Introduction It was Julius Caesar who described the backstabbing by Brutus as the most unkindest cut of all, since it came from a trusted friend. A similar feeling of distrust is brewing amongst Hindu women in India on the passage of the
Repealing and Amendment Act, 2015 by the Parliament which was notified on 13th May, 2015. This is an Act to repeal certain old and obsolete Acts as a part of the Government’s push towards ease of doing business. Why then this resentment, would be the first question which crops up.
One of the several Acts which have been repealed is the Hindu Succession (Amendment) Act, 2005. Jog your memory a bit and you would recall that the Hindu Succession (Amendment) Act, 2005 was the very same path-breaking Act which placed Hindu daughters on an equal footing with Hindu sons in their father’s HUF. Hence, after this Act has been repealed with effect from 13th May 2015 does it mean that Hindu daughters again stand to lose out on this parity with Hindu sons and are relegated to the earlier position? Has the Parliament taken away an important gender bender right? Let us unravel this seemingly Sherlockian mystery.
The 2005 Amendment Act
The Hindu Succession (Amendment) Act, 2005 ushered in great reforms to the Hindu Succession Act, 1956. The Hindu Succession Act, 1956, is one of the few codified statutes under Hindu Law. It applies to all cases of intestate succession by Hindus. The Act applies to Hindus, Jains, Sikhs, Buddhists and to any person who is not a Muslim, Christian, Parsi or a Jew. Any person who becomes a Hindu by conversion is also covered by the Act. The Act overrides all Hindu customs, traditions and usages and specifies the heirs entitled to such property and the order or preference among them.
By the 2005 Amendment Act, the Parliament amended section 6 of the Hindu Succession Act, 1956 and the amended section was made operative from 9th September 2005. Section 6 of the Hindu Succession Act, 1956 was totally revamped. The amended section provided that a daughter of a coparcener:
a) became, by birth a coparcener in her own right in the same manner as the son;
b) had, the same rights in the coparcenary property as she would have had if she had been a son; and
c) was, subject to the same liabilities in respect of the coparcenary property as that of a son.
Thus, the amendment equated all daughters with sons and they could now become a coparcener in their father’s HUF by virtue of being born in that family. She had all rights and obligations in respect of the coparcenary property, including testamentary disposition. Thus, not only did she become a coparcener in her father’s HUF but she could also make a will for the same. The Delhi High Court in Mrs. Sujata Sharma vs. Shri Manu Gupta, CS (OS) 2011/2006 has held that a daughter who is the eldest coparcener can become the karta of her father’s HUF.
One issue which remained unresolved was whether the application of the amended section 6 was prospective or retrospective? This issue was recently resolved by the Supreme Court in its decision rendered in the case of Prakash vs. Phulvati, CA 7217/2013, Order dated 16th October 2015. The Supreme Court examined the issue in detail and held that the rights under the amendment are applicable to living daughters of living coparceners (fathers) as on 9th September, 2005 irrespective of when such daughters are born and irrespective of whether or not they are married. Thus, in order to claim benefit, what is required is that the daughter should be alive and her father should also be alive on the date of the amendment, i.e., 9th September, 2005. Conversely, a daughter whose father was not alive on that date cannot be entitled to become a coparcener in her father’s HUF.
Effect of the Repealing Act of 2015
As explained earlier, the Repealing and Amendment Act, 2015 has repealed the Hindu Succession (Amendment) Act, 2005. What is the effect of this repeal? Does s.6 of the Hindu Succession Act now hark back to the preamended position? Would a daughter whose father was alive on 9th September 2005 no longer be entitled to be a coparcener in her father’s HUF? Further, if she is the eldest coparcener, would she no longer be entitled to be the karta of her father’s HUF?
The answer to these dreaded questions is an emphatic No! Recourse may be made to section 6-A of the General Clauses Act, 1897 which states that when any Act repeals any other Act by which the text of another Act was amended by express omission/insertion/substitution of any matter, then unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by repealed Act.
This position was also explained by the Calcutta High Court in Khuda Bux vs Manager, Caledonian Press, AIR 1954 Cal 484. In this case, the Factories Act, 1934 was repealed by section 120 of the Factories Act 1948. The Repealing and Amending Act of 1950 repealed section 120 of the 1948 Act. Hence, it was contended that even the repeal of the Factories Act of 1934 had now disappeared, because the repeal effected by section 120 of the Act of 1948 had itself been repealed. The Act of 1934 could no longer be said to have been repealed or, in any event, the Act of 1948 could no longer be said to have repealed and re-enacted it. The High Court set aside this plea and held that this was based upon a mistaken belief of the scope and effect of a Repealing and Amending Act. Such Acts had no legislative effect, but were designed for editorial revision, being intended only to excise dead matter from the statute book and to reduce its volume. Mostly, they expurgate amending Acts, because having imparted the amendments to the main Acts, those Acts had served their purpose and had no further reason for their existence. The only object of such Acts was legislative spring-cleaning and they were not intended to make any change in the law. Even so, they are guarded by saving clauses drawn with elaborate care. Besides providing for other savings, that section said that the Act shall not affect “any principle or rule of law notwithstanding that the same may have been derived by, in, or from any enactment hereby repealed.”
Thus, the repeal of an amending Act has no repercussion on the parent Act which together with the amendments remained unaffected. On the same principles is the decision of the Supreme Court in Jethanand Betab vs The State of Delhi, AIR 1960 SC 89. The Indian Wireless Telegraphy Act,1933 provided that no person shall possess a wireless telegraphy apparatus without a licence and section 6 made such possession punishable. The Indian Wireless Telegraphy (Amendment) Act,1949, introduced section 6(1A) in the 1933 Act, which provided for a heavier punishment. The Repealing and Amending Act, 1952, repealed the whole of the Amendment Act of 1949. A person was convicted u/s. 6(1A) but he contended that section 6(1A)was repealed and thus, his conviction should be set aside. The Supreme Court negated the accused’s plea and held that the general object of a repealing and amending Act is stated in Halsbury’s Laws of England, 2nd Edition, Vol. 31, at p. 563, thus:“…..does not alter the law, but simply strikes out certain enactments which have become unnecessary. It invariably contains elaborate provisos.” The Apex Court held that it was clear that the main object of the 1952 Act was only to strike out the unnecessary Acts and excise dead matter from the statute book in order to lighten the burden of ever increasing spate of legislation and to remove confusion from the public mind. The object of the Repealing and Amending Act of 1952 was only to expurgate the amending Act of 1949, along with similar Acts, which had served its purpose.
Karnataka High Court’s decision
The Karnataka High Court in Smt. Lokamani vs. Smt. Mahadevamma AIR 2016 Kar 4 had an occasion to consider the impact of the Repealing Act of 2015 on section 6 of the Hindu Succession Act, 1956. In this case it was argued that section 6 of the Hindu Succession (Amendment) Act, 2005 was now repealed by the Repealing and Amending Act, 2015. Therefore, the status of coparcener conferred on the daughter of a coparcener under the amended Act was no more available to the plaintiffs. Thus, the express question considered by the High Court was whether the Repealing and Amending Act, 2015, which repealed the Hindu Succession (Amendment) Act, 2005 to the whole extent, had the effect of repealing amended section 6 and restoring the old section 6 of the Hindu Succession Act, and thereby took away the status of coparcener conferred on the daughters giving them equal right with the sons in the coparcenary property? The High Court negated the contention that the 2005 amendment to section 6 was repealed. It relied on section 6A of the General Clauses Act and a decision of the Constitution Bench of the Supreme Court in Shamrao Parulekar vs. District Magistrate Thana, AIR 1952 SC 324 and held that it was clear that section 6 of the Hindu Succession Act, 1956 was substituted by section 6 of the Hindu Succession (Amendment) Act, 2005. The effect of substitution of a provision by way of an amendment was that, the amended provision was written in the place of earlier provision with pen and ink and automatically the old section was wiped out. So, there was no need to refer to the amending Act at all. The amendment should be considered as if embodied in the whole statute of which it had become apart. The statute in its old form is superseded by the statute in the amended form. The Court held that amended Section of the statute took the place of the original section, for all intent and purpose as if the amendment had always been there.
Further, the Repealing and Amending Act, 2015 did not disclose any intention on the part of the Parliament to take away the status of a coparcener conferred on a daughter giving equal rights with the son in the coparcenary property. On the contrary, by virtue of the Repealing and Amending Act, 2015, the amendments made to Hindu Succession Act in the year 2005, became part of the Act and the same is given retrospective effect from the day the Principal Act came into force in the year 1956, as if the said amended provision was in operation at that time. The Court concluded that though the Amended Act came into force on 9.9.2005, section 6 as amended was deemed to have been there in the statute book since 17.6.1956 when the Hindu Succession Act came into force.
While the Karnataka High Court’s decision on the effect of the Repealing Act is in order, the latter part of the decision (refer portion in italics above) does raise a question mark. It concluded that the amendment was given retrospective effect from the date the 1956 Act came into force. This decision was rendered prior to the Supreme Court’s decision in the case of Prakash vs. Phulavati (supra) wherein it was held that the amendment to s.6 was prospective and was applicable only to living daughters of living fathers as on 9th September 2005. The Repealing Act was neither cited nor considered by the Supreme Court. The decision of the Karnataka High Court in Smt. Lokamani’s case was also not cited before the Supreme Court. Does the ratio of the Supreme Court’s decision change in the light of the Repealing Act? Does the Repealing Act make the amendment retrospective as held by the Karnataka High Court?
In my humble submission, the Repealing Act does not change the position as laid down by the Supreme Court. This view is fortified by the fact that the Supreme Court’s decision was against the Karnataka High Court’s judgment (AIR 2011 Kar 78) in the very same case which had held that the amendment to section 6 was retrospective in nature. The Supreme Court held that an amendment to a substantive provision was always prospective unless either expressly or by necessary intendment it is retrospective. In the Hindu Succession (Amendment) Act, 2005, there was neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Hence, the amendment was clearly prospective.
Conclusion
Hindu daughters should rest assured that their rights are in no way abrogated by the Repealing Act of 2015. The Indian Parliament has not played a ‘Brutus’ on them. However, the issue of prospective vs. retrospective operation of the 2005 Act may yet play out before the Courts in the light of the added angle of the Repealing Act. How one craves for the usage of clear language by the draftsman when drafting a law so that such ambiguities and technicalities do not rob the sheen of the substance of the Act!
