Month: February 2017

supreme court on Muslim’s :Right to inheritance

A Muslim is entitled to relinquish his property even before inheritance from the original owner but is precluded from re-claiming it, the Supreme Court has ruled.

A three-judge bench of justices Altamas Kabir, Cyriac Joseph and S S Nijjar said the doctrine of specs successions (renunciation of rights before accrual) which applies to the general law under the Transfer of Property Rights Act was not applicable in the case of Muslims.

“There is little doubt that ordinarily there cannot be a transfer of specs successions but in the exceptions pointed out by this court in Gulam Abbas’s case the same can be avoided either by the execution of a family settlement or by accepting consideration for a future share.

“Thus, a Mohammedan may also make a disposition of his entire property if all the heirs signified their consent to the same,” Justice Kabir writing the judgement said.

The apex court passed the judgement while dismissing the appeals of certain aggrieved siblings of a Muslim estate owner Meeralava Rawther in Kerala’s Thodupuzha district.

Rawther died intestate in 1986 leaving 1.70 acres of land as his estate. One of his sons Hassan Khani obtained a decree from the Kerala High Court that the entire property belonged to him as his late father had before his death bequeathed it to him through an oral agreement in 1982.

It was claimed the father bequeathed it to him since the other five siblings had left the family home to set up their own families and as part of the deal decided to relinquish all their rights on the estate after having taken some consideration.

However, the other siblings chose to challenge the purported agreement on the ground that Hassan cannot have any exclusive rights since under the Transfer of Property Act and the Mohammedan Law there cannot be any specs succession.

It was argued that a Muslim is not entitled in law to relinquish an expected share in a property.

Rejecting the arguments, the apex court said the binding force of the renunciation of a supposed right would depend on the attendant circumstances and the whole course of conduct of which it formed a part.

“In other words, the general principle that a Mohammedan cannot by Will dispose of more than a third of his estate after payment of funeral expenses and debts is capable of being avoided by the consent of all the heirs.

“In effect, the same also amounts to a right of relinquishment of future inheritance which is on one hand forbidden and on the other accepted in the case of testamentary disposition. Having accepted the consideration for having relinquished a future claim or share in the estate of the deceased, it would be against public policy if such a claimant be allowed the benefit of the doctrine of spes successions,” the bench said while dismissing the appeal.

Muslim Father is Under obligation to pay marriage expenses to unmarried major daughter.

Muslim Father is Under obligation to pay marriage expenses to unmarried major daughter

Right/obligation to maintain the unmarried daughter includes the right/obligation to meet the marriage expenses of the unmarried daughters. This is so for all fathers – be they Hindus, Muslims, Christians or others. We adopt the following process of reasoning to reach that conclusion. They all have the duty under their personal law to maintain their children. Even ignoring the personal law, as declared in Mathew Varghese (supra), such a right/duty can be spelt out from Article 21 of the Constitution. Duty to maintain is not limited to provide for food, raiment and lodging. It includes the duty of the obligee to do all acts for the physical, mental and moral well being of the child. That duty has to be understood in the context of the Indian society in the modern constitutional republic. The concept has to be understood identically for persons belonging to all religious faiths in the secular polity. Where the interpretor has elbow room, he must invoke the power of interpretation as a functionary of the State consistent with the mandate of Article 44 of the Constitution. The interpretor need not wait for the Parliament to enact a uniform civil code. Till that is done by the Parliament, the interpretor as a functionary of the State must draw inspiration from Article 44 of the Constitution in performing the duty/power of interpretation. So reckoned the duty to maintain the unmarried daughters under the personal law must in the present day Indian context include the obligation to meet the marriage expenses of the unmarried daughters. For all members of the Indian polity, this has to apply. The Muslim father also, we hence hold, has the obligation to pay/meet the marriage expenses of his unmarried daughter. We must hasten to observe that the right/duty is only to meet the reasonable expenses, that too only when the daughter is dependent on the father.

HIGH COURT OF KERALA
Ismayil Vs. Fathima
Citation : 2011 (4) KLT 40 : ILR 2011 (3) Ker. 961
CoramThe Hon’ble MR. Justice R.BASANT, The Hon’ble MR. Justice K. Surendra Mohan
Dated: 6/9/2011
Case No. : W.P. (C) No. 28433 of 2010 (R)

How is the concept of maintenance to an unmarried adult daughter to be unmarried adult daughter to be understood? Does that conceptually include the obligation to meet the marriage expenses of an adult daughter? Is the concept of maintenance payable by a Muslim father to his adult daughter to be understood differently? These are the questions that arise for consideration in this writ petition.

2. Reference to the essential factual matrix may be relevant. The husband/father is the petitioner. His wife and daughter had filed O.P.No.1603/09 before the Family Court, Thrissur, claiming past and future maintenance to them as also the prospective marriage expenses of the daughter. This petition was filed under Sect.7 of the Family Courts Act. An amount of Rs.1,20,000/- towards past maintenance and maintenance at the rate of Rs.3,000/- per mensem for each towards future maintenance as also an amount of Rs.10,00,000/- as prospective marriage expenses of the adult major daughter aged 21 years were claimed.

3. Along with the said O.P. an application was filed for attachment of 50 cents of property belonging to the writ petitioner. That petition was allowed and attachment was effected. An application was filed by the petitioner for lifting the attachment. By the impugned order, the learned Judge rejected the application for lifting the attachment.

4. The petitioner claims to be aggrieved by the impugned order. Various contentions are raised. Inter alia, the crucial contention is raised that the Muslim father has no obligation to meet the marriage expenses of his adult daughter. The liability to maintain her does not include the liability to meet the marriage expenses. Whatever may be the liability of fathers similarly situated belonging to other religious denominations, the Muslim father has no such legal liability, contends the learned counsel for the petitioner. It is hence prayed that the impugned order may be set aside and the application for attachment may be rejected.

5. We found the question raised to be interesting. We requested the counsel to advance detailed arguments. We felt persuaded to seek the assistance of Sri. M.P.M. Aslam as amicus curiae. We must acknowledge the able services rendered by Sri. M.P.M. Aslam as amicus curiae to this Court.

6. The learned amicus curiae first of all submits that it is not necessary to consider the claim for marriage expenses of the daughter as an incident of the right of maintenance. The learned counsel accepts that the Muslim father in the Indian context undoubtedly has the moral obligation to ensure that his daughter is married and to meet expenses for such marriage. Sri. Aslam argues that it is not necessary to treat this as an incident of the right of maintenance of the daughter. It is enough if the same is considered as an obligation imposed by custom or usage. Sri. Aslam argues that if such an approach is made., it will be unnecessary to refer to the provisions of the Muslim Personal Law (Shariat) Application Act 1937, to justify such a direction for payment of marriage expenses. According to Sri. Aslam, under Sec.2 of the Muslim Personal Law (Shariat) Application Act, the Personal Law of Muslims is made applicable only in respect of certain specified matters. Maintenance is one such matter. If the right to claim marriage expenses is reckoned as an incident of the right to maintenance, the direction to pay the same will have to be justified under the Muslim Personal Law. Otherwise, if the claim is reckoned as one based on custom or usage, there shall be no obligation to justify the direction for payment of marriage expenses under the Muslim Personal Law (Shariat).

We extract Sec.2 of the Muslim Personal Law (Shariat) Application Act below:
“2. Application of Personal Law to Muslims. – Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”
(emphasis supplied)
8. There is no plea founded on custom or usage in the facts and circumstances of this case. We are hence of the opinion that our burden to tackle the issue squarely under the personal law relating to maintenance cannot be skirted or avoided by resort to the course suggested by Sri. Aslam. Whether a direction to pay the marriage expenses of the daughter can be justified on the basis of the custom or usage does not hence fall for consideration before us in this petition. Moreover, if payment of such expenses would fall within the sweep of the expression ‘maintenance’ for other communities, for the Muslim community alone a different meaning cannot be assigned. We shall hence try to ascertain whether such marriage expenses is included in the concept of maintenance under the personal law.

9. There is no semblance of doubt on the question that the Muslim father has the obligation to pay maintenance to his unmarried adult daughter. The text by Mulla under the heading “Maintenance” in paragraph – 369 and 370 which we extract below makes the position crystal clear:
“369. Maintenance defined. –

“Maintenance” in this Chapter includes food, raiment and lodging.

370. Maintenance of children and grandchildren. – (1)) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (s.352) does not relieve the father from the obligation of maintaining them (a). But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.
(2) If the father is poor; and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.
(3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances.”

(emphasis supplied)
A Muslim father is hence undoubtedly liable under his personal law to pay maintenance to his unmarried daughter – whether major or minor.

10. The crucial question is whether the right for maintenance includes the right to claim marriage expenses. That is the question which we will have to squarely tackle now.

11. ‘Maintenance’, it has repeatedly been held, includes food, raiment and lodging. Mulla in Sec.369 accepts the same. It is an inclusive explanation of the concept. It is not exhaustive. It is only indicative. Other liabilities are also included within the sweep of the concept of maintenance. Courts had occasion to consider whether medical expenses, educational expenses etc., can also go into and constitute the concept of maintenance. In this context three decisions of the Gauhati, Sind and Calcutta High Courts appear to be relevant. In Ahmadellah v. Mafizuddin Ahmad (AIR 1973 Gauhati 56); Tekchand Partabrai v. Kalavantibai ((28) AIR 1941 Sind 214) and Purnasashi Devi v. Nagendra Nath (AIR (37) 1950 Calcutta 465) the courts have realized the need to take within the wings of the right of maintenance not only food, raiment and lodging but also all other necessary expenses for the metal and physical wellbeing of the recipient. In this is included all expenses for complete discharge of the duty of the obligee to the claimant. That duty arises from the responsibility of the obligee as father and the need of the person claiming the right.

12. What we intend to emphasis is only that the obligation of the Muslim father to maintain his unmarried daughter whether major or minor must be understood realistically. It must include all expenses for the complete discharge of the duty of the father to the daughter. It must and does include all necessary expenses for the physical and mental well being of the child.

13. The question is whether such obligation would include the obligation to meet the marriage expenses of the daughter. So far as the Hindu father is concerned, there can be not a trace of doubt as Sec.3(b) of the Hindu Adoptions and Maintenance Act, 1956 which obliges the father to maintain his unmarried daughter specifically includes the right of the claimant for marriage expenses. We extract Sec.3(b) below:
“3. Definitions. – In this Act, unless the context otherwise requires, —
(a) xxxxx
(b) “Maintenance” includes –
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment.
(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.”
14. A Bench of five Judges of this Court in Mathew Varghese v. Rosamma Varghese (2003 (3) KLT 6) had occasion to consider whether even in the absence of a contract, principle of personal law or a specific statutory stipulation, the parent/father has the duty to maintain his child. Drawing inspiration from Art.21 of the Constitution, it has been held in paragraph-86 of the said judgment that every father whatever be his religious denomination and father has the indisputable liability to maintain his child. That question was considered in the light of the duty/obligation of a Christian father to maintain his minor child. That decision does not specifically consider whether the obligation to maintain would include the obligation to give the daughter in marriage and to meet the consequent marriage expenses. We have referred to the said decision only to point out that if the concept of maintenance would include the marriage expenses of the daughter then absence of a stipulation in the Personal Law obliging payment of such expenses (maintenance) is no reason for a father to avoid the liability to meet expenses in connection with the marriage of his daughter. If there is no contract, legal principle, personal law stipulation or statutory prescription the right to maintenance of the daughter can be held to flow from the fountain stream of the all encompassing fundamental right to life guaranteed under Art.21 of the Constitution, the mother law. Mathew Varghese (supra) makes the position crystal clear.

15. Law cannot be far removed from life and therefore it will be necessary to understand the right/obligation to maintain a daughter in the light of the existing situation in the Indian society. We may hasten to observe that we are only trying to find out whether expenses relating to marriage are necessary expenses for the mental and physical well being of the claimant/unmarried daughter. In the present level of emancipation of the Indian woman it is impossible to accept that an unmarried daughter can fend for herself and enter into matrimony without the support and patronage of her father/parent. Even if she is able to choose a bridegroom for herself, it is common knowledge that marriage expenses are met by the father. All fathers to whichsoever religious denomination he may belong, does certainly perceive the responsibility in the Indian society of the present day to give his daughter in marriage when she attains the age of marriage. What we intend to note is that consistent with the mandate of Art.21 of the Constitution as accepted by the Full Bench in Mathew Varghese (supra), maintenance is the right of the child. Such maintenance does and must include all expenses for the mental and physical well being of the child and so far as the unmarried daughter is concerned her marriage is also something essential and necessary for the mental and physical well being of the child. Therefore, we feel that the right to marriage expenses can certainly be included in the concept of maintenance which a father is liable to provide for his unmarried daughter. We do promptly note that the entitlement is only for reasonable amount and is available to only an unmarried daughter who does not have means of her own to meet the marriage expenses. Such right is only against the father who has the requisite means.

16. This right/obligation to maintenance has to be understood in the Indian context today. Law must resonate to the frequency and wave length of the times. The concept of maintenance has to be understood in the Indian context of today. The practice of a bygone age when girls were never sent to school cannot persuade the court to hold that girls are not entitled to educational expenses as part of maintenance. Similarly, the concept of the right to maintenance in the present day in the Indian society cannot be attempted to be understood and interpreted under conditions that prevailed in medieval Arabia. Islam’s is a marriage to the whole universe. The revelations made by the Lord though the prophet must have relevant at all times and in every part of the universe. Whether the father in Saudi Arabia during ancient periods had the obligation to meet the marriage expenses of his daughter is irrelevant. Maintain his unmarried daughter, the Muslim father must, in response to his duty under the personal law. As to what would be the constituents of maintenance payable – at a given point of time in history and at a given geographical point, has to be understood realistically consistent with the norms and moorings of the society in the given situation.

17. There is not one precedent under Sec.125 of the Code of Criminal Procedure or its predecessor provisions which lays down that marriage expenses are included in the right of maintenance under that provision, it is argued. We find no merit in this argument at Maintenance under Sec.125 Cr.P.C. is available only for minor children. Ordinarily (unless they are disabled/debilitated) only a minor child is entitled for maintenance. Under Sec.125(c) Cr.P.C., only such adult children who, by reason of any physical or mental abnormality or injury, are unable to maintain themselves are entitled for maintenance under Sec.125 Cr.P.C.

18. Under the Child Marriage Restraint Act, a minor child cannot get married in accordance with law. Therefore, maintenance under Sec.125 Cr.P.C. cannot and should not include the marriage expenses as the right can arise only after a person attains marriageable age by which time the child would have walked out of the province of Sec.125 Cr.P.C. Absence of precedents under Sec.125 cannot, in these circumstances, afford any help. No specific precedent contra is brought to out notice also.

19. The above discussions lead us to the conclusion that it would be absolutely safe to include marriage expenses also within the sweep of the concept of maintenance of an adult unmarried daughter.

20. We are further of the opinion that the concept of maintenance though claimed under the respective Personal Law must yield to an uniform and common understanding of the concept. Conceptually maintenance cannot mean different things to the followers of different religions. In the secular republic of India unless there are compelling reasons the concept of maintenance has to be understood identically in its operation in relation to all communities and religions. The concept of equality and equal protection before law must also persuade us to give uniform and common meaning and interpretation to the expression maintenance under different Personal Laws. This is the mandate to us under Art.44 of the Constitution.

21. It would be idle to assume that Chapter IV of the Constitution speaks only to the executive and the legislature. Its command is addressed to all functionaries of the State. The judiciary is not an exception to that command. When attempts are made by courts to understand concepts by resort to the power of interpretation/adjudication, it is essential that the mandate under Article 44 – of uniform Personal Law for all sections of the community, is borne in mind and given effect to by the interpreter/adjudicator. Wherever there is elbow room available to a court, the court must and can only interpret the law in such a manner that the concept shall carry identical meaning and content to all sections of persons in the secular republic.

22. Sec.3(b) of the Hindu Adoptions and Maintenance Act which we have already extracted above clearly indicates the Parliament’s understanding of the concept of maintenance, in its application to the Hindus. The Hindu father and the Muslim father do both live in the same society with identical duties and obligations in the moral plane to his children. Under Art.21 of the Constitution as explained by Mathew Varghese (supra), they have identical constitutional obligations to their children also. Personal law obliges all fathers to maintain their unmarried daughters. We deem it unnecessary to interpretationally exempt the Muslim father from his responsibility to maintain his unmarried daughters. We deem it only proper and appropriate to include in that obligation, the obligation to meet the marriage expenses of his unmarried daughter.

23. We requested Advocate Sri. M.P.M. Aslam to enlighten us as to whether there is any text, commentary or precedents which can throw light on this specific aspect. The learned counsel Sri. M.P.M. Aslam submits that in this context it will only be proper and necessary to understand the distinction in the moral/legal obligation of a Muslim father in contra distinction to that of a Hindu father. The learned counsel contends that there is no concept of dowry/sthreedhana in a Muslim marriage. There is no obligation for the father to pay any dowry or sthreedhana to his daughter. Under the Muslim law dower is to be paid by the bridegroom to the bride. Even the marriage feast (walima) is to be performed by the bridegroom and not by the bride’s father. In these circumstances, there is no specific assistance available from the Quran, other subsidiary sources of Muslim law or from texts or precedents throwing specific light on this aspect, submits the learned counsel.

24. Dowry is an abuse which has been inherited by the Indian society for various historical reasons. The Hindu father also does not have the obligation to pay dowry. The prevalent abuse of payment of dowry is not certainly the foundation of the legal obligation to meet the marriage expenses of the daughter under Sec.2(b) of the Hindu Adoption and Maintenance Act. The abuse of dowry is prevalent both in the Hindu and in the Muslim communities. The fact that the Muslim father has no obligation to pay any dowry/sthreedhana under law and he (ie. his daughter) is entitled to receive dower from the bridegroom cannot, according to us, make any difference in our approach to the concept of maintenance for the Hindus and Muslims. They both live in the same society with identical abuses and advantages. The mere fact that the marriage conceptually is an indissoluble sacrament under the Hindu Law; whereas it is only a solemn contract under the Muslim law cannot in any way affect the obligation for maintenance of the unmarried daughter so far as the Muslim father is concerned.

25. The learned counsel Sri. M.P.M. Aslam submits that indirectly the Quran in two places makes declarations which may be helpful to us in the resolution of the controversy. The learned counsel, after elaborate reference to the relevant verses of the holy Quran, submits that there is no specific stipulation in the Quran either way about the obligation of the father to meet the marriage expenses of his unmarried daughter. The learned counsel draws our attention to Sura xxiv Ayat 32 of the Quran and submits that the responsibility is imposed on every religious Muslim and submits that the responsibility is imposed on every religious Muslim to ensure that those who are single are married. There is a declaration that those who are single must get married. This is the command not only to the ones who are to get married; it is a declaration of a moral principle that all those who are single should be given in marriage. We extract Sura xxiv Ayat 32 below as translated by Yusuf All. This verse indirectly declares the obligation of all to ensure that persons who are single are married. This can be reckoned as a command to the father to ensure that his unmarried daughter enters matrimony, points out the counsel.
“32. Marry those among you
Who are single, or
The virtuous ones among
Your slaves, male or female:
If they are in poverty,
God will give them
Means out of His grace:
For God encompasseth all,
And He knoweth all things.”
26. The learned counsel Sri. M.P.M. Aslam then points out that Sura iv Ayat 34 which also, according to the learned counsel, though only indirectly, declares the obligation of men to maintain women. Men who are protectors and maintainers of woman are bound to ensure that all acts for the physical, mental and moral requirements of women under their charge are discharged. That is the conduct expected from a Muslim under the holy Quran, submits counsel. We extract below Sura iv Ayat 34 (first part):
“34. Men are the protectors
And maintainers of women,
Because God has given
The one more (strength)
Than the other, and because
They support them
From their means.
Therefore the righteous women
Are devoutly obedient, and guard
In (the husband’s) absence
What God would have them guard.”
All counsel accept and we ourselves are unable to trace any specific relevant verses in the Quran which throw light on this aspect.

27. Sri. M.P.M. Aslam relying on the various texts and commentaries points out, and there is no dispute on that, that it is the responsibility/duty/obligation of the Muslim father to act as Wilayat (guardian in marriage) of his unmarried daughter. Even when a woman has attained puberty/majority she needs the help and assistance of her father to formally enter matrimony. The father must function as guardian on her behalf in such marriage to enable his daughter to enter into the contract of marriage. This paramount responsibility of the father as guardian at the time of marriage of his daughter must necessarily bring with it the corresponding obligation to ensure that all necessary expenses in connection with the marriage are met by him, points out the counsel.

28. We are of the opinion that the above stipulations in the Personal Law, though they do not afford direct assistance to us on this controversy, can also be relied on to reach the conclusion that the Muslim father has the indisputable obligation to maintain his unmarried daughter. We find it safe to proceed to further hold that he has the obligation to ensure that the unmarried daughter under his charge is given away in marriage properly. He hence has, we hold, the legal obligation to meet the reasonable marriage expenses of his daughter, as part of his obligation to pay maintenance to her.

29. Though not assisted by any specific precedent on this aspect, Sri. Aslam has traced a decision of the Kerala High Court in which the court recognizes the responsibility of the father to give his daughter in marriage and to claim necessary exemption from the provisions of the Gift Tax Act for the amounts so spent by him. A Division Bench of this Court headed by Mr. Justice C.N. Ramachandran Nair has taken the view in Meeran v. Dy. Commissioner of Income Tax (2010 (1) KLT 553) that the Muslim father is also entitled to claim exemption from the gift tax for gifts made by him on the occasion of the marriage of his daughter. The crucially relevant observations though only of indirect assistance appear in paragraph-3 of the said judgment which we extract below:
“In our view, it is the desire of every father, whether he is member of the Hindu community or Muslim community, to have his daughter married in the best manner possible and naturally people look persons for marrying their daughters who hold the same status, position etc., in the society as they have. Even though under Muslim law marriage is a contract, no one can expect a grown up girl to go and negotiate and enter into contract for marriage by herself. It is common knowledge that like member of any other community it is the father and the family members who arrange the marriage for the girl, no matter the Muslim marriage is treated as a contract. We are, therefore, unable to agree with the view expressed by the Madras High Court that since Muslim marriage is a contract, father is not obliged to give any gift at the time of marriage and so much so, gift given by Muslim father at the time of marriage of his daughter is not comparable with the gift given by a Hindu father because under Hindu law, it is the obligation of the father to maintain his daughter which includes giving her in marriage.”
28. The above discussions lead us to the conclusion that the right/obligation to maintain the unmarried daughter includes the right/obligation to meet the marriage expenses of the unmarried daughters. This is so for all fathers – be they Hindus, Muslims, Christians or others. We adopt the following process of reasoning to reach that conclusion. They all have the duty under their personal law to maintain their children. Even ignoring the personal law, as declared in Mathew Varghese (supra), such a right/duty can be spelt out from Article 21 of the Constitution. Duty to maintain is not limited to provide for food, raiment and lodging. It includes the duty of the obligee to do all acts for the physical, mental and moral well being of the child. That duty has to be understood in the context of the Indian society in the modern constitutional republic. The concept has to be understood identically for persons belonging to all religious faiths in the secular polity. Where the interpretor has elbow room, he must invoke the power of interpretation as a functionary of the State consistent with the mandate of Article 44 of the Constitution. The interpretor need not wait for the Parliament to enact a uniform civil code. Till that is done by the Parliament, the interpretor as a functionary of the State must draw inspiration from Article 44 of the Constitution in performing the duty/power of interpretation. So reckoned the duty to maintain the unmarried daughters under the personal law must in the present day Indian context include the obligation to meet the marriage expenses of the unmarried daughters. For all members of the Indian polity, this has to apply. The Muslim father also, we hence hold, has the obligation to pay/meet the marriage expenses of his unmarried daughter. We must hasten to observe that the right/duty is only to meet the reasonable expenses, that too only when the daughter is dependent on the father.

29. Having held so, we do not find any reason to interfere with the impugned order. The petitioner certainly has the intention to dispose of the property under attachment. Even according to him, the value of the property, notwithstanding the disputes about its value, is only meagre and the attachment cannot be said to be excessive considering the magnitude and reasonableness of the claim.

30. This Writ Petition is accordingly dismissed.

Landmark Supreme Court Judgment on Sec 138 of Negotiable Instruments Act

Landmark Supreme Court Judgment on Sec 138 of Negotiable Instruments Act

Supreme Court Changes ground rule under Section 138 of Negotiable Instruments Act to prosecute a person who had presented the cheque which bounced for insufficiency of funds. Through this judgment, SC provides relief to the holders of bounced cheques under the provisions of the Negotiable Instruments Act

 

cheque bounce

 

 What is a Negotiable Instrument?

The word negotiable means ‘transferable by delivery’ and the word instrument means ‘a written document by which a right is created in favour of some person’. The transfer should be unrestricted and in good faith.
Therefore, a negotiable instrument is a document guaranteeing the payment of a specific amount of money, either on demand, or at a set time, with the payer named on the document. It is an indebtedness to pay an amount and the negotiable instrument is an unconditional guarantee for the same.

Some Examples of Negotiable instruments are Promissory notes, Cheques, Bills of Exchange, bearer bonds, bank notes etc.

The Indian law on Negotiable instruments is governed by the Negotiable Instruments Act of 1881.

About the Act

The Negotiable Instruments Act 1881 was passed in 1882 and was amended in 1989 and 2002, Before 1988 there was no provision to restrain the person issuing the Cheque without having sufficient funds in his account. The only remedy against a Dishonoured cheque was a civil liability accrued. In order to ensure promptitude and remedy against the defaulters of the Negotiable Instrument a criminal remedy of penalty was inserted in Negotiable Instruments Act, 1881 by amending it with Negotiable Instruments Act, 1988. The second noteworthy amendment was when the parliament enacted the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 which is intended to plug the loopholes. This amendment Act inserts five new sections from 143 to 147 touching various limbs of the parent Act. This act is applicable to the whole of India including the state of Jammu and Kashmir, which was brought under the purview of the act in 1956.

Objective

The objective of the act is to define the various negotiable instruments such a, promissory notes, bills of exchange, cheque etc. Also to prescribe the liability in case of a failure of the instrument to fulfill its debt due to the default on the part of the payer or to curb scrupulous practices adopted to escape liability in respect of negotiable instruments. However, Section 138 in regard to dishonor of cheque attracts criminal liability.

Law on Negotiable Instrument, Section 138

It is manifest that to constitute an offense under Section 138 of the Act; the following ingredients are required to be fulfilled:

  1. a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account
  2. the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
  3. that cheque has been presented to bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
  4. that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
  5. the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
  6. the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;

To put it in simpler terms the law stated that the person must owe some amount of money to another and draws a cheque in that regard to fulfil that liability, the cheque be drawn on an account in a bank by him. The cheque was then presented to the bank within 3 months of the date on which it is drawn. However due to insufficiency of funds the cheque is returned by the bank unpaid. The payee (the bank) makes a demand for payment of said amount which the person owed within 30 days of the information received by him (the person who owed the money) that the cheque was returned unpaid; and thereafter the person fails to pay the amount within 15 days of the notice by the bank.

Latest Law

By a landmark judgment, Dashrath Roopsingh Rathod Vs. Stae of Maharashtra & Anr.

In this case, the Supreme Court has changed the basic criteria under Section 138 of Negotiable Instruments Act which is to prosecute a person who had presented the cheque which had been returned due to insufficiency of funds or if the amount exceeds the amount in the bank of the payer.

Earlier, a case under Section 138 could be initiated by the holder of the cheque at his place of business or residence. But, a bench of justices TS Thakur, Vikramjit Sen and C Nagappan ruled that the case has to be initiated at the place where the branch of the bank on which the cheque was drawn is located.

And the judgment would apply retrospectively. This means, lakhs of cases pending in various courts across the country would witness a interstate transfer of cheque bouncing cases.

The bench said: “In this analysis, we hold that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank is located.”

Example: Mr. X who resides in Chennai owes Rs. 1 Lakh to Mr. B who resides in Chandigarh, Mr. X issues a cheque in delhi in favour of Mr. B. The cheque bounces in Ludhiana (place of bank where the cheque is given by Mr. B) for insufficiency of funds.

According to the earlier law Mr. X could have chosen any of the four places. But by the recent judgment the only place for institution of case would be Ludhiana, i.e. where the cheque has dishonored at the payee bank which is located in Ludhiana in this example.

Reasons for passing the new law

The rationale behind this change is that the payers majority being businessmen and traders were using extending credit recklessly and due to the leniency in the provision of Section 138, it was being misused in regards to the place of institution, as sometime the payer had no concern with the place where the cheque was issued and to unnecessarily harass the payee cause hardship of place of institution of case according to their convenience. To curb this practice this judgment aims to get to the root of the issue and resolve it by a strict approach so as to discourage the payer from misusing or carelessly issuing cheques. The hardship of traveling to the location of drawee bank is now on the payer.

The change in the existing law shifts the inconvenience and hardship on the payer because now he would have to travel to the place of the drawee bank where the cheque gets dishonored due to insufficiency of funds. Hence, guaranteeing more precaution by the payer at the time of issuing the cheque.….

 

Jolly LLB 2

The Supreme Court on Friday refused to put on hold the screening of “Jolly LLB 2” before a three-member panel appointed by the Bombay High Court. The bench of Justice Ranjan Gogoi and Justice Ashok Bhushan asked the petitioner Fox Star Studios to approach the High Court and advance all its contentions before it. The bench asked the High Court to hear the matter on Monday – February 6 – allowing film producer Fox Star Studios to come before it on Tuesday – February 7.

The film is set for release on February 10. “We are keeping it pending,” the bench told senior counsel Kapil Sibal as he said that the film was cleared for release by the Central Board of Film Certification (CBFC) and under the law, the screening of the film before the panel comprising two lawyers and a doctor could not be done.

“Go and tell this to the High Court,” Justice Gogoi told Sibal. “We will not say anything. We will keep it pending. Go to the High Court.”

As Sibal urged the bench to see the film, Justice Gogoi said “We will not see the film. We will tell you why we will not see the film. We don’t have three hours’ patience. Don’t you think that three hours is too long.” The Aurangabad bench of the Bombay High Court set up the committee to see the film after a Nanded lawyer, Ajaykumar Waghmare, told the court that the film was an attempt to portray the country’s legal profession and the judicial system in a poor light.

It is “an attempt to portray the Indian legal profession and judicial system as a laughing stock to society at large”, Waghmare told the High Court. The High Court directed for the review of the film by the panel on February 1 and set the next hearing on February 3.

BCI or jk HCBA… developments

BCI notifies/publication of J&K Bar Council Rules as per 1961 Advocates Act in Official Gazette on SC intervention
The Bar Council of India today made a submission before a division bench of the Supreme Court of India headed by the Hon’ble Chief Justice of India, Mr. Jagdish Singh Khehar submitting to the direction of the Supreme Court of India to hold election to the Bar Council of J&K for the first time in accordance with the Advocates Act, 1961 which was introduced in J&K in 1986 but not implemented till date.
Prof.Bhim Singh in the latest writ petition which he filed in 2013 came for hearing today before the bench of the Hon’ble Chief Justice with Mr. Justice N.V. Ramana and Mr. Justice D.Y. Chandrachud. The court had directed the Union of India to issue notification as per resolution of the Bar Council of India which had framed the Constitution for J&K Bar Council on the instructions of the Supreme Court in the writ petition, “Bhim Singh vs. Union of India and Ors.”. The Union of India had declined to notify the direction/order of the Bar Council of India in this regard on the pretext that the situation in Kashmir was not conducive to hold election to the Bar Council of J&K. Prof.Bhim Singh had strongly protested against this authoritarian decision of the Union of India and urged the Supreme Court of India to issue appropriate direction for the enforcement of the resolution passed by the Bar Council of India to hold election to the Bar Council of J&K which has been the practice in all the states/provinces of the Union of India.
The Supreme Court had directed the Bar Council to explain their position this day, 3rd February, 2017.
The Bar Council instead of arguing against the writ petition of Prof.Bhim Singh submitted a letter signed by Bar Council of India and forwarded for publication in the Govt. Gazette at the earliest. The letter stated that,
“It may be kindly noted that the Bar Council of India is a statutory body constituted under the Advocates Act, 1961. It is an autonomous body and does not fall under any Ministry of the Government as per the Advocates Act, 1961. The Advocates Act, 1961 empowers Bar Council of India to lay down its own rules and to also approve rules made by the State Bar Councils as per Section 7, Section 15 (3) and Section 49 of the Advocates Act, 1961. Thus, the rule made or approved by the Bar Council of India is/are not required to be approved by any Ministry.
Therefore, the aforesaid rules made by Jammu and Kashmir High Court (discharging functions of State Bar Council in absence of the same in the concerned State) duly approved by the Bar Council of India under Section 15(3) read with Section 49 of the Advocates Act, 1961 may be immediately published in the Official Gazette.”
Prof.Bhim Singh expressed gratitude to the Supreme Court and the Hon’ble Chief Justice for giving a chance to the lawyers fraternity in J&K to share the privileges granted under the Advocates Act, 1961 and elect their own Bar Council for the first time after 56 years of the implementation of Advocates Act, 1961. Prof.Bhim Singh said that the Supreme Court shall announce its final order tomorrow, i.e. 6thFebruary, 2017, which may go down in the history of J&K as a victory day for the lawyers fraternity.

Muslim law of succession

Muslim law of succession constitutes four sources of Islamic law –

1.The Holy Koran
2. The Sunna –  that is, the practice of the Prophet
3. The Ijma – that is, the consensus of the learned men of the community on what should be the decision on a particular point
4.  The Qiya –  that is, an analogical deduction of what is right and just in accordance with the good principles laid down by God.

Muslim law recognizes two types of heirs, Sharers and Residuaries. Sharers are the ones who are entitled to certain share in the deceased’s property and Residuaries would take up the share in the property that is left over after the sharers have taken their part.

Sharers:

The Sharers are 12 in number and are as follows: (1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son (or son’s son or son’s son and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8) Grandmother on the male line, (9) Full sister (10) Consanguine sister (11) Uterine sister, and (12) Uterine brother.

The share taken by each sharer will vary in certain conditions.  For instance, a wife takes 1/4th of share in a case where the couple are without lineal descendants, and a one-eighth share otherwise. A husband (in the case of succession to the wife’s estate) takes a half share in a case where the couple are without lineal descendants, and a one-fourth share otherwise.  A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-thirds.

If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become residuaries instead, with the residue being so distributed as to ensure that each son gets double of what each daughter gets.

Non Testamentary and Testamentary succession under Muslim law:

In Non testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On the other hand, in case of a person who dies testate i.e. one who has created his will before death, the inheritance is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis.

In cases where the subject matter of property is an immovable property, situated in the state of West Bengal, Chennai and Bombay, the Muslims shall be bound by the Indian Succession Act, 1925. This exception is only for the purposes of testamentary succession.

Birth right:

inheritance of property in Muslim law comes only after the death of a person, any  child born into a Muslim family does not get his right to property on his birth. If an heir lives even after the death of the ancestor, he becomes a legal heir and is therefore entitled to a share in property. However, if the apparent heir does not survive his ancestor, then no such right of inheritance or share in the property shall exist.

Distribution of the Property:

Under the Muslim law, distribution of property can be made in two ways – per capita or per strip distribution.
Per capita distribution method is majorly used in the Sunni law. According to this method, the estate left over by the ancestors gets equally distributed among the heirs. Therefore, the share of each person depends on the number of heirs.

Per strip distribution method is recognised in the Shia law. According to this method of property inheritance, the property gets distributed among the heirs according to the strip they belong to. Hence the quantum of their inheritance also depends upon the branch and the number of persons that belong to the branch.

Rights of females:

Muslim does not create any distinction between the rights of men and women. On the death of their ancestor, nothing can prevent both girl and boy child to become the legal heirs of inheritable property. However, it is generally found that the quantum of share of female heir is half of that of the male heirs. Reason behind this is that under the Muslim law a female shall upon marriage receive mehr and maintenance from her husband whereas males will have only the property of the ancestors for inheritance. Also, males have the duty of maintaining their wife and children.

Widow’s right to succession:

Under Muslim law, no widow is excluded from succession. A childless Muslim widow is entitled to one-fourth of the property of the deceased husband, after meeting his funeral and legal expenses and debts. However, a widow who has children or grandchildren is entitled to one-eighth of the deceased husband’s property. If a Muslim man marries during an illness and subsequently dies of that medical condition without brief recovery or consummating the marriage, his widow has no right of inheritance. But if her ailing husband divorces her and afterwards, he dies from that illness, the widow’s right to a share of inheritance continues until she remarries.

A Child in the Womb:

A child in the womb of its mother is competent to inherit provided it is born alive. A child in embryo is regarded as a living person and, as such, the property vests immediately in that child. But, if such a child in the womb is not born alive, the share already vested in it is divested and, it is presumed as if there was no such heir (in the womb) at all.

Escheat:

Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by Government through the process of escheat.

Marriage under the Special Marriage Act, 1954:

Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he ceases to be a Muslim for purposes of inheritance. Accordingly, after the death of such a Muslim his (or her) properties do not devolve under Muslim law of inheritance. The inheritance of the properties of such Muslims is governed by the provisions of the Indian Succession Act, 1925 and Muslim law of inheritance is not applicable.

 

These guides are not legal advice, nor a substitute for a lawyer

These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.