the time of marriage) while the other party has all along been anon-Christian—the directive of section 7 will apply and may take a case like the one under review outside the jurisdiction of the court acting under the Act. The judge, however, thought otherwise. Accepting the husband's plea and holding that for the petitioner-wife the remedy lay under the Hindu Marriage Act, 1955, (and not under the Indian Divorce Act) would, we are convinced, not have resulted in a denial of justice in any sehse, while by doing so a rather bad precedent for an unreasonable extension of the scope of the outdated Indian Divorce Act could have been avoided. There is nothing in the Hindu Marriage Act to suggest that only that Hindu marriage can be dissolved under its provisions, both parties to which remain Hindu until the institution of proceedings.15 Relief in cases of cruelty
Another important judgment of the year, highlighting the backward state of the matrimonial law of the Indian Christians is found in R. Hemlatha v. R. Satyanandam™ a case decided by a Special Bench of the Andhra Pradesh High Court. A Christian wife applied to the district court of Warangal for divorce under the Indian Divorce Act. The grounds alleged by her were cruelty and desertion. Overlooking the fact that on these grounds only judicial separation (and not divorce) could be granted under the said Act, the district court passed a decree of divorce. When the matter was placed before the bench for confirmation of the decree, it pointed out the mistake committed by the court below and modified its decree in order to grant judicial separation to the petitioner-wife (instead of divorce). In its order the bench made important observations. It looked "somewhat strange" to the bench that "in the second half of the twentieth century" the law of the Indian Christians did not allow divorce on the ground of cruelty simpliciter or adultery only, while on the one hand the English law (on which the Indian Divorce Act was based in 1869) had moved forward a great deal and, on the other, rest of the Indian laws of divorce had made considerable progress.17 14
Supra note 6 at 80 (explanation in parenthesis by this author). SeeT. Mahmood, A Studv of the Hindu Marriage Act, 1955 (1980), notes under s. 13. « A . I . R . 1979 A, P. 1.
15
17 Id. at 2.
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The bench also noted with regret the sex based discrimination under the Indian Divorce Act18 in the matter of adultery as a ground for matrimonial relief. In this respect the bench observed : It appears to us to be incongruous to allow such discriminatory provisions to remain in the Statute book after the coming into force of the Indian Constitution guaranteeing equal protection of laws to every citizen and prohibiting discrimination on the ground of Noting that suggestions for suitable amendments in the Indian Divorce Act were made by the Supreme Court in 196820 and by a Special Bench of the Madras High Court two years later,21 the bench expressed "surprise" on the inaction of the legislature up to date.22 These judicial observations must act as an eye-opener for the law makers and leaders of the Christian community alike. Matrimonial offences and divorce
Under the Indian Divorce Act, every decree of divorce is subject to confirmation by the High Court.23 This provision is a distinctive feature of the divorce law of the Indian Christians. During the year under survey four divorce decrees passed under the Act on the ground of various kinds of adultery came up for confirmation, one each before the High Courts of Madhya Pradesh,24 Rajasthan,25 Punjab and Haryana,26 and Madras.27 In the Madhya Pradesh case, Lalit v. Lavina,2* the decision given by a Full Bench of the High Court confirmed the decree of divorce granted by the court of the district judge at Jabalpur to a Christian husband whose wife was found guilty of adultery. Pointing out in its judgment the latest trend in handling matrimonial cases, the bench observed : Previously the view was that the matrimonial offences have to be proved beyond reasonable doubt but recently the view has been modified and it has been held that petitioner is only required to prove his case by preponderance of probabilities and the degree of probability depends on the gravity of the offence.29 18
S e e s . 10 of the Act. Supra note 16 at 2. 20 S.C Seharaj v. C. Mary, (1968) 1 M.L.J. 289. 21 T.M. Bashiam v. M. Victor, A.I.R. 1970 Mad- 12. 22 Ibid. 23 S. 17. 24 Lalit v. Lavina, A.I.R. 1979 M.P. 70. 25 B.D. Charles v. Nora Benjamin, A.I.R. 1979 Raj. 156. so Eheena v. Gopol, A.LR. 1979 P. & H . 4. 27 Christinamary v. Vijay SiddhraJ, A J . R . 1979 Mad. 100. 28 Supra note 24. 29 Id. at 73. 19
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The bench also dwelt upon the nature of evidence in cases of adultery. 30 The most notable feature of this case was that the allegation of adultery on the ground for the relief was brought in by the petitioner-husband by an amendment of the petition during its pendency and the High Court held that this was quite permissible if the ground (adultery) did in fact exist at the time of filing of the petition. 31 In the Rajasthan case, B.D. Charles v. Nora Benjamin?2 too, a decree of divorce was granted in favour of a husband on the ground of his wife's proven adultery Confirming the lower court's decree, a Special Bench of the High Court discussed the nature of proof required in cases of adultery 33 and application of the bar of dela} to such cases.34 The distinguishing feature of this case was that the district court had also ordered the respondent-wife's adulterer to pay damages to the petitioner-husband under section 34 of the Indian Divorce Act. This provision of the Act is, again, unique and has no parallel in any other divorce law of India. The High Court, however, set aside the direction awarding damages on the plea that the injury resulting from the adulterer's conduct had not been sufficiently proved by the husband in terms of section 34 of the Act. 35 The third case, Elveena v. Gopal™ was decided by a Full Bench of the Punjab and Haryana High Court. Unlike the Madhya Pradesh and Rajasthan cases in which husbands were the decree holders, in this case a Christian wife had obtained a decree of divorce against her husband on the ground of 'adultery and cruelty'. The difference between the rights of men and women in this respect (only men are entitled to sue for divorce on the ground of mere adultery)37 had been aptly pointed out by the Andhra Pradesh High Court in another case decided during the year.38 The Full Bench at Chandigarh, however, did not go into that important aspect of the law and simply confirmed the decree nisi.29 The fourth case for the confirmation of a decree of divorce granted by the lower court, Christinamary v. Vijay Siddhraj™ came up before a Special Bench of the High Court of Madras. Here a Christian wife had obtained from the district court in Pudukottai a decree of divorce against her husband on the ground of 'bigamy and adultery'. While both bigamy and adultery were proved, there was objection to confirmation of the decree on the technical ground of the absence of the pleas of 'last residence' and so Ibid. Ibid. 32 Supra note 25. 33 Id. at 159. 34 Id. at 160-61. 35 Id. at 162. 36 Supra note 26. 37 See s. 10, Indian Divorce Act, 1869. 38 Supra note 16. 39 Supra note 26 at 5. *Q Supra note 27. 31
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'no-collusion' in the petition as initially presented. Explaining the true nature of these legal requirements,41 the bench confirmed the decree.42 Impoteney and nullity of marriage
Manjula v. Suresh** an interesting decision unprecedented in this country, has been handed down under the Indian Divorce Act by a Special Bench of the Delhi High Court. The said Act, though titled as "Divorce Act" includes also provisions relating to nullity of marriage.44 Under one of these provisions either party to a marriage may seek a decree of nullity in respect of the marriage on the ground, inter alia, that the other party was impotent "at the time of the marriage and at the time of the institution of the suit".45 In the case under reference a Christian wife applied for a decree of nullity under this provision. The marriage had taken place on 19 October, 1972 and a child was born to her after the expiry of a few days over nine months. The wife claimed that because of physical deficiency the husband had never been able to consummate the marriage, though she also asserted thai he was the father of the child. As the husband did not defend the case, it was tried and decided ex parte. On a review of the evidence the court ruled that the child was the result of "fecundation ab extra"" and that the allegation of non-consummation due to husband's impotence was true.46 Authority for the proposition that this was possible was found by the court in three English cases47 and in the celebrated works of Modi48 and Tolstoy.49 The decree of nullity granted by the lower court, as desired by the petitioner-wife, was eventually confirmed.50 Ill
SPECIAL MARRIAGE ACT, 1954
Cruelty and divorce
Two cases have been decided under the Special Marriage Act, 1954. Both involved divorce petitions, one based on the ground of cruelty and the other on that of desertion—filed under section 27 of the Act. One of those was decided by the High Court of Madhya Pradesh and the other 4i Id. at 102-103. 42 Ibid. 43 A . I R . 1979 Del. 93. 44 Ch. IV, ss. 18-21. 45 S. 19 (1). An identical provision was found until recently in the Hindu Marriage Act, 1955. It has now been significantly reformed. See this author's work, supra note 15, notes under s. 12. & Supra note 43 at 96. *7 Clarke v. Clarke, (1943) 2 All E.R. 540 and two more cases. Id. at 94-95. ^Medical Jurisprudence andToxicology 306 (1977). 49 Law and Practice of Divorce 114(1967). 50 Supra note 43 at 96.
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by the Orissa High Court. The marriage in question was dissolved in both cases—in one of those at the instance of the wife and in the other as desired by the husband. 51 In the Madhya Pradesh case, A P. Marry v. K.G. Raghavan,52 the parties had contracted an inter-religious civil marriage, the husband being a Tamilian Christian and the wife a Keralite Hindu. They had a happy married life for about eight years whereafter they began quarrelling. Exactly a month before their twelfth wedding anniversary—while they had become parents of four children—an ugly incident happened in which the wife received serious injuries allegedly at the hands of the husband. On recovery, she applied for divorce on the ground of cruelty. In the lower court the parties accused each other of infidelity, provocation, violence and baseless confrontation. The court dismissed all allegations of the husband and, as regards the wife's accusations, found only one instance of "cruelty" against her— reflected in the afore-mentioned ugly incident. No divorce was granted on the plea that one single instance of cruelty did not entitle the aggrieved party to break up the marriage. The wife, then, went in appeal. Before the High Court the question for decision was whether a single act of violence could satisfy the standard of cruelty under section 27 (1) (d) of the Special Marriage Act. The judges hearing the appeal examined the language of the statutory provision, the recent amendment of the Hindu Marriage Act on that point (which made the law of cruelty uniform under both Acts) and some judicial precedents under the latter Act. They answered the question in the affirmative with a caveat that the single act of violence (leading to divorce) must be of a "grievous and inexcusable nature". 53 They set aside the lower court's decree and granted a divorce.54 "Has treated with cruelty" is, of course, different from "has been treating cruelly". The former expression, used in the law of civil marriages,'15 does not imply a recurring conduct. Relief on the ground of cruelty has to be given on a realistic—not a statistical—appraisal of the aggrieved spouse's grievance and the guilty spouse's conduct. Desertion and divorce
The Orissa High Court in Dhrubajyoti v. Dila5e decided an appeal against the decision of the lower court which had refused divorce on the ground of desertion claimed under section 27 (1) (d) of the Special Marriage Act. The parties were, according to the appellate judgment, married "according to the prevailing custom in their community". 57 It is not clear 61 62
See below.
A.I.R. 1979 M.P. 40. 53 Id. at 44. 54 Ibid. 55 S. 27 (1) (d), Special Marriage Act, 195456 A.I.R. 1979 Ori. 93. 57 Id. at 94.
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from the judgment how the relief was sought and granted under the Special Marriage Act which applied only to civil marriages. We presume that the marriage in question was later registered under that Act. In the case under reference the wife had deserted the husband at the beginning of the second year of their marriage. Despite his repeated attempts she did not rejoin him—not even after the birth of a daughter who was fondly wanted by her father's family. For reasons unknown, after four years of desertion, she visited her husband's place in his absence, stayed there for some days but left it just before his arrival. Due to this development the district court refused to grant divorce on the ground of desertion. On appeal the High Court, however, reversed the decision and dissolved the marriage. On a review of the well-established law of desertion, the court held that the wife's "sudden appearance" at the husband's house during his absence and disappearance before his return could not be construed as an intention on her part to rejoin him.58 IV MAINTENANCE LAW UNDER THE CODE OF CRIMINAL PROCEDURE, 1973 Cr.P.C. vs. persona] laws
Of the four cases decided under sections 125-127 of the Code of Criminal Procedure, 1973, selected for the present survey, three are Supreme Court decisions and the fourth is a Full Bench ruling of the Kerala High Court. These sections of the new Code lay down a law enabling criminal courts to pass orders for maintenance. The relationship of this law with the civil laws of maintenance has been a controversial matter ever since the enforcement of the new Code. Two cases of this year—one of the three Supreme Court decisions and the Full Bench Kerala ruling—relate to this controversy. The most significant decision under the afore-said provisions of the Code, reported during 1979, is the Supreme Court ruling in the famous Bai Tahira's case.59 It was commented upon by the learned author of last year's survey of Muslim law since, actually decided on October 1978, it had already become a cause celebre and was of special relevance to Muslim law.60 Agreeing with his comments in principle, we wish to add as follows. Under section 127 (3) (b) of the Code, a maintenance order passed in favour of a divorced wife "shall" be cancelled if under the customary or personal law applicable to the parties, "the whole of the sum payable on such divorce" has been paid to her by the husband (whether before or after the passing of the order). Subjecting the text of this provision to ss Id- at 95. 59 Bai Tahirav. Ali Hussain, A.LR. 1979 S.C. 362. 60 See supra note 1 at 139-162.
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"teleological interpretation" and "sociological decoding", 61 the Supreme Court read in between its lines the requirement of reasonable adequacy of the sum payable (and paid) under personal or customary law. Unless there was a "rational relation between the sum paid and its potential as provision for maintenance", thecourt held, section 127 (3) (b) would not apply.62 In view of how Muslim law relating to marriage and divorce is being actually understood and applied in this country, the ruling must be appreciated. However, that law is certainly being misunderstood and misapplied. The very concept of marriage in Islam has become distorted. It was this distorted view that was given expression to when it was observed in an old Madras decision that on marriage a Muslim daughter "passes over to her husband's family" and that "then there is no obligation on the members of her natural family to maintain her, even if she is divorced'."6J The fact is that in Muslim law neither there is any inter-familial transfer of the girl on marriage, nor is the family of her birth wholly absolved from maintaining her in all circumstances. During her iddat a divorced girl is, of course, to be maintained by her (former) husband (who must also pay her mahr in full if not already paid). After the expiry of iddat, the liability to maintain her, if she is a destitute, reverts to her parents' family and for this purpose she is treated as an unmarried girl. Of course, Islam directs the divorcing husband to pay the unpaid mahr ('stipulated' or 'proper' as the case may be) and the maintenance of iddat to the wife, but it does not keep him tagged to her for the rest of his life. Keeping him free to look after his own liabilities, it makes alternative arrangements for the divorced wife (in case she needs it even after the payment of mahr and iddat maintenance;. The author, in one of his recent works has explained all this quoting authentic Islamic treatises."* If Muslim husbands, Muslim wives and Muslim parents can show by their conduct a correct understanding of Islamic concepts of marriage and divorce, and if the law of Islam can be wholly and properly applied in this country, the courts will not be constrained to interpret section 127 (3) (b) of the Cr. P.C. with a "compassionate expansion of sense", which the Supreme Court admittedly did in the case under reference.65 Kamalakshiv. Shankaran,CQ a case with similar facts and raising the same issue, was decided by a Full Bench of the Kerala High Court at about the same time. The only difference was that here the parties were Ezhavas. Their marriage had been dissolved under the Travancore Ezhava Act, (3 of 1100) and "reasonable compensation" payable on divorce under that Act had been paid by the husband. The bench held that section 127 (3) (b) 6i Supra note 59 at 365. 62 Id. at 366. fi 3 Pakrichi v. Kunhacha, (1911) 36 Mad. 385 {emphasis 6
4 T . M a h m o o d , The Muslim 65 Supra n o t e 59 at 363. 68 A . I . R . 1979 K e r . 116.
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applied and no more maintenance could be ordered.67 It did not examine the adequacy of the payment made in accordance with the personal law. Notably, the bench held that section 127 (3) did not merely enable the courts to cancel an order already made, it authorised them also not to pass an order at all if its provisions were otherwise applicable.68 This indeed is an important ruling based on sound logic. The bench also overruled69 an earlier Division Bench decision of the court to the effect that section 127 (3) (b) applied only if the wife had agreed not to claim any maintenance after the payment of the sum payable under personal law.70 Old Code vs. the new Code
Under the old Criminal Procedure Code, 1898, a person could be ordered to pay maintenance to his child unable to maintain itself. The Code did not define "child", but it was judicially settled that the term included a major child.71 On the contrary, under the new Criminal Procedure Code of 1973 only a minor child can seek a maintenance order. As a transitory provision the new Code laid down that all orders made under the old Code in force immediately before the commencement of the new Code shall be deemed to have been made under the "corresponding provision" of the new Code. Is the provision of the new Code relating to maintenance of children (which is confined to minor children) a "corresponding provision" in respect of that of the old Code (that applied also to the major children)? If not, then would an order of maintenance passed under the old Code in favour of a major child automatically lapse on the commencement of the new Code? These questions came up for consideration in Jagir Singh v. Rambir Singh72 before the Supreme Court in an appeal from Punjab. The court answered the the first question in the affirmative.73 As regards the second question, it held that the order passed under the old Code could be cancelled on a proper application made under the new Code, but would not automatically lapse (despite the discrepancy between the concerned provisions of the two Codes).74 During 1955-60 the High Courts of Madras and Andhra Pradesh had held that an order for maintenance in favour of a deserted wife passed under section 488 of the old Code would lapse on the resumption of cohabitation between the parties and if on a subsequent re-separation the 67 id. at 119. 68 Ibid. 69 ™ 71 72 73 74
Ibid. Kunhi Moyin v. Pathumma, 1976 K . L . T . 8 7 . Sec Nanak v. C.K. AggarwaltA.LR. 1970 S.C. 446. A . I . R . 1979 S . C . 3 8 1 . Id. at 3 8 5 . Id. at 386.
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wife again wanted to get maintenance she had to move the court afresh.75 Much earlier in undivided India the High Court of Lahore had given a contrary ruling.76 What is the position under the corresponding provision of the new Criminal Procedure Code? The Supreme Court considered this question in Bhupinder v. Daljit Kaur.17 Agreeing with the aforesaid Lahore ruling,78 the court held that an order under the new Code could be cancelled under any provision of the new Code itself, but it would not automatically lapse due to "cohabitation in interregnum" or a mutual compromise.79 V GUARDIANS AND WARDS ACT, 1890 Father's right
The three High Court decisions under Guardians and Wards Act, 1890 reported during the year under survey, reiterated and applied well-established principles that are adhered to in the administration and application of various provisions of the Act. Two of those are Rajasthan High Court decisions and the third was decided by the High Court of Bombay. The first Rajasthan decision, Snehlata v. Mahendra,80 explained the position of the father as the natural guardian of the child under section 19 of the Guardians and Wards Act. It pointed out that unless found unfit the father must be declared guardian of the child.81 So did the High Court of Bombay in Mohammad Shafiv. ShaminBano?2 an almost identical case. In the Rajasthan case the parties were Hindu while the Bombay decision was given in the case of a Muslim child. The Guardians and Wards Act, being a uniform law, applies to both communities as also to all other Indians. It directs the courts to be guided in their decisions by the welfare of the child to be ascertained "consistently with the law to which the minor is subject".83 Both Hindu and Muslim laws regard the father as the first natural guardian of his children. So does the Guardians and Wards Act. All those points were explained in the Rajasthan and Bombay decisions under reference. As an additional point the Rajasthan case also clarified that if the child is in the custody of a third person it is not necessary to implead that person in the father's application for declaration as guardian. 84 75 A.I.R. 1960 M a d . 615; 1955 A n d h . L.T, (Cri.) 244. 76 A.I.R. 1932 L a h . 15.
77 A.I.R. 1979 S.C. 442. 78 Supra note 76. 79 Sw/>ranote77at443. 80 A.I.R. 1979 R a j . 29. 81 Id. at 34. 82 A J . R . 1979 Bom. 156, 83 S. 17 (1). s< Supra note 80 at 32.
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Jurisdiction
In TilakRaj v. Asha,*5 the second decision of the Rajasthan High Court under the Act, jurisdiction of a court to entertain an application for custody was disputed. In the court below a lady district judge had held that since the child in question did not "ordinarily reside" in her court's jurisdiction, she could not entertain and decide on the application, for its custody. As the applicant went in appeal, the High Court confirmed the correctness of the lower court's decision in view of the provision of section 9 (2) of the Act.86 VI INDIAN SUCCESSION ACT, 1925 Non-availability of will and presumption of revocation
Durga Parshad v. Debi Charan*7 a Supreme Court decision of the year under survey reads like a comprehensive essay on the question whether a will duly executed by the testator but not traceable after his death can be presumed to have been revoked by him. An old woman, disgusted with her adopted son, had executed a will in favour of another person. When she died only a draft of the will was found, the original will could not be traced, though its proper execution was proved beyond doubt. The adopted son claimed that the will should be presumed to have been revoked by the testatrix by destruction before her death. The lower court agreed. On appeal, a single judge of the Delhi High Court reversed the decision, but his own decision was also reversed, and the lower court's order restored, by a Division Bench of the High Court. In the final appeal before the Supreme Court the learned single judge's decision prevailed.88 Section 70 of the Indian Succession Act, 1925, provides how a will can be revoked and states that no will shall be revoked otherwise. Destroying the will with an intention to revoke it amounts to revocation. Obviously, a will which is not traceable at the testator's death has not necessarily been destroyed by him, it might have been stolen or destroyed by an interested person. It depends on the circumstances of each case whether a presumption of revocation (by destroying) can be drawn. In this country not everybody who excutcs a will keeps it in the bank. English and Indian case law explaining those points were surveyed at length in the Supreme Court decision under reference.89 VII ASCERTAINMENT OF "HEIRS"—LAW APPLICABLE When a testator by his will gives a life interest in some property in 85 AJ.R. 1979 Raj. 128. *>e Id. at 129. 87 AJ.R. 1979 S.C. 145. 88 Id. at 154. 89 14. at 151-153.
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favour of some named person and adds that after him (the said named person) the property would go to his (testator's) "heirs"—-how are the heirs of the testator to be ascertained ? Which of the following laws of inheritance will be applied to ascertain the testator's heirs : (a) that (b) that (c) that the testator
in force when he executed the will, applicable when he died, or operative at the time of the death of the person in whose favour created a life-estate?
This important legal question—which gains great significance in respect of wills of Hindus whose law of inheritance has been fast changing since 1928,fi0 came up for decision before the Supreme Court in N. Krishnammal v. R. Ekambaram?1 A Hindu testator had executed his will in 1927 under which he had given his property in defined shares to his three sons and said that in the event of any of his sons dying issueless, his (son's) share would pass on to "my heirs" (i.e., testator's heirs). The testator died in 1928. One of his sons died issueless in 1957, survived by his widow who claimed a share in the property. Was the son's widow one of "my heirs" spoken of by the testator? According to his personal law applicable during 1927-28, she was not; but under the Hindu personal law in force at the time of the ceasing of the testamentary life interest she was such an heir. The Supreme Court construed the will according to the principles of interpretation of wills enunciated in the Indian Succession Act. It held that the expression "my heirs" in a will must be deemed to be meaning "my legal heirs" (i. e., my heirs under the law for the time being applicable) unless the will clearly indicated otherwise.92 Finding no contrary indication in the will in question, the court held that it would be presumed that the testator had died soon after the ceasing of the life interest created by him and his "heirs" (to take the property next) would be ascertained by the law then applicable. Since the life interest in question had ceased by the holder's death in 1957, that law was the Hindu Succession Act, 1956, under which the son's widow was an heir of the testator though he had died far back in 1928. The will was given effect accordingly.93 Perhaps, one could argue that a Hindu testator in 1928 could not have imagined what a drastic change in the concept of "heirs" was in store for the community and that for this reason it should be presumed that while speaking of "heirs'* the testator had a particular group or circle of relations in mind so that anybody outside that group or circle could not have been meant by him by the expression "my heirs". If the testator's 90
It was amended first during 1928-29, next in 1937, and then drastically changed in 1956. See, generally, T, Mahmood, A Study of the Hindu Succession Act 1956 (1980). 91 A.I.R. 1979 S.C. 1298. 92 Id.'&t 1301. 93 u. at 1303. www.ili.ac.in
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probable thinking is to be the guiding factor in the construction of wills this argument should be acceptable; but if legal expressions (like "heir") found in the wills are to be construed literally, the Supreme Court decision94 is appreciable. Settlement-deed—-undue influence
The third Supreme Court decision under the Indian Succession Act, A.M. Pichamuthuv. B.T. Selvaraj,^ is a routine ruling having not much significance. A deed of settlement, executed by a respectable woman, settling property on her niece in preference to her other relatives, was alleged by the latter to have been executed under undue influence. Finding that the executant was a woman of "character and strong will", the court ruled that "in the absence of better or other evidence", undue influence could not be inferred from the mere fact that the niece had befriended her aunt (the executant) and taken care of her in time of need.96 Bequeathed property transferred—effect on will
In undivided India an owner of property situate in the former North West Frontier Province executed a will under which his second wife was, after his death, to take a life estate in his property. After her death the property had to be taken by the grandchildren of his first wife and the children of the second wife in equal shares, per stirpes. After the partition of the country the second wife claimed compensation (on the basis of the will) under the Evacuee Property Act, and got it. Out of the compensation money she purchased some property in India. On her death, grandchildren of the testator's first wife demanded that the will be executed against the property purchased by her out of the compensation money. The dispute finally came up for decision in Chamanlal v. Kundanlal?7 before Kapur J. of the High Court of Delhi. The judge rejected their claim holding that as the property in question "has been transformed and suffered metamorphosis due to circumstances completely outside the control of the parties, the will#could not be given effect to in their favour". 98 The reasoning of the judge, it is submitted, is not appealing. He neither cited any decided case nor attempted to justify his verdict under any provision of the Indian Succession Act. Merely referring to certain passages from Halsbury's Laws of England,00 he ruled that "the will is silent °4 Supra note 91. 9= A J . R . 1979 S.C 1431. 9 6 Ibid. 97 A.I.R. 1979 Del. 240. w Id. at 243, 245.
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regarding compensation and it cannot be made operative qua the compensation".100 We fail to understand how compensation under the Evacuee Property Act can be deemed to be a benefit derived from the corpus of the property different from the corpus. The learned single judge's decision cannot be regarded as palpaply wrong; but the true legal position of the case, we are convinced, has room for a deeper reconsideration. Attesting witnesses
Under section 63 of the Indian Succession Act, a will is to be attested by at least two witnesses. The provision does not require that the attesting witnesses and the testator must be residents of the same place. Nor does the Act suggest that both the attesting witnesses must be produced to testify to the will, if disputed. These aspects of the law of execution of wills were explained by the Punjab and Haryana High Court in Atma Ram v. Parsini.191 In this case only one of the attesting witnesses of the will in question was produced, and he belonged to a village different from that of the testator. The court held that his statement could not be discarded merely since he belonged to another village.102 Non-production of the other attesting witness, the court added, was not a ground sufficient for upsetting thefindingsof fact recorded by the court below.103 "It is for the Court of fact to believe one attesting witness and to uphold the will or to disbelieve all the attesting witnesses and hold the will to be not a genuine document", ruled Mittal J. who delivered the judgment.104 Probate—letters of administration
An applicant for probate under the Indian Succession Act, must ask for it in respect of the entire will. Similarly, a person applying under the Act for letters of administration in respect of a deceased person's estate must ask for it regarding the entire estate. Neither probate nor letters of administration can be asked for in respect of part of a will or fragment of an estate. These points of law have been explained in several cases including one decided in 1970 by the High Court of Andhra Pradesh.105 In In re Veera Jiwatram Chugani,106 Ramachandra Rao J, of the same High ioo Id. at 245. i°i A.I.R 1979 P. & H. 234. 102 Id. at 235. 103 Id. at 235-36. 104 Id. at 235.
105 Govardhan v. Govardhan, AJ.R. 1?70 A.P. 109, W A I.R. 1979 A,P. 145. www.ili.ac.in
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Court referred to the afore-said explained in it. VIII
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Andhra case and applied the law as
TRAVANCORE CHRISTIAN SUCCESSION ACT, 1092
Widow's estate In the State of Kerala, the law of inheritance laid down under the Indian Succession Act does not apply to Christians governed by the Travancore Christian Succession Act, (Act 2 of 1092), which is still in force. The former Act can replace the latter only by virtue of the provision in this regard found in the Special Marriage Act, 1954.107 Ordinarily, the Travancore Act represents the personal law of Christians governed by it and regulates succession to their property. Under the Travancore Christian Succession Act, the widow of a deceased person takes only a life estate in his property. Though under Hindu law (which is the parent law in regard to the concept of widow's limited estate) widow's estates were enlarged into absolute estates twenty-four years ago, 108 the Christian succession law in Kerala remains unamended in this respect till this day. Joseph v. Joseph,109 a case under that law, involving such an estate, came up for decision before Chandrashekhara Menon J. of the High Court of Kerala. His judgment in the case reads like a brilliant essay on a comparative view of widow's estate and reversioners'rights under the traditional Hindu law and the statutory succession law of Travancore Christians. His verdict is that the rights of the widow are weaker and the position of the reversioners stronger under the Travancore Christian Succession Act than under Hindu law.110 Customary succession laws of non-Hindus in Kerala In respect of the Hindu law of property and succession the State of Kerala is most advanced among the constituent units of the Indian Republic. In 1975 it enacted the Hindu Joint Family (Abolition) Act putting an end to all Hindu joint families, both matrilineal and patrilineal, and whether governed by Mitakshara or Malabar law. Certain groups of Christians and Muslims in this state had, long ago, adopted the Hindu customary law. The laws so adopted by them with or without changes were later codified. Among the statutes so enacted were the Travancore Christian Succession Act arid the Mapilla Marumak107 Sees. 21 of that Act. los See s. 14, Hindu Succession Act, 1956. 1WAI.R. 1979 Ker. 2J9, uo/rf. at 221-222. www.ili.ac.in
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kattyam Act, and these are still in force.111 In a bid to keep at an arm's length from the personal laws of the minorities, the state has not touched these laws of the Christians and the Muslims though in no sense these are part of their religion-based laws. Custodians of the state authority in Kerala as well as leaders of the communities concerned must try to correctly understand the nature of these laws which deserve immediate repeal.
" i Mapillas are Muslims otherwise governed by the Shafi'i school of Islamic law. During the year under survey a case has been decided by the Kerala High Court also under the Mapilla Marumajdcattayam Act, gee V. A, Mammen v. ?. Mariyawma^ AJ.R. 1979 Ker. 216, www.ili.ac.in
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