Monday, May 7, 2012

CONVERSION AND MARRIAGE

- P.RAJENDRAN     www.prajendran.com

           Whether the second marriage of a Hindu husband after conversion to Islam, without having dissolved his first marriage under law would be valid?  Whether the husband would be guilty of committing the offence of Bigamy under Section 494 IPC?  Whether the second marriage would be void in terms of the provisions of Section 494 IPC?  Such questions are being raised very often.
Section 494 IPC reads as follows:  “Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

The Hindu Marriage Act strictly enforces monogamy.  A marriage performed under this Act cannot be dissolved except on the grounds available under Section 13 of the Act. In that situation, parties who have solemnized the marriage under this Act remain married even when the husband embraces Islam in pursuit of another wife. Till the time a Hindu marriage is dissolved under the Hindu Marriage Act none of the spouses can contract a second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu Marriage under the Hindu Marriage Act.  A second marriage of an apostate, would be illegal marriage qua his wife who married him under the Hindu Marriage Act and continues to be a Hindu. Though the marriage solemnized  by a Hindu husband after embracing  Islam may not strictly be a void marriage under the Hindu Marriage Act because he is no longer a Hindu, but between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Hindu Marriage Act and as such would be non est.
The expression “void” defined under Section 11 of the Hindu Marriage Act has a limited meaning within the definition under that Section. On the other hand the same expression has a different purpose under Section 494 IPC and has been used in the wider sense. A marriage which is in violation of the provisions of law would be void in terms of the expression used under Section 494 IPC.  The real reason for the voidness of the second marriage is the subsistence of the first marriage which is not dissolved even by the conversion of the husband. The second marriage by a convert, therefore, being in violation of the Hindu Marriage Act, would be void in terms of Section 494 IPC. Any act which is in violation of mandatory provisions of law is per se void.
The conduct of a spouse who converts to Islam has to be judged on the basis of the rule of justice and right or equality and good conscience. A matrimonial dispute between a convert to Islam and his or her non Muslim spouse is not a  dispute “where the parties are Muslims”  and therefore the rule of decision in such a case was or is not required to be the “Muslim Personal Law”. In such cases the courts shall act and the judge shall decide according to justice, equity and good conscience.  The second marriage of a Hindu husband after embracing Islam being violative of  justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494 IPC.
The above interpretation of Section 494 IPC would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities. The result of the interpretation would be that the Hindu law on the one hand and the Muslim law on the other hand would operate within their respective ambits without trespassing on the personal laws of each other.
Much misapprehension prevails about bigamy in Islam. To check the misuse, many Islamic countries have codified the personal law, wherein the practice of polygamy  has been either totally prohibited or severely restricted. But India is a Democratic Republic.  Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fibre.  Article 25 of the Constitution of India guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law.  Marriage, succession and like matters of a secular character, cannot be brought within the guarantee enshrined under Articles  25 and 26 of the Constitution of India.  The personal law of the Hindus such as relating to marriage, succession and the like have all an origin in the same manner as in the case of the Muslims or Christians. The Legislation – not religion – being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded /supplemented by introducing a uniform civil code for all the citizens in the territory of India. The successive Governments till date have been wholly remiss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India, namely, “endeavour to secure for the citizens a uniform civil code throughout the territory of India”

Thursday, May 3, 2012

DAUGHTER'S RIGHT IN ANCESTRAL PROPERTY

-P.RAJENDRAN    http://www.prajendran.com/




The Hindu Succession  Act, 1956 is an Act to codify the law relating to intestate succession among Hindus. Intestate succession means succession to property left by a Hindu without any testamentary instrument like Will, Settlement etc. The Act brought about important changes in the law of succession but without affecting the special rights of the members of a coparcenary.  Coparcenary consists of  a male Hindu, his son,  grand son (son’s son) and great grand son (son’s son’s son).  Daughters were excluded from succession to coparcenary property. The law by excluding the daughter from participating in the coparcenary ownership not only contributed to her discrimination on the ground of  gender but also led to oppression and negation of her fundamental right of equality guaranteed under Article 226 of the Constitution of India.  Parliament felt that non inclusion of daughters in the coparcenary property was causing discrimination to them and accordingly decided to bring in necessary changes in the law.  Accordingly Section-6 of the Hindu Succession Act, 1956 was substituted by a new provision vide the Hindu Succession (Amendment) Act, 2005 as follows:
'6. Devolution of interest in coparcenary property.-(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect- (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation.-For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.  


(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004".
        The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 09-09-2005.  Thus on and from 09-09-2005 the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.  The States of Tamil Nadu,  Andhra Pradesh, Karnataka  and Maharashtra  made necessary changes in the law giving equal rights to daughters in the ancestral property by enacting State amendments and in these states the daughters have been provided parity of rights in the co-parcenary property with effect from the dates notified by the said State amendments.  The effective dates are:- Tamil Nadu(25-03-1989),  Andhra Pradesh (5-9-1985)  Karnataka (30-07-1994) and Maharashtra (22-06-1994).  The State of Kerala abolished the joint family system by enacting the Kerala Joint Hindu Family System (Abolition) Act. 1975 with effect from 1-12-1976.
  
      The right accrued to a daughter in the ancestral property, by virtue of the Amendment  Act, 2005 is absolute, except in the circumstances provided in the amended Section-6.  The excepted categories to which new Section-6 is not applicable are two, namely, (1)  where the disposition or alienation including any partition which took place before 20-12-2004 and (2) where testamentary disposition of the property was made before 20-12-2004.