SEXUAL ATTRACTION AND LOVE:- A DEEP ANALYSIS IS NEEDED TO AVOID MOST OCCURRED CRIMES

DATE:- 13.06.2016

Preface:  

Is Sexual attraction really a Love? 

Can you differentiate between Love and Sexual Attraction along with analysis of both situations? 

It is need of the time. In the teen age, youngsters often attract towards each other. A good looking face, smart guy, costly mobiles, long drive on motorbikes & motorcars, expansive shopping at shopping malls, night club parties,  fashionable apparels etc. are the high expecting dreams of teenagers. These things may attract somebody at the first instance but we did not apply our mind to think what is wrong or right. The basic reason is that we attract towards these material things without making any analysis of this attraction. Even most of the teenagers do not shy to accept sex before marriage. They treat with sex just like as a play without bothering worst consequences. Attraction towards good looking faces, smart way of talking by some body, girls indulge in modern life style is just starting of a blunder mistake which after wards turns your whole life into darkness.

Now-a-days, it becomes a culture that youngsters studying in universities or colleges and adults working in the offices attracts towards somebody having opposite sex of them due to various reasons. They think that they fall in love with that person and their mind stop thinking about all other things but only that person. Mostly person fails to identify that it is not a perfect love and do the common mistake.

Youngsters like to wear fancy clothes and indulge themselves in the life style of fashion to look smart and beautiful. Boys used to purchase expensive and branded clothes to impress to the girls to whom they like. Girls spent more than half a day to wear designer clothes, make-up their faces, designing and shading the hairs, to wear costly jewellery etc. instead of spending their valuable time in other useful activities. I am not straight forward criticizing these things, but I want to say that these activities should be done in a restrictive manner. By this article, I just want to indulge everybody (mainly the youngsters) into the deep study of Love and Sexual attraction, which I think, may help us to control the increasing crime rate in our Country. It is need of the time to think over this issue by the youngsters, who themselves are the main victims of the today’s crimes.

Sexual Appeal & Meaning of Love:

Do you know what Love is? Sexual attraction is not love at all. Love is meant to understand the other, to help the other, to sacrifice everything for somebody else, to lose the game of life for others, to surrender our self physically and psychologically in the custody of another person, to stop using the mind & to start listening to our heart only, to adjust with another, to add somebody into your thoughts, mind and in your whole life. Love is meant that you & your love are one but all things may or may not happen in the case of sexual attraction.  You may attract towards a beautiful looking girl or a smart guy or somebody may attract towards you due to your good features. But this attraction turns into love or not, it cannot be said in plain words at the first instance. Mostly we fail to make a difference between love and sexual attraction, which results into dire consequences. It is not necessary for a boy that he will love to a beautiful girl, a modern girl, a girl influenced by the European culture or girl wearing transparent clothes or short skirts but he may attracts sexually towards her. This is the same case for girls also and it is not necessary that a girl must love to a boy who is smart & young, a boy wearing branded clothes, a boy having expensive motorbike or car but she may also attracts sexually towards his good looking body physique. The philosophy of Love is totally different. Increasing tendency of marriage breakdowns and other related crimes & issues can be controlled by this study. The Society can be saved to be ruin in the colours of marriage breakdowns and other related issues.

The inability of differentiation between Love and Sexual Attraction is affecting the society in many ways. One is more and more people are becoming victims of this disease, second is the purity of Love is lessening day by day. Love cannot be compared by shrink values. The place of theory of Love is very high. You may love to any person i.e. your life partner, your parents, your Childs, your assets & property etc. In case of Love with your life partner, you must be sure that it should be pure love only and not just sexual attraction. Sexual attraction may turns into love but only after passing a long time.   

Love at first Sight: 

Normally it is presumed that we cannot forget our first love, I want to add in these lines that it must be love and love only and not the sexual attraction. Whenever we see a new face and attracts towards him/ her due to his/ her good appearance or good way of talking, we assumes that we fall in love at first sight, but it not so. We attracted towards that person only due to the good looking features or good personality of that person. According to my views, you cannot love a person without understanding him/ her. Until and unless you did not spent some time with other, did not try to understand that other person and did not have any feeling of sacrifice for that other person to whom your heart claims to be your love, love may not happen in actual.

Inability to differentiate Love and sexual attraction: 

There are several reasons, which make us unable to differentiate between love and sexual attraction. One is teenage and second is lack of control on our mind. It is very clear that we are not fully able to take the important decisions of our life at teenage and very often we do the common mistake. We have a little experience of life at our teenage and our mind is not static. We fail to check that what is right or wrong due to immaturity.     

Some Guys, Girls ruin their career due to this immaturity and due to any mistake done in the influence of love, which is sexual attraction only and not love in actual.

Work place environments: 

Sexual attraction is main root cause of sexual harassment at work place also. In today work places, men and women are working together at the same offices and mostly women so working are victims of the sexual harassment at work place. Even some people did not want to understand that “yes means yes” & “no means no” and they engaged to exploit to the women and takes undue benefit of their dominion position. Modesty is the property of the women and no one is allowed to outrage the modesty of any women. The same is punishable also under sec – 354 of IPC.

Social Approach: 

Marriage breakdowns, extra marital affairs, love affairs prior to marriage and sex before marriage, live in relationships etc are some factors which defame our self in the society. There is a steep rise in the cases of mental tension, depression, heart attack, suicides etc due to the above factors. These factors degrade one person or his/ her family in the society.

Rising in marriage breakdown: 

According to the govt. data, divorcee cases/ marriage breakdown cases increased in multiple no’s in last few years. Love marriages are more prone to these accidents. This does not mean that I am against the love marriages, but the decision taken hastily by the youngsters without applying any practical mind results into failure of marriages. Although the situation is more adverse in the arrange marriages. No chance to understand your partner prior to your marriage have many cons. Surrender yourself to a stranger for the whole life may turns your life into worst situations.

Live in relationship & same sex marriage: 

My theory without touching these topics is incomplete. Sometimes I compelled to think that, “whether we are moving in a right direction”? The answer is not so simple and it needs a separate study in detail and covers many aspects of wrong evils of our society. Here I want to make a brief reference to this approach. Live in relationship, same sex marriage, sex before marriages are on high demands by new generations. Youth is agitating on roads to legalize these acts throughout the India. Is it right direction? Is it our culture? Should we move ahead in this direction by labelling this as a modern society or the demand of open mind society? Youngsters want to live in boundaryless society, but by this they are giving birth to many other worst evils in the same society. How can these new issues be settle, it is debateable on the national table.  

Sexual Education: 

It is the need of the time to provide the sexual education along with psychological aspect to the youngsters which makes them enable to differentiate between right or wrong. Sexual education helps to the youngsters to save themselves from serious diseases related to sexual problems, AIDS etc and give awareness on the related issues.

Legal Approach: 

Inability of making differentiation between love and sexual attraction give births to many wrong evils, which results into crimes. Sexual harassment at workplace, acid attack, outraging of modesty, marriage breakdowns, illegitimate Child's and issues related to their legitimacy & their property rights, suicide cases etc are all by-products of this inefficiency or immaturity. If we try to understand this concept and make our society enable to understand this philosophy, then we can curb crimes up to some extent. But there is much need of work to be done in this direction. We should arrange national seminars & group discussions in the Colleges, provide sexual education with psychological aspect to the youngsters, make our laws more stringent to nail these issues. 

These are my personal views and I want national attention on this issue.

Reference:- Lawyers Club Of India

ARE WE REALLY FREE AND ENJOYING OUR LIBRTY...???? (Article 21)

Date:- 03.06.2016

Article 21 is the milestone to the Indian constitution. Among all the fundamental rights, it is considered as one of the most important and unique. It not only provides us the right to move freely but also provides a unique identity to its people. This article has seen many changes since from the date of its incorporation in the constitution. And according to me the changes made were good. The people of this country have a lot of expectations from this article as this article has been turned into a safeguard against arbitrary legislation. The scope of this Article 21 have been expands over the years through judicial pronouncements over the years.

I humbly accept all the provisions which have been stated in our great Indian Constitution related with this article 21. But the main purpose of writing this paper is to show that whether these provisions are really implemented or lawfully followed by the legislators and executives. When I first read about my rights, I was very much happy and proud that the great framers of our Constitution provided us an immunity and protection against the ill diseases of the state. They never let us realised that we the people are common and the bureaucrats and the leaders governing the state are very special and important. They always tried to show us and assure that the bureaucrats and leaders are for us, there work is to protect us, watch every people from same eye, to punish such people who are against the laws of our country and disturb the peace of our society, to provide equal opportunity to everyone according to the provisions stated by the constitution.

     

But when I see the situations around me I feel at that moment that all the provisions and laws are only for name. There is still a huge gap between a VIP and a common person. The reality is that we are not equal. The Article 14 of Indian Constitution that states, equality before the law and equal protection of law, are not equal for all in our country as I feel. If there is equality then why it happens that a person having MBA degree or B.Tech degree or Phd. are applying for the posts of peons and why such people who don’t have any good grades and eligible qualifications have occupied very responsible and important chairs. Why it happens that the Police have to struggle months to catch a murderer or any criminal but when a VIP’s dog is lost then it is being traced within hours. The common prisoners’ in jail have to wait years and years to get out from jail on parole only for few days, but when a Film Star or any other big VIP is in jail they easily gets parole of even one month. Is it equality? If yes, then honestly speaking I don’t need the immunity of Article 14.

    

I would not blame the guardian of the Indian Constitution i.e. the Supreme Court because it had taken all the necessary precautions to safeguard the rights of the people of India.  In the famous case of A.K. Gopalan v. State of Madras, (1950) SCR 88, the Apex Court held that protection under Article 21 is available only against arbitrary executive action and not against arbitrary legislative action. In the same case the Apex Court held that personal liberty would only mean liberty relating to the person or body of the individual.

However, in the landmark case of Maneka Gandhi v. U.O.I, AIR 1978 SC 597, The Apex Court overruled its judgment in the Gopalan Case by widely interpreting Article 21. It stated that the protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action. It pronounced the expression ‘Personal Liberty’ in Article 21 is of the widest amplitude and it covers a wide range of rights that go to constitute the personal liberties of man.

      

We have a right to move freely in any place which is lawful and not restricted by law. But many times I have seen that all the shops, schools and colleges are forcibly closed by the political supporters of different political parties. Generally we used to see “Dharna and Band” where the supporters on the order of their leaders used to completely stops everything because of which we the common people have to face many difficulties. We are not allowed to move freely at that time only because of the supporters of the legislators.

There is a part of Article 21 i.e. Article 21A, which was inserted in the constitution by the Eighty-sixth Amendment Act, 2002. This Article provides that-

“The state shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the state may by law, determine.” 

This Article also states that the child should not be restricted only to free and compulsory education, but it should be extended to have quality education without discrimination on the ground of child’s economic, social and cultural background.

But it seems that the situation is quite different. The education system in India especially government sponsored institutions are in a pathetic condition. The reality is that there is school buildings in rural areas no doubt about this, but there is no teacher in that schools to teach the students. There is no systematic education system in rural areas where there is the maximum number of children between the age group of 6-14 who are entitled for free education under Article 21A. The quality of teachers in such elementary and primary schools is so poor that the teachers are required to be getting admitted again in schools. The quality of education in such areas are very much poor. The main reasons behind this are poverty, lack of good teachers, and lack of proper infrastructure facilities etc.

The main motive of writing this paper is not to count the drawbacks of the fundamental rights but to show that the dreams which the great framers of our constitution seen for the people of India has been completely reversed.

Reference:- Lawyers Club Of India

Contributed by Satyam Mishra

WHETHER TWO FIR LEGALLY PERMISSIBLE.....???

Date:- 16.05.2016


WHETHER SECOND FIR IS LEGALLY PERMISSIBLE....?

TWO FIR:-

Sub Section (1) of Section 154 Cr. P.C. requires that every information relating to the commission of a cognizable offence, whether given orally or otherwise to the officer-in-charge of police station, has to be reduced to writing by him or under the direction of such officer and shall be signed by the person giving such information.

It reads as under :-

"154. Information in cognizable cases:-

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in book to be kept by such officer in such form as the State Government may prescribe in this behalf."

On plain reading of subsection (1) of Section 154 Cr.P.C. it cannot be construed that there can be more than one FIR about an occurrence. The first information is that information which is given to the police first in point of time, on the basisi of which the investigation commences, However, it has to be examined on the merits of each case whether subsequently registered FIR is second FIR about the same incident or the offence is based on distinguished and different different facts and whether or not its scope of inquiry is entirely different.

What should be the contents of FIR

In T.T. Antony Vs. State of Kerala & Ors. [(2001) 6 SCC 181], the Supreme Court dealt with a case wherein respect of the same cognizable offence and same two FIRs had been lodged and the Court held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences.

The investigating agency has to proceed only on the information about the commission of cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 154 of Cr.P.C. and all other subsequent information would be covered by Section 162 of Cr.P.C. for the reason that it is the duty of the investigating officer not merely to investigate the cognizable offence reported in the FIR but also other connected offences and the Investigating Officer has to file one or more reports under Section 173 of Cr. P.C.

Even after submission of the report under Section 173 (2) of Cr.P.C. if the Investing Officer comes across any further information pertaining to the same incident, he can make further investigation, but it is desirable that he must take the leave of the court and forward the further evidence, if any, with further report or reports under Section 173 (8) of Cr. P.C.

In case the officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences such information cannot properly be treated as an FIR as it would, in effect, be a second FIR and the same is not in conformity with scheme of the Cr.P.C.  

Counter Claim:-

In Upkar Singh Vs. Ved Prakash & Ors. [(2004)13 SCC 292], the Supreme Court considered the judgment in T.T. Antony (supra) and explained that the judgment in the said case does not exclude the registration of a complaint in the nature of counter claim from the purview of the court.

What had been laid down by the Supreme Court in the aforesaid case is that any further complaint by the same complainant against the same accused, subsequent to the registration of a case, is prohibited under the Cr.P.C. because an investigation in this regard would have already started and further the complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence, will be prohibited under section 162 of Cr.P.C.

 However, this rule will not apply to a counter claim by the accused in the first complaint or on his behalf alleging a different version of the said incident. Thus, in case, there are rival versions in respect of the same episode, the investigating agency would take the same on different FIR and investigation can be carried under both of the them by the same investigating agency and thus, filing FIR pertaining to a counter claim in respect of the same incident having a different version of events, is permissible.

Maintainability of second FIR

The issue regarding maintainability of second FIR was considered by the Supreme Court as back as in 1979 in Ram Lal Narang Vs. Om Prakash Narang and Anr. [AIR 1979 SC 1791]. In that case the Supreme Court considered a situation wherein two FIRS had been lodged.

The first one formed part of subsequent larger conspiracy which came to the light on receipt of fresh information. Some of the conspirators were common in both the FIRs and the object of Conspiracy in both the cases was not the same.

The Supreme Court while considering the question as to whether investigation and further proceedings on the basis of both FIRs was permissible held that no straight jacket formula can be laid down in this regard. The only test whether two FIRs can be permitted to exist was whether the two conspiracies were identical or not.

After considering the facts of the said case, the Court came to the conclusion that both conspiracies were not identical. Therefore, lodging of two FIRs was held to be permissible.

In Rameshchnadra Nandlal Parikh Vs. State of Gujrat & Anr. [(2006) 1 SCC 732], the Supreme Court reconsidered its earlier judgments including that of T.T. Antony (supra) and held that in case the FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to
have been committed in the course of the same transaction or the same occurrence as the one alleged in the First FIR, there is no prohibition in accepting the second FIR.

In Nirmal Singh Kahlon Vs. State of Punjab & Ors. [(2009) 1 SCC 441], the Supreme Court considered a case where an FIR had already been lodged on 14.06.2002 in respect of the offences committed by individuals. Subsequently the matter was handed over to the Central Bureau of investigation (CBI), which during investigation collected huge amount of material and also recorded statements of large number of persons and the CBI came to the conclusion that a scam was involved in the selection process of Panchayat Secretaries.

The second FIR was lodged by the CBI. The Supreme Court after appreciating the evidence, came to the conclusion that matter investigated by the CBI dealt with a larger conspiracy. Therefore, this investigation has been on a much wider canvass and held that second FIR was permissible and required to be investigated.

In Babubhai Vs. State of Gujrat & Ors. {(2010) 12 SCC 254], the Supreme Court has approved the recording of more than one FIR in respect of same case committed on the ground that the police is required to register FIR on the basis of information provided and that "where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible."

In Md. Sadrul Khan Vs. State of Bihar [Patna High Court, 21 Sep 2015] an accidental death was reported, there was no information regarding commission of murder. Since the dead body in question was found on the road by the Police Patrolling Party, it prima facie appeared to be a case of accidental death and hence an FIR against an unknown vehicle driver was registered under Sections 279 and 304-A IPC on the basis of statement of local Chaukidar.

However, on the next date when the dead body was identified by the father and other family members of the deceased, the father of the deceased lodged a definite information making specific allegation against four persons including the petitioner who are alleged to have conspired together in order to commit the murder of the deceased and after commission of murder they threw the dead body on the road in order to create an impression of accidental death.

The information given in the second FIR is not the same as given in the first FIR. The allegation made in the second FIR is different version of the said incident. In view of the ratio laid down by the Supreme Court in the judgments cited herein above, which have also taken into considertation the judgment in case of T.T. Antony (Supra), a second FIR pertaining to different version or rival version in respect of the same incident is permissible in law.

WHAT IS ZERO FIR AND WHY IT IS NEEDED

Date:- 02.05.2016



ZERO FIR: 

Zero FIR (Zero First Information Report) means that a FIR can be registered in any Police Station, on receipt of complaint, irrespective of its territorial jurisdiction  and the same can be transferred later to the appropriate Police Station After collection of evidences by Police.(Appropriate police station is one within  whose local jurisdiction the offence actually taken place)

For example an offence of Murder took place at some area which comes under the jurisdiction of Police Station  PUNE. The person who saw the dead body at BOMBAY approached the nearest Police Station at  BOMBAY  and informed the same. In such a situation police incharge of BOMBAY police Station cannot excuse themselves saying that the case does not fall within their jurisdiction and it falls within the jurrisdiction of PUNE Police Station. They should take immediate action (like collecting samples, getting information from eye witnesses, etc.). Later the case will be transferred to Police Station PUNE police Station.

ZERO FIR can be filed at any police station – even if you are far off from the place of incident and you may/ may not be sure of the correct jurisdiction? Place where the offence actually taken place? There are provisions to do so and the same can be transferred to the appropriate police station limits when these are available. Such an FIR is called the Zero FIR!

However, there are chances that the police station you visit may plead unawareness of such a concept. You should still report an FIR for the record the evidences need to be collected in very short span like blood samples, port mortem Report and statement of eye witnesses etc. are required to be collected immediately otherwise it may gets destroyed or tampered by Offenders.

Why Zero FIR needed?

Incidents like accident, murder and rape require immediate action from the concerned authorities and rush to take samples, getting information from eye witnesses and getting circumstantial details. A Zero FIR helps to take note of this initial action regardless of trying to figure out in  which limits or territorial jurrisdiction the crime / offence took place.
Case Laws:
--------------
• Satvinder Kaur vs Govt. of NCT of Delhi on 5/10/1999 (AIR 1999, 1031) 
• Ramesh Kumari vs Govt.

CONSENSUAL RELATIONSHIP ON PROMICE OF MARRIAGE CANNOT BE TERMED AS RAPE

DATE:- 22.04.2016

The Bombay High Court on Thursday, while granting Anticipatory bail to a man,observed that if a major and educated women gets into physical relationship with someone who understands its consequences, then it would not fall under the ambit of Rape. The Charges that accused facing was Sec. 376, 420, 323 and 506 of Indian Penal Code.  

Justice Mridula Bhatkar, observed this while hearing a pre-arrest bail application filed by Solapur resident Sumit Patil (25).  

Patil had filed the Anticipatory bail application through Advocate Priyal Sarda, saying that the relationship between the applicant and the complainant was consensual and a case of Rape is not made out on the other hand, Aniket Nikam on behalf of 24 year old complainant alleged before the court that she leaves in mumbai and the accused stays in solapur and the women got into relationship because he had promised her that he would marry her. He also said that she would not got in to relationship had he not made the false promise of marriage and hence the case of Rape is applicable.

The prosecution’s case is that the accused and the woman met in Solapur in March 2015 and fell in love. The accused promised to marrry her and allegedly forced her to get into a physical relationship and when she conceived, she was made to abort the child and after that the accused refused to marry her and hence she lodged an FIR against him.

The judge, however, clarified that in a similar matter she had taken a view that if an educated woman is mature enough to understand the consequences of having a physical relationship with her partner, then it would not qualify as rape.

The judge said that the victim should have said “No” when she was asked to get into a physical relationship. “I know our society has certain taboos. But if you consider western culture, this is consensual. This is not rape. When the woman is educated and mature she can say no. When you (girl) say yes, it becomes mutual,” observed by Justice Mridula Bhatkar.

The man was further ordered to post a surety of Rs 25,000 and ensure he does not in any way attempt to get in touch with the woman.

IMPORTANT LEGAL ADVICE REGARDING PERSONAL DOCUMENTS (KYC & OTHER)

DATE:- 11.04.2016

DEAR FRIENDS

Wanted to highlight one very important aspect. In ordinary course we keep issuing and submitting our KYC Documents ( Identity and residential proofs..such as PAN Card, Electricity bill etc.) to various people. For housing or Car or other loans, bank accounts, or even for buying new sim card we submit these documents. At almost all these places they ask for self certification on these documents. We immediately sign those documents and hand over the same to them. just imagine your self certified copies are freely available in the hands of such persons and those documents can be used by him for everything.Its really serious and its been seen that in most of the terrorist activities, KYC documents are sourced from the SIM card Sellers.

Hence, please inculcate a 'HABIT' of writing the date and purpose for which you are submitting the self certified KYC Documents so those documents cannot be reused for another purpose again.

Please share this as much as possible because it is very important to write the date and purpose, which we never do while submitting KYC documents.

Here after wards sign as

1....... Signature
2........Date
3........Purpose
4.........And not to be used for other purpose.



Regards,

Jeetendra Jagtap

DAUGHTERS RIGHT TO SHARE IN ANCESTRAL PROPERTY (HINDU SUCCESSION ACT 1956)

DATE:- 05.04.2016

DAUGHTERS RIGHT TO SHARE IN ANCESTRAL PROPERTY (HINDU SUCCESSION ACT 1956)

OLD HINDU LAW BEFORE HINDU SUCCESSION ACT

Daughters was not having right to seek share in the parents property prior to 1956. After 1956 to till 2005 amendment daughters were having right to residence in the ancestral house and also would succeed to the personal share of their father in the ancestral property. In the notional partition though father of daughters died used to be given a share in the ancestral property and his sons and in the share of the father the daughters were given share along with sons and mother.

Example:- If Hindu male had died leaving behind him three sons and two daughters and wife. Sons and father and mother were given a share allotting three sons 1/5th, father 1/5th and mother 1/5th share. In the fathers 1/5th share three sons and two daughters and mother will be allotted 1/30th Share. 

There are contradictory Judgments of different High Courts and supreme court but three judge bench judgment as held in Gurupadappa Khandappa Magdum case is holding the ground and it is not set aside till this day.

Law after the 2005 amendment to section 6 

The new section 6 of Hindu Succession Act 1956 Inserted in place of old section.

The new section declares that the daughters are coparceners by birth, they are placed on part by sons. They will be given equal shares along with the sons. It also states that the alienation made before the December 2004 are not affected and daughters will not get right in them. 

Partition has been defined as registered partition deed and decree means final decree in order to avoid any false partitions springing up. 

But the law is yet to develop and settle. There are judgments on the rights of the daughters but they are differing on the following points. 

1. Daughter born after 09-09-2005 on which date amendment act came into force are coparceners. 

2. Daughters born from 17 June 1956 on which date Hindu Succession Act came into force are coparceners basing on principle that in case of insertion the old section scored out by pen and ink and new inserted and its insertion takes back and referred as if existing since the date of original act which is 1956. But the word existing in the new section 6 on and from the date of commencement of 2005 act is leading to different interpretations.

3. Daughters either born before or after the 1956 act all are coparceners. This is based on the provisions in the amended section 6 and object of the act is already southern states Hindu Succession Act giving equal rights to daughters. Which means further strengthening means only unmarried daughters are given the coparcenary right in south indian states but the centre extended to all and to dating back to act the original act 1956.

4. Only daughters who are alive on 09-09-2005 on which date amendment act came into are entitled for benefit of new section 6 as coparceners. This view is based on the principle that on the date of death the old act was applicable and her rights are to be decided as on her date of death.

5. If father died before the 2005 act came into force i.e. 09-09-2005 then the daughters are not entitled to get the benefits of 2005 act and will not be a coparceners. This is based on the principle that once vested and cannot be divested. The rights of the male dying before the 2005 are crystalized and succession opened and vesting and divesting takes place as per the old act. 

6. If father died before 1956 act daughters are not entitled for the benefits of 2005 act and not get equal shares as sons. This is because there are number of rulings that the 1956 act is prospective and not retrospective and to the death before 1956 then old Hindu Law are applicable.

Important judgements after 2005 act.

GANDURI KOTESHWARAMMA VS. CHAKIRI YANADI  AIR(SC)-2012-0-169 wherein the suit for partition was filed and preliminary decree was passed before the 2005 amendment act. The daughters filed application after 2005 amendment to section 6 of Hindu succession act 1956 to allot them equal share along with sons. The trail court allowed it. The high court reversed but the supreme court held that the order of trail court is correct. The order of high court is against the S. Sireddy case and Phoolchand case. The amendments brought are to be considered by the courts as held in S.Saireddy case. So daughters born before 2005 act are given share in the coparcenary property. But it is not clear that whether they were born prior to the 1956 act or not.

Bombay high court full bench held

That the daughters by birth either born before or after 1956 are coparceners if they are alive on the date of 2005 act i.e.9-9-2005. The court also held that if the daughters had died before the 2005 act came into existence on 9-9-2005, new law is not applicable to them.

Karnataka high court two judgments of division bench held two different views. M PRITHVIRAJ VS. LEELAMMA N case the division bench held that the partition had opened in the year 1969 so the amended provisions of the 2005 act are not attracted. The latter judgement of N. Pushpalata held that, daughters born after 1956 are coparceners and irrespective of succession opened either before or after 2005 act the daughters are given equal share as per the inference drawn from the section to show that the parliament wanted to extend the facility to the daughters born before the amendment act 2005. Now matter is referred to full bench but the full bench has deferred to give judgement on reference since the N.Pushpalata case is pending before the apex court.

The law as on today is not settled. The Apex court will while dealing with the N.Pushpalata case will have to ponder over the points discussed in detail and the laws and interpretation and principles of interpretation of the statue on mischief theory and come to the just conclusion and view expressed by the full bench of the Bombay high court even oral partition will be dealt. Till then there is no end to the contrary views and discussions.

As per the IN Shamarao V. Parulekar v. District Magistrate, Thana, Bombay9, a Constitution Bench of the Supreme Court had laid down that an amendment Act must be read as if the words of amendment had been written into the Act (except where that would lead to an inconsistency) with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. (See also Yadlapati Venkateswarlu v. State of Andhra Pradesh10, and State of Maharashtra v. Vithalrao Ganpatrao Warhade11). So once inserted the section 6 of the hindu succession act should be treated as existing from 1956 itself. If this is accepted then the daughters born after 1956 are coparceners.

New section 6 of Hindu succession act is as under.

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the dt. 20.12.2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-sec. (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation. For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

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

(5) Nothing contained in this section shall apply to a partition, which has been effected before the dt. 20.12.2004.

Explanation. For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.

Hindu Succession (Amendment) Act, 2005 makes the law applicable from 9-9-2015

But clause 1 of section 6 daughters by birth become a coparcener in her own right in the same manner as the son. Full bench of bombay high court view is by birth either born before or after the act. Where as N.Pushpalata case as held in the apex court judgements retrospective effect cannot be given prior to the act and it can be given only under the act from 1956.

But the section 6 of the general clauses act and its interpretation it is made out that wide powers are their to the legislation that the act can be made retrospective even prior to the act itself. So the words which are used in the section by birth must refer to their birth and not birth after the amendment act or 1956 act.

The words in the section (b) of section “ have the same rights in the coparcenary property as she would have had if she had been a son; for all purpose she is treated on par with son. So differentiation cannot be drawn on the basis of the gender discrimination is against the constitution provisions.

The words in section 6

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the dt. 20.12.2004.

Alienations made prior to the amendment act are saved as the purchaser will not be aware of the future laws and if made applicable they will be deprived off their right in the purchased property and it will be without notice to them. The testamentary disposition must be referred to the interest of the Hindu male in the coparcenary and not referred to property reiceved by him on partition. His interest better understood as held in Gurupadappa khandappa case.

Caluse 3 of the new section is replica of the old section 6 itself as per the Gurupadappa khandappa case his interest means arrived at by notional partition between him and coparceners i.e. sons and now daughters. The calculation is necessary as there is one more female who is entitled to succeed under schedule I wife/widow.

From the above we can make out daughters are placed on par as son.

Expect there may be disagreements.