Dr. G. Krishnamurthy vs. The UOI & Anr. AIR 2015 Madras 114
On 20th day of December, 2004, the Hindu Succession Amendment Bill 2004 was introduced, inter alia, seeking to amend the erstwhile section 6 and to omit sections 23 and 24 of the Hindu Succession Act, 1956. Ultimately, the Amendment Act, 2005 was passed as Act 39 of 2005 on 09.09.2005. This Act was introduced pursuant to the recommendation made by the Law Commission to alleviate the gender bias caused by the then existing Act.
By the Amendment Act, not only section 6 was amended apart from omission of sections 23 and 24, but consequent thereon, an insertion was made by way of Amendment to Schedule in Clause-I.
The petitioner submitted that by the amendment made to section 6, the entire concept governing the Hindu Law was sought to be overturned in one stroke. The principle governing “Sapinda” and ”coparcener” as existed in the Shastric and Customary Law has been obliterated . Upon deletion of section 23, it is likely that a Hindu woman after remarriage would continue in the dwelling house wholly occupied by the members of a family of a Hindu intestate. There is also a possibility of a non Hindu residing therein in view of the possible remarriage of the widow. The Petitioner filed a Petition seeking to declare the aforesaid Amendment Act, 2005 as Ultra Vires.
The Court observed that the enactment has been made on the recommendation made by the Law Commission to remove the discrimination meted out to women. Therefore, in order to uphold the protection given under Articles 14, 15 (2) and (3) and 16 of the Constitution of India, the amendment was brought forth. It is trite law that the provisions of the Act would prevail over the old Hindu Law. Though the conferment of the rights to a Hindu woman is belated, it is also gradual through different enactments.
By the Hindu Law of Inheritance Act 1929, inheritance right to three family heirs-son’s daughter, daughter’s daughter and sister was conferred on them
The next legislation “A Hindu Woman’s Right to Property Act , 1937” provided for the right of the Hindu widow to succeed along with the son of the deceased in equal share to the property of a deceased husband. Though the Hindu Succession Act, 1956, (hereinafter referred to as “the Act”) came into being, u/s. 6 the rights of women were restricted. Thus, the new amendment Act was introduced to bring forth an element of equality between a Hindu man and woman. The enactment has been made to implement the fundamental rights enshrined in the Constitution of India.
Coming to section 23 of the Act, it has been omitted to remove the disability to female heirs. The said decision was made keeping the larger public purpose in mind. By virtue of the amendment section 6, the difference between the son and daughter has been removed, and consequently section 23 of the Act has been rightly taken away from the statute book.
Section 24 of the Act also created a statutory discrimination against widows remarrying qua inheritance. This was rightly removed as a woman cannot be deprived of her right to get a property on her remarriage. In other words, by such a remarriage, the entitlement of the widow cannot be extinguished. Accordingly, section 24 was rightly removed from the text.
The petitioner had sought to challenge sections 23 and 24 of the Act on mere presumption and conjunctures. The petitioner had also submitted that a discrimination is sought to be made with respect to Class-II. He had also submitted that Class-I by the inclusion of certain categories of heirs has to be declared as unlawful. The court held that there was no merit in the said submission. In fact, the petitioner had admitted that the laudable object in treating a Hindu man and woman on par had to be appreciated. If that is so, there cannot be any challenge to Class-I of the schedule. Class-I of the Schedule is only consequent upon the amendment made to section 6. It only qualifies the heirs, who are entitled to a property as in Class-I in consonance with section 6. Class-I has never been amended and there is no challenge to it. Therefore, the challenge to the said inclusion made to Class-I of schedule is also rejected.
The Court further observed that a challenge to the constitutionality of an enactment is to be made on the touchstone of the Constitution. It cannot be done based upon mere presumptions. Equally, a mere hardship cannot be a ground to declare a valid legislation to be ultra vires. The court therefore declined to declare the Amendment of 2005 as unconstitutional.
