After Triple Talaq, a look at other discriminatory personal laws

In light of the Supreme Court’s recent decision to abolish instant triple talaq, a number of
ostensible protectors of Muslim women in Indian politics came out in open support of the
decision, lauding the cleansing of this oppressive religious practice. Of course, the
government was the first to praise its ability to rid Muslim women of an evil they had
suffered for decades. While the decision is welcome, the selective purging of personal laws of
a particular religion does not send out the right message, especially since it is not as if other
personal laws in our country are shining beacons. This would perhaps be an apt time to
remind the government and the courts of a number of other personal laws that are retrograde,
discriminatory and do not apply parity between women and men. That these laws will be
noticed and repealed, however, is perhaps a pipe dream, given that they may not all provide
the sort of political mileage required to win an election.
Obviously instant triple talaq needed to go – it is nobody’s case that the decision was bad law,
in fact the 3:2 majority instead of a unanimous decision was surprising to many, although one
can see merit in the logic of the dissenting opinions too (whether one agrees with them or
otherwise). However, in a political climate like the current one, it is important for the state to
respect personal laws. Choosing one evil in one religion and then parading it so publicly in
the time of what some would describe as beef-policing, history-tampering, cow-worshiping
majoritarianism sends the wrong message. Perhaps the government could serve women from
every community better if it looked at other discriminatory personal laws as well and draft
appropriate legislation.
Property devolving upon the heirs of a woman dying intestate
Under the Hindu Succession Act, 1956 (applicable to Hindus, Buddhists, Jains and Sikhs),
Section 15, the property of a woman (to whom the Act applies) who dies intestate (or without
a will) goes to her children and husband (I use the gender normative word since the Act uses
that word). In their absence, it goes to the heirs of the husband. Only in the absence of such
heirs can it devolve upon such woman’s mother and father or in their absence upon the heirs
of her father and in their absence upon the heirs of her mother. So if a Hindu woman dies
intestate leaving no husband or children, the husband’s family has a right over her property
before her parents. There is a non-obstante caveat to Section 15 which states that if any
property is inherited by the Hindu woman from her father or mother, such property would
devolve upon the heirs of her father (notice how property inherited from her mother also
devolves upon heirs of the father, thereby not even taking into account a possible situation of
a separation or divorce between the parents). Similarly, if it is inherited from her husband or
father-in-law, it goes back to the heirs of the husband (in the absence of children or grand
children). But all other property (not inherited from her parents, husband or father in law), in
the absence of a husband or children, goes to the heirs of the husband.
If I am to contrast this with the devolution of property of an intestate Hindu man, the property
first goes to his children, his widow (again, the word used in Class I of the Act), his mother or
his grandchildren, much like for women, but in their absence it goes to his father, brother,
sister and so on. If these heirs also do not exist, the property devolves upon the “agnates” of
the deceased and in the absence of agnates, lastly upon “coagnates”. Agnates under Section 3
(1) (a) of the Act are defined as two persons related through blood or adoption “wholly
through males”, whereas coagnates are not “wholly through males”.
i) There are so many problems with this legislation. The language of the legislation
– with the use of “husband” and “widow” depending on the gender of the
deceased spouse, and agnates and cognates as being defined using the term
‘wholly through males’ – is insensitive, sexist and leaves a lot to be desired.
This is just the tip of the iceberg. The entire line of Hindu succession for intestate women is
discriminatory. The property as received from a father or a husband goes back to that line (in
the absence of other heirs mentioned above). This feature is unique to this particular Hindu
personal law. At the first instance, in the absence of other heirs, the property goes to the heirs
of the husband rather than the woman’s parents or siblings. The Bombay high court had
declared Section 15 as discriminatory and ultra vires the constitution in Mamta Dinesh Vakil
vs Bansi S. Wadhwa and the matter is pending an appeal before a division bench. In an older
decision, the Bombay high court had upheld the constitutional validity of this provision. The
legislature has not passed any law yet repealing this provision, despite recommendations
from the Law Commission. What, then, is the impact of the Mamta Dinesh decision on this
law? Does it apply only within the jurisdiction of the Bombay high court or does it apply to
the entire country? Can the provision be treated as struck down in the absence of the decision
being overturned? These knotty questions remain unanswered and legislative silence in this
regard, though deafening, is also expected.
Even under the Indian Succession Act, 1925 (applicable to Christians and certain provisions
to Parsis) the property of a man who dies intestate and without lineal descendants passes only
in half to his widow, while the other half passes to relatives kindred to him.
Distribution of property to Hindu women at the time of divorce
The language of Section 27 of the Hindu Marriage Act, 1955 requires that when the court is
distributing any property during a divorce, such property must be present “at or about the
time of marriage” and such property must “belong jointly” to the husband and wife. There
have been conflicting decisions of various high courts in the country on what properties a
woman is entitled to a share of, given that property in the name of one party (such as the
husband) would not fall within the narrow definition of Section 27. Several of these
decisions, including some decisions of the Supreme Court, have attempted to read this
provision widely in order to benefit women, but the success of such case law-based effort is
limited. This problem is typical to India, where the house or other property acquired after
marriage may be in name of the husband regardless of whether the wife contributed to its
purchase. Such contribution may not always be economic or monetary (given that many
women play an active role in household work and sacrifice a career) and other jurisdictions
around the world recognise such contribution. There is no legislation currently in sight that
focuses on amending this discriminatory provision and sporadic attempts in the past have not
yet fructified.
Divorce (or the impossibility of it) under the Indian Divorce Act, 1869
The provisions of this archaic relic of a law governed divorces of Christian marriages till
2001. Under Section 10 of this Act, a woman could petition for divorce under this Act based
only on limited, Victorian grounds – such as the husband leaving Christianity to profess
another religion, “incestuous adultery”, “bigamy with adultery”, “marriage with another
woman with adultery”, “rape, sodomy or bestiality”, “adultery coupled with such cruelty as
without adultery would have entitled her to a divorce a mensa et toro” or adultery with
desertion for two years or more for no reasonable excuse. These grounds seem laughable in
today’s day and age. If this was not enough, under Section 17 of this Act, a decree of
dissolution granted by a district court had to be confirmed by a full bench (at least a three-
judge bench) of the high court. The idea perhaps was to have people continue in marriage
regardless of how unworkable it may have become over the years. This was also professed as
a part of the applicable personal law.
ii) The Supreme Court in Reynold Rajamani vs Union of India observed that while
the court can give as liberal an interpretation as possible to this provision, it is
limited by the words of the provision and it is for the legislature to enact any
required changes. There were several decisions of various high courts that
lamented the provisions of the then Indian Divorce Act, 1869, and the Supreme
Court in Jorden Deindeh vs S.S. Chopra suggested a complete overhaul of the
law.
It was only in 2001 that the Indian Divorce (Amendment) Act, 2001 was promulgated which
amended the erstwhile Act and introduced a new Section 10 which introduced new and
relatively more reasonable grounds of divorce equal for men and women, and also introduced
a new, Section 10A, which allowed for divorce by mutual consent (albeit with the
requirement of a two-year period of separation, though several other personal laws require a
one-year period). Among other changes, the requirement of confirmation of a district court
decree by a high court full bench was also removed.
Even under the amended Act, the bizarre provision of making the “adulterer” or the
“adulteress” a co-respondent in a petition for dissolution of marriage continues (unless the
petitioner can make out grounds under Section 11 of the Act, which involves showing that the
wife is living a life of prostitution or that the husband is immoral and that the spouse does not
know the person with whom such adultery has been committed or that the name is not known
despite making due efforts etc). Prior to its amendment, there used to be a provision which
allowed a party to even claim damages from the alleged “adulterer”. Thankfully this was
repealed by the 2001 amendment. Such antiquated provisions offer little dignity to legal
proceedings. The legislature could take a look at this law too, if it is planning to take steps
towards reworking personal laws.
The above provisions are just a few examples of the many discriminatory personal laws in
India. Whether it is the issue of the marriage of a Parsi woman to a non-Parsi, adoption
amongst various communities, inheritance or marriage, there are countless provisions that do
not belong to the 21st century.
 iii) The focus needs to change from a religion-based discourse to an equality and
dignity based one. The legislature would do well in taking a long and hard look at
some of these personal laws, if it is genuinely interested in moving towards
gender parity.

Shayara Bano v. UOI (2017)

 On August 22nd 2017, the five Judge Bench of the Supreme Court pronounced its
decision in the Triple Talaq Case, declaring that the practice was unconstitutional by a
3:2 majority.
 Majority: Rohinton Nariman J. and U.U. Lalit J.
 Concurring: Kurian Joseph J.
 Dissenting: CJI J.S. Khehar and Abdul Nazeer J.
 Triple Talaq or Talaq-e-Biddat is a practice that allowed a Muslim man to
instantaneously and irrevocably divorce his wife by saying the word ‘talaq’ three
times successively. Ms Shayara Bano filed a petition in the Supreme Court
challenging the practice. She argued that it violates Muslim women’s right to equality
among other constitutional freedoms. This argument was supported by several who
intervened in this case. The 5 judge Constitution Bench of the Supreme Court heard
the matter from May 11th 2017. After six days of arguments from both sides, it
reserved the case for judgement.
 The Court directed the Parliament to take legislative measures against the practice of
Triple Talaq.
 Justices Rohinton Nariman and U.U. Lalit held that Talaq-e-Biddat is regulated by the
Muslim Personal Law (Shariat) Application Act, 1937. They held the practice is
unconstitutional because it is manifestly arbitrary in nature. Justice Kurian Joseph on
the other hand, in his concurring opinion, noted that Triple Talaq is against the Quran,
and thus lacks legal sanction. He wrote, “What is held to be bad in the Holy Quran
cannot be good in Shariat and, what is bad in theology is bad in law as well”.
 Notably, the dissenting minority opinion of Chief Justice Khehar and Justice Abdul
Nazeer traced the elevation of Personal Law to the status of fundamental rights in
the Constituent Assembly Debates on Articles 25 and 44. They held that Triple Talaq
is not regulated by the Shariat Act of 1937, but is an intrinsic part of personal law.
Thus, it is protected by Article 25. Further, the solution to the gender discriminatory
practice of Talaq-e-Biddat is legislative action and not a challenge to its
constitutionality. The minority opinion proposed that Triple Talaq be made inoperative
for 6 months from the judgement. In this time, the Parliament must frame a law
governing triple talaq. However, as the majority opinion has explicitly outlawed
Triple Talaq, this directive holds no force.
Sarla Mudgal v. UOI (1995)
Facts
The Supreme Court clubbed the four petitions which were received under Article 32 of the
Constitution of India and gave a collective decision on similar issue of law. The first petition
is by a registered society, Kalyani who filed this petition along with Meena Mathur who was
married to Jitender Mathur. They got married in 1978 and have three children. While the
husband in 1988 solemnized second marriage with Fathima after converting to Islam. Further,
Fatima filed a petition whereby she says that Jintender has converted back to Hinduism in
April, 1988 and thus, she is not maintained by her husband. In the third petition, Geeta Rani
married Pradeep in 1988 according to Hindu rites and rituals. She was further maltreated and
beaten by her husband so much that at one occasion her jaw was broken by him. Geeta came
to know that Pradeep had run away with Deepa and converted to Islam in 1991. She further
stated that this was for the purpose of having a second marriage by her husband.
Further, the fourth petition is by Sushmita Ghosh was married G. C. Ghosh in May, 1984
according to Hindu rites and rituals. In 1992, the husband informed her that he does not want
to continue in marriage and thus, they both should go for divorce by mutual divorce.
Sushmita was shocked to hear the question of divorce and wanted to live with him. Further,
the husband informed her that he has converted to Islam and is going to marry Vinita. He also
showed his certificated of conversion by Qazi dated June, 1992.
Thus, all the above petitions are revolving around the similar question regarding the personal
marriage and divorce laws since in Muslim personal laws; they are allowed to have more than
one wife while in Hindu law it is prohibited.
Issues
1. Whether a Hindu husband who is married under Hindu can solemnise second
marriage after embracing Islam?
2. Whether the husband will be guilty under Section 494 of the Indian Penal Code,
1860?
3. Whether the second marriage will be a valid marriage even if the first marriage is not
dissolved?
Holding
The court held that the first marriage does not dissolve because of the conversion of husband
to another religion. The first marriage still exists and therefore, it will violate the provision of
Section 494 of IPC which talks about the offence of marrying again during the life of the
spouse.
Rationale
A. Uniform Civil Code
One of the major things that the court addressed was the lack of uniform civil code in the
country along the lines of Article 44 of the Indian Constitution. The court cited the case of
Mohd. Ahmed Khan V. Shah Bano Begum, it was said that a uniform civil code will help in
national integration and remove the disparities in personal laws that prevails. Thus, a
common code will aid in furthering justice as well. The court, thus requested the government
to look again at the Directive Principle to secure such a uniform code. It further said that it
will be furthering the freedoms given from Article 25 to 28 which ensure freedom of religion.
This uniform code is necessary as said by Justice Sahai whereby many spouses try to escape
penalty in the garb of conversion of religion which is permitted in one while prohibited in
another. The court also cited the case of Ms. Jordan Diengdeh V. S. S. Chopra where it said
there is urgency for the provision of Article 44 to be brought to life. The court said that it will
ensure “national unity and solidarity”. For this purpose, government can appoint a committee
and work in consultation with the Minorities Commission.
B. Hindu Marriage Act and Section 494 of IPC
The court has next referred to the doctrine of indissolubility of marriage. The important thing
is that the conversion to a particular religion does not automatically mean that it has lead to
the dissolution of Hindu marriage. It becomes a ground for dissolution or divorce but does
not mean that the dissolution or divorce has happened on conversion of previous marriage.
For that purpose, the court has cited several High Court cases one of which is Nandi V.
Zainab whereby, the wife was charged with offence under Section 494 for marrying when her
previous marriage existed, even though she converted to Mussalman. That was because the
previous marriage still existed.
Further, the court said that a marriage under a particular personal law cannot be dissolved
according to another personal law. It means that when a person is married under Hindu rites,
then dissolution of marriage will take place according Hindu practices and not on another
personal law basis. Thus, a change to another religion does not mean the previous marriage
stopped existing. For this purpose, the court cited the case of Robasa Khanum V. Khodadad
Bomanji Irani, it said that the position is such that the British India is governed by multiple
personal laws and suppose a particular Mahomedan law cannot be said to be applicable to a
non-Mahomedan. The court also said that according to Hindu Marriage Act, 1955, it has no
application on Muslims, Christains and Parsees. The marriage can be dissolved only through
the grounds given under Section 13. Furthermore, Section 15 provides when the divorced
person can marry again and in no other condition. So, in accordance to all the provisions
above, the court said that the first marriage remains valid and existing even when they
embrace another religion because Hindu Marriage Act enforces on monogamy. The second
marriage would become illegal because the husband married when his first wife was still
living. In that case, it would invite the provision of Section 494 which says the same and
prescribes a punishment up to seven years and fine.
The court also talked about the expression void under Section 11 of the Hindu Marriage Act.
It said that the expression “void” is used in wider sense in Section 494. Under the Hindu
Marriage Act, the dissolution can only happen according to the specified grounds under the
Act, if that does not happen then the marriage still exist. Thus, the second marriage will
violate the void part of Section 494 by violating the “mandatory provision” of the Act, 1955.
For that, the court again cited the Robasa case and it was held that it violated “justice, equity
and good conscience” when a Hindu husband contracts second marriage by embracing Islam
which would make it void and thus, Section 494 will be applicable. Therefore, another point
is that it would be against the natural justice principle which gives right to husband to convert
but not before dissolving the marriage on the grounds given in the Act. The second marriage
with previous marriage still persisting will violate the rule of natural justice.

Lily Thomas v. UOI (1995)

To avoid solemnizing second marriages without a proper and legal dissolution of the first
marriage, the Supreme Court of India took a preventive measure. Thus, following this
decision, it was held that if a marriage is formed without first obtaining a proper and legal
divorce from the first marriage, the second marriage will be considered void under law, and if
a man is found doing so, the husband will be held liable under sections 494 and 495 of the
Indian Penal Code (IPC), 1860 for the offence of bigamy. This landmark judgment was
delivered by a division bench of the Supreme Court, consisting of Justice RP Sethi and SS
Ahmad.
Facts of the Case:
A Marriage was constituted between Mrs. Sushmita Ghosh & Mr. Gyan Chand Ghosh on
10th May 1985, following all Hindu rituals and traditions. A month later, on April 22nd her
husband conveyed to her he was no longer willing to live with her, and thus, she should agree
for getting a divorce with mutual consent. The husband told her he has converted to Islam
and would marry Vinita Gupta. Later on, the husband of the petitioner pronounced that he
was converting his religion to Islam for which he got a certificate on 17th June 1992, and thus
would marry again with a lady named Vinita Gupta. Therefore, the petitioner i.e. Mrs.
Sushmita Ghosh prays her husband should be abstained from marrying Vinita Gupta.
Issues Raised:
Can a Hindu male be allowed to enter another marriage after converting to Islam?
Would a Hindu male be held liable for the offence of Bigamy as per section 494 of the Indian
Penal Code (IPC), 1860?
Judgment Review:
If a Hindu spouse converts their religion in order to convene a second marriage with no
intention of truly professing such religion but only to achieve an ulterior motive, the second
marriage is null and void. Article 21 of the Constitution is violated. The first is not dissolved
simply because either party converts. Especially if the first marriage is still in force, such an
action would constitute bigamy under Section 17 of the Hindu Marriage Act. It shall invite
the provisions of IPC Sections 494 and 495. Marriage is performed in India in accordance
with the provisions of personal laws applicable to the parties. The Court ruled that a mere
conversion does not dissolve a marriage until a divorce decree is obtained from the competent
Court and that until the decree is obtained, the marriage remains valid and continues to exist.
This landmark decision was regarded as significant due to the evil conduct of a Hindu male
converting to Islam for the purpose of second marriage. Bigamy is a punishable offence under
Hindu law. Marriage is regarded as sacred in Hindu law, and thus the concept of remarrying
when the first marriage is valid and subsisting is forbidden.

Mohd. Ahmad Khan v. Shah Bano

 One of the most significant reforms came in 1985, when the Supreme Court delivered
its judgement in Mohd. Ahmed Khan v Shah Bano Begum (commonly referred to
as Shah Bano). A five-judge Bench led by YV Chandrachud J directed Mohd. Ahmad
Khan to provide maintenance to his divorced wife, despite this not being required by
Muslim personal law.
 At the heart of the case was the question whether Muslim alimony customs were
subject to judicial review. Khan had countered Bano’s claim for maintenance on the
ground that their divorce was governed by Muslim personal law. According to the
Shariat, a husband must only provide maintenance to his divorced wife for a short
period of time called iddat.
 However, Chandrachud J rejected his claim and held that Shah Bano was entitled to
maintenance under Section 125 of the Code of Civil Procedure, 1973. He reasoned that
a husband’s religion cannot entitle him to neglect his wife: ‘The liability imposed by
section 125 to maintain close relatives who are indigent is founded upon the
individual’s obligation to the society to prevent vagrancy and destitution’.
 With this, Chandrachud J not only set the ground for Muslim women to challenge
Muslim personal laws in court, but he also reignited calls for a UCC. In fact, he
himself recommended in the judgment that Parliament should introduce a UCC: ‘It is a
matter of a regret that Article 44 of our Constitution has remained a dead letter’. He
was not blind to the fact that legislators would face steep political costs by proposing
to do away with personal laws. However, he maintained that it was their constitutional
duty to nevertheless attempt to do so: ‘a beginning has to be made if the Constitution is
to have any meaning’.

Danial Latifi v. UOI (2001)

The Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRDA, 1986) seemed
to overrule the Supreme Court’s decision in Mohd. Ahmed Khan v. Shah Bano Begum.
Pursuant to a prima facie reading of the MWPRDA, 1986, a Muslim husband was responsible
to maintain his divorced wife only for the iddat period and after such period the onus of
maintaining the woman would shift on to her relatives. The matter resurfaced before the
Supreme Court in Danial Latifi v. Union Of India when the constitutional validity of the
MWPRDA, 1986 was challenged on the grounds that the law was discriminatory and
violative of the right to equality guaranteed under Article 14 of the Indian Constitution as it
deprived Muslim women of maintenance benefits equivalent to those provided to other
women under Section 125 of Criminal Procedure Code, 1973. Further, it was argued that the
law would leave Muslim women destitute and thus was violative of the right to life
guaranteed under Article 21 of the Indian Constitution. The Supreme Court, on a creative
interpretation of the MWPRDA, 1986, upheld its constitutionality. It held that a Muslim
husband is liable to make reasonable and fair provision for the future of his divorced wife
extending beyond the iddat period. The Court based this interpretation on the word
“provision” in the MWPRDA, 1986, indicating that “at the time of divorce the Muslim
husband is required to contemplate the future needs [of his wife] and make preparatory
arrangements in advance for meeting those needs” (at 11). This case is important because, it
established for the first time that a Muslim husband’s liability to provide maintenance to his
divorced wife extends beyond the iddat period, and he must realize his obligation within the
iddat period, thereby striking a balance between Muslim personal law and the Criminal
Procedure Code, 1973.

Shafi Jahan v. Ashokan KM (2018)

On April 9th, 2018, the Supreme Court delivered its judgment in two seperate concurring
opinions. It reversed the Kerala High Court’s judgment, where it annuled Hadiya’s marriage
to Shafin Jahan.
Background
On May 24th 2017, Justices Surendra Mohan Kuriakose and Abraham Mathew of the Kerala
High Court annulled Hadiya’s marriage to Mr. Shafin Jahan. The Kerala High Court
judgement stated that ‘a girl aged 24 years is weak and vulnerable, capable of being exploited
in many ways’. The High Court gave Hadiya’s parents custody of her. In response, Mr Shafin
Jahan filed a special leave petition, challenging the judgement.
On March 8th 2018, the Supreme Court set aside the annulment of the marriage. The Bench
comprised Chief Justice Dipak Misra, and Justices A. M. Khanwilkar and D. Y. Chandrachud.
On April 9th 2018, it passed the judgement explaining the reasoning behind its decision.
In its judgement, the Supreme Court makes no mention of its order to the National
Investigation Agency (NIA). The Court had ordered the NIA to investigate Hadiya’s marriage
and conversion to Islam.
Summary of the judgment:
The High Court wrongly exercised its Habeas Corpus jurisdiction
The writ of habeas corpus is ‘a great constitutional privilege’ or ‘the first security of civil
liberty’. It is a remedy against illegal detention, which affects the liberty and freedom of the
detainee. Its purpose is to see that no one is under illegal confinement, deprived of liberty
without the sanction of the law. In this case, the High Court misused the habeas corpus.
When Hadiya appeared before the High Court, she stated that she was not under illegal
confinement. The High Court has no power to decide the ‘just’ way of life or ‘correct’ course
of living for Hadiya. She has absolute autonomy over her person.
Moreover, in Hadiya’s case, the High Court was guided by social considerations. It was
wrong and unnecessary to go into aspects of social radicalization in a writ of habeas corpus.
It is the job of the law enforcement agencies to look into aspects of criminality. The Court
should only look at whether the person has been detained without lawful authority. Further,
the argument that Mr Jahan would take Ms Hadiya out of the country was also unnecessary to
examine for a habeas corpus case. Apprehensions of any future activity must be governed and
controlled by the State.
The High Court wrongly invoked the parens patriae jurisdiction
Parens patriae is the power of the State to intervene against an abusive or negligent parent or
guardian. The State acts as the parent of such an individual. The courts can invoke this role
only in exceptional cases where the individual is either mentally incompetent, or underage, or
has either no parent/legal guardian or has an abusive one. Ms Hadiya is neither mentally
incapacitated nor vulnerable. She equivocally expressed her choice, and the right to choose is
a constitutionally guaranteed freedom and a facet of individual identity. It could not take
precedence over social and moral values. A Constitutional Court must protect fundamental
rights and thus could not reject Hadiya’s choice.
The High Court transgressed on constitutional rights
Ms Hadiya and Mr Shafin Jahan are adults, who decided to marry each other. Marital status is
conferred through legislation or custom. The High Court was wrong in letting parental love
and concern override the right of an adult to choose who she wishes to marry. Moreover, the
Constitution guarantees that the ability to take such decisions is a part of liberty and
individual autonomy. The right to marry a person of one’s choice is integral to Article 21.
Choice of a partner lies within the exclusive domain of an individual, and is a part of the core
zone of privacy, which is inviolable. Thus, the High Court was wrong in using its powers
under Article 226 to annul Hadiya’s marriage with Shafin Jahan.

Vineeta Sharma v. Rakesh Sharma (2020)

 On 11-8-2020, the Supreme Court of India passed a landmark judgment in Vineeta
Sharma v. Rakesh Sharma[1], stating that the Hindu Succession (Amendment) Act,
2005[2] will have a retrospective effect. The 2005 Amendment amended Section 6 of
the Act in order to align with the constitutional belief of gender equality. Under the
amendment, the daughter of the coparcener shall by birth become a coparcener in her
own right in the same manner as the son. Vineeta Sharma case[3] settled the matter in
the question – whether the 2005 Amendment had deemed the daughter to have the
same right as of a son in the coparcenary property irrespective of the father being
alive before the Amendment.
 The judgment was decided by a three-Judge Bench comprising of Arun Mishra, M. R.
Shah and S. Abdul Nazeer, JJ. and was authored by Arun Mishra, J. It stated that as
 the right of being a coparcener is by birth for a son and so is it for a daughter post the
2005 Amendment, and even if the father was not alive on 9-9-2005, it does not
obstruct a daughter’s right from claiming her share in the coparcenary property. This
judgment resulted in overruling the Supreme Court’s earlier judgments in Prakash v.
Phulavati[4] and Mangammal v. T.B. Raju[5] which had held otherwise. Hereby,
Vineeta Sharma[6] judgment re-affirmed equality in the treatment of sons and
daughters by the law for the purposes of succession.
 One of the reasons listed by the Supreme Court in the recent judgment to put the
daughter at par with the son is that coparcenary rights are formed since birth and “it is
not necessary to form a coparcenary or to become a coparcener that a predecessor
coparcener should be alive.”[7] The Supreme Court held that notional partition, the
proviso to Section 6 of the 2005 Amendment Act[8] mentions, is merely a fiction of
partition that is created in order to ascertain the share of the surviving Class I female
heirs[9] or male relatives of the female heirs of the deceased coparcener. However, the
purpose behind the statutory fiction is “not to bring about the real partition”.[10]
 The concept of notional partition is created to give effect to the Explanation to Section
6 of the Hindu Succession (Amendment) Act, 2005[11]. It is a legally formed fiction
where partition is assumed to happen between the deceased and his coparceners,
immediately before the death of the deceased. Notional partition can be interpreted in
the following two ways: (1) narrow interpretation; and (2) broad interpretation.
 In the narrow interpretation, notional partition is a partial partition. According to the
unamended Section 6, intestate succession happened by notional partition only if any
member from Class I heirs mentioned in the Schedule, was alive at the time of the
death of the deceased. This indicates that the property divided is like a legal fiction
created only to determine the share of the deceased. Whereas the other remaining part
of the property continues to be a coparcenary property until an actual partition is
effected. In this way, the coparceners have fluctuating undivided joint interest in the
coparcenary property. Therefore, the narrow concept of notional partition does not
result in the disruption of the joint Hindu Undivided Family. Accordingly, female
members who inherit in joint family property under unamended Section 6 (wife,
mother and grandmother), will be entitled only to the share which is notionally
devolved upon her as per Explanation 1 to Section 6[12] if the actual partition does
not take place.
 On the other hand, the broader interpretation of notional partition assumes that the
actual partition has occurred immediately before the death of the deceased. This
interpretation is followed by the Supreme Court in Gurupad Khandappa v. Hirabai
Khandappa Magdum[13]. In Uttam v. Saubhag Singh[14], which was decided post
2005 Amendment, the Supreme Court placed reliance on Khandappa case.[15] Going
by this interpretation, the fictional assumption should be brought to a logical end. It
should be treated and accepted as a concrete reality. Once the fictional assumption is
made, it is not irrevocable as the “… assumption having been made once for the
purpose of ascertaining the share of the deceased in the coparcenary property, one
cannot go back on that assumption and ascertain the share of the heirs without
reference to it.”[16]
 As a result of following the broader interpretation of notional partition, the joint
Hindu Undivided Family no longer exists, by converting the coparcenary property
into separate property of the deceased’s heirs. Accordingly, female members who
inherit in joint female property under amended Section 6 will be entitled to both the
interest which she has inherited and the share which is notionally devolved upon her
as per Explanation 1 to Section 6.[17] However, it must be noted that broader
interpretation of the fiction can be used only to ascertain the shares of the deceased
and cannot be carried beyond that to say that the female heirs cease to be members of
the joint family.[18] Therefore, broader interpretation of the concept of notional
partition is used to enlarge the scope of the shares which women are entitled to so as
to be in tandem with the Statement of Objects and Reasons of the said 2005
Amendment Act.
 In Vineeta Sharma[19], the Court relied on the narrow interpretation of notional
partition by holding that “The entire partition of the coparcenary is not provided by
deemed fiction; otherwise, coparcenary could not have continued which is by birth,
and the death of one coparcener would have brought an end to it.”[20] This results in
keeping the spirit of joint Hindu family intact.[21] This rationale is given to justify
that coparcenary rights are available since birth and hence, daughters will get share in
the coparcenary property irrespective of the father being alive or not.
 However, due to this reasoning, the female member (who cannot ask for partition
since they are not coparceners) who inherits the joint family property will have to bear
the brunt if she dies before any actual partition is initiated by the coparceners. This is
because, while they will be entitled to the share devolved upon notionally as per
amended Section 6, they will not receive any right in the joint family property. If the
Supreme Court would have followed the broad interpretation instead, it could have
yielded a similar result of vesting the daughter with the same right as of the son in the
coparcenary property irrespective of father being alive. Moreover, it would have
granted the daughter-in-law her share of the property without her having to depend on
any coparcener to demand for an actual partition in future.
 The Supreme Court in Vineeta Sharma[22] judgment traces its way back to the past
by following narrow interpretation and ensures that the joint Hindu Undivided Family
stays intact. Whereas, the 174th Report of the Law Commission of India[23] and the
Consultation Paper on Reform of Family Law, 2018[24] both recommended the
abolition of coparcenary and to put an end to the joint Hindu family system. The
abolition of coparcenary is the only plausible solution to rectify the inherent biases of
the Hindu Succession (Amendment) Act, 2005.
 While the decision in Vineeta Sharma[25] is a progressive step forward, however, it
raises a lot of issues which are yet to be addressed. The judgment quoted that “Once a
daughter, always a daughter … son is a son till he is married.”[26] Many have
celebrated this statement, yet it has deep hues of romantic paternalism behind it. By
stating so, the Court implied that a daughter can never form her own coparcenary as
she will always need to hide behind the shadow of her father, grandfather, brother,
husband, or son. This has led to an anomalous situation as sons can start their own
coparcenary once they get married and have children.
  To say the least, the judgment does not just raise one issue, it raises a couple of them.
The issues related to gender inequality still persists. By pushing a narrative shrouded
in romantic paternalism, the Court has failed to see that the married women are now
double beneficiaries of these laws (same women inherit from the lineage as well as
from her marriage). While at the same time it has turned a blind eye towards the men
who only inherit property because of a single lineage. This further re-enforces the
patriarchal structure of the society in which men are also victims at certain times.
 While this judgment surely is a welcoming step, however, it opens floodgates of
various questions which are yet to be answered. It will be interesting to know how
things unfold with respect to ascertaining the shares of dependent women under the
abovementioned circumstances. Moreover, it pushes to shift the discourse regarding
gender equality and traditional laws, as the country waits holding its breath
anticipating what is to come.

Live-in relations
D Velusamy vs. D Patchaiammal (2010)
 The respondent, D Patchaiammal filed a petition with the Family Court in 2001, under
Section 125 of the Code of Criminal Procedure (CrPC), claiming that she got married
to the appellant on 14th September 1986 and that they had lived together for
about two to three years in her father’s home.
 After that period, the appellant moved out of the house and began staying in his
hometown, but he returned occasionally. She stated she had no source of income and
could not support herself, while the appellant is a Secondary Grade Teacher at
Thevanga Higher Secondary School, Coimbatore, earning Rs.10,000/- per month and
has demanded that she be paid Rs. 550 per month as her maintenance.
 The appellant claimed he was married to a woman named Lakshmi, whom he married
on 25th June 1980, as per Hindu Marriage customary rites. A male child was born out
of wedlock, and he is a student at C.S.I Engineering College in Ooty. To prove his
marriage to Lakshmi, the appellant presented his ration card, his wife’s
voter identification card, his son’s transfer certificate, his wife’s discharge certificate
from the hospital, photographs of the wedding, and other documents.
 The Family Court, by judgment dated 5th March 2004, held that the appellant was
married to the respondent and not to Lakshmi. The Madras High Court upheld the
decision of the Family Court and hence, the appellant challenged the decisions of the
Family Court and the Madras High Court in the Supreme Court of India.
 ISSUES
 Whether the appellant married Lakshmi before marrying the respondent?
 Whether the respondent entitled to maintenance under Section 125 of the CrPC?
 RATIO DECIDENDI
 Justice Markandey Katju: Section 125 of the CrPC provides for the maintenance of
the wife and certain other relatives. In Section 125(1)(b) of the CrPC, the term ‘wife’
is defined as follows: “Wife includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried.”
 Since no notice was given to Lakshmi and she was not heard, the lower courts made
an error in law in ruling that she was not married to the appellant.
 Section 20 (1)(d) of the Protection of Women from Domestic Violence Act, 2005
provides for maintenance of an aggrieved party in addition to an order of maintenance
under section 125 of the CrPC. Under the Act, economic exploitation of the aggrieved
is considered domestic violence u if the aggrieved and the other party have a domestic
relationship.
 Under Section 2(f) of the Act, a domestic relationship encompasses a relationship in
the nature of marriage. To qualify for the benefit of a “relationship in the nature of
marriage,” the parties must meet the requirements for common law marriage, as well
as have lived together in a “shared household,” as specified in Section 2(s) of the Act.
 DECISION IN D. VELUSAMY v. D. PATCHAIAMMAL CASE:
 The Supreme Court opined that the High Court and the family Court Judge erred
in law by ruling that the appellant was not married to Lakshmi without even
giving her notice, which contradicts the principles of natural justice.
 Thus, this finding must be overturned, and the case must be remanded to the Family
Court, which can serve notice on Lakshmi and, after hearing her, issue a new finding
under the law.
 Only after the above finding can the matter of whether the appellant was
married to the respondent be determined because if the appellant had been
married to Lakshmi, then without the dissolution of that marriage, the marriage
between the appellant and the respondent would not have been legally valid.
 The apex court further held that the learned Family Court Judge’s decision did not
determine whether the appellant and respondent had lived together in a
relationship for a reasonable period that was in the nature of marriage. Such a
finding was critical in reaching a decision in this case.
 Therefore, the impugned judgments of the High Court and the Family Court
Judge, Coimbatore were reversed, and it remanded the case to the Family Court
Judge to determine the case anew under the law and considering the above
observations. The appeals were permitted.
 CONCLUSION
 The essentials to constitute “relationship in the nature of marriage” under the
Protection of Women from Domestic Violence Act, 2005, laid down by the
Supreme Court in this case, is one of the most noteworthy facets of the judgment.
 Despite widespread criticism that the judgment, in this case, confronted because of the
use of certain objectionable terms, the decision in D. Velusamy v. D.
Patchaiammal remains the definitive pronouncement for the phrase “relationship in
the nature of marriage,” as it has not been overturned by a larger bench of the
Supreme Court