Glory Bai vs S.K.A.Noorjakan Beevi – Madras High Court

Madras High Court

Glory Bai vs S.K.A.Noorjakan Beevi on 2 March, 2011

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 02/03/2011

CORAM

THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN

C.M.A.(MD) NO.1122 OF 2009 AND M.P.(MD) NO.2 OF 2009

1.Glory Bai
2.Thangamani … Appellants

Versus

1.S.K.A.Noorjakan Beevi
2.United India Insurance Company Limited
Through its Branch Manager, Ramanathapuram.
3.A.Sakthivel
4.United India Insurance Company Limited
Through its Divisional Manager,
P.W.D.Road, Savier Building 2nd Floor,
Nagercoil. … Respondents
(R1 and R3 remained exparte and hence, dispensed with)

PRAYER

Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the judgment and decree dated 28.04.2004 made in M.C.O.P.No.940 of 2002, by the Motor Accidents Claims Tribunal (Fast Track Court No.I), Tirunelveli.

For Appellants … Mr.T.Selvakumaran
For Respondents 2 and 4 … Mr.S.Muthalraj
For Respondent 3 … Mr.S.Subbiah
For Amicus Curiae … Mrs.N.Krishnaveni

Mr.M.Mahaboob Athiff:

JUDGMENT

An interesting question of law that arises in the appeal is, whether the unfortunate parents, who lost their married daughter in a road accident, are entitled to compensation for the death of their daughter.

2. In this case, the daughter of the appellant – parents, her husband, her minor son, her mother-in-law, her brother-in-law (husband’s brother) and his wife travelled in an Ambassador Car. The ill-fated Car had a head on collision with a tourist bus on 15.03.2002. In that accident, the aforesaid entire family members died. One vehicle was registered with the second respondent – Insurance Company at Ramanathapuram and another vehicle was insured with the same Insurance Company at Nagercoil. The father of the son-in-law of the appellants (since the mother of the son-in-law also died in the accident) claimed compensation and he was granted compensation for the loss of his son. But, the same yardstick was not applied when the appellants herein claimed compensation for the loss of their daughter. Their M.C.O.P.No.940 of 2002 was rejected by the Tribunal on the ground that they were not the legal representatives after marriage and that after marriage, the heirs of the deceased husband alone are the legal representatives of the married daughter, by an order dated 28.04.2004. The relevant portion of the order of the Tribunal in para 9 of its order is extracted hereunder:

“…………. kfis jpUkzk; bra;J bfhLj;j gpwF kfspd; fzthpd; FLk;gj;jpdh; jhd; kfspd; thhpRjhuh;fs; Mthh;fs; vd;Wk;/ kfspd; bgw;nwhh;fs; thhpRjhuh;fshf Mf khl;lhh;fs; vd;Wk;/ ,e;j kDit jhf;fy; bra;tjw;F kDjhuh;fSf;F jFjpapy;iy vd;Wk; kDjhuh;fs; ,we;jthpd; thhpRjhuh;fs; ,y;iy vd;Wk; vjph;kDjhuh;fs; jug;g[ mwpthh;e;j tHf;fwp”h; thjpl;ljpy; tY cs;sJ vd;W ePjpkd;wk; fUJfpwJ……… b$!pfyhtpd; jpUkzj;jpw;Fg; gpwF kDjhuh;fs; b$!pfyhtpd; thhpRjhuh;fshf khl;lhh;fs; vd;W ePjpkd;wk; jPh;khdpf;fpwJ. ,e;j kDit jhf;fy; bra;tjw;F kDjhuh;fSf;F jFjpapy;iy vd;W ePjpkd;wk; jPh;khdpf;fpwJ…….”

3. When the matter was listed for final hearing, considering the importance of the issues involved in this case, this Court appointed a young and energetic Advocate Mr.M.Mahaboob Athiff as an Amicus Curiae to render assistance in this matter. Ms. N. Krishnaveni, a woman lawyer, volunteered herself in this case considering the issues involved herein and made her submissions.

4. Ms.N.Krishnaveni, the learned counsel submitted that Section 166(1)(c) of the Motor Vehicles Act permits a legal representative of a deceased to file a claim petition, seeking compensation. She further submitted that the word ‘legal representative’ is not defined in the Motor Vehicles Act and she refers to Section 2(11) of the Civil Procedure Code, wherein, the word legal representative is defined. She proceeded further that the question as to whether the brother of a person who is killed in the motor accident can claim compensation was considered by the Honourable Apex Court in Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and another reported in 1987 (3) SCC 234. The Honourable Apex Court considered in detail the issue, in the light of the Fatal Accidents Act, 1855 and Section 2(11) of the Code of Civil Procedure and held that the brother could maintain a claim petition. Therefore, she submitte that there could not be any difficulty in maintaining the application by the parents, if the brother could maintain a claim application. She submitted that Fatal Accidents Act, 1855 provides that wife, husband, parents and children of the deceased person could initiate action or sue claiming compensation for the death. The learned counsel also submitted that the Honourable Apex Court took note of the fact that when the Law Commission suggested to define the word ‘legal representative’ in terms of Fatal Accidents Act to include wife, husband, parents and children alone, the parliament in its wisdom declined to amend, in terms of the recommendations of the Law Commission. Accordingly, the word ‘legal representative’ as it stands has wider meaning, not confining itself to the spouse, parents and children of the deceased. In this regard, she refers to para 15 of the said judgment, which reads as follows:

“15. Before concluding we may add that although the Act was extensively modified after the receipt of the report of the Law Commission, Parliament did not choose to amend Section 110-A of the Act by defining the expression “legal representatives” in relation to claims under Chapter VIII of the Act as “the spouse, parent and children of the deceased” as recommended by the Law Commission. The Law Commission had observed in its 85th Report that it would be appropriate to assign to the expression “legal representative” the same meaning as had been given to the expression “representative” for the purposes of the Fatal Accidents Act, 1855 and that would effectively carry out the purpose of social justice underlying Chapter VIII of the Act, to which the Fatal Accidents Act, 1855 was the nearest approximation. This recommendation was made after referring to the divergent views expressed by the various High Courts on the meaning of the expression “legal representatives” in Section 110-A of the Act. The fact that Parliament declined to take any action on the recommendation of the Law Commission of India suggests that Parliament intended that the expression “legal representative” in Section 110-A of the Act should be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased.”

5. In fact, the learned counsel for the Insurance Company also conceded that the Tribunal committed error in holding that the claim application is not maintainable on the ground that the appellants were not the legal representatives of their deceased married daughter. However, he submitted that they are entitled to compensation as legal representatives and not as dependents. That is, according to him, the liability of the insurer is only limited to the compensation payable under Section 140 of the Motor Vehicles Act and not as dependents and multiplier method envisaged under the Second Schedule of the Motor Vehicles Act will not apply. The learned counsel heavily relied on the judgment of the Honourable Apex Court in Smt.Manjuri Bera Vs. Oriental Insurance Company Limited and another reported in 2007 (1) TN MAC 385 (SC) and a decision of this Court in G.Deivasigamani and others Vs. Metropolitan Transport Corporation Limited, Chennai reported in 2008 (1) MLJ 1107.

6. In these circumstances, there is no difficulty in setting aside the order of the Tribunal and to hold that the claim application is maintainable and the appellants could maintain an application as the legal representatives of the deceased married daughter. But however, the matter does not rest there. As stated above, the Insurance Company restricted its liability under Section 140 of the Motor Vehicles Act contending that the appellants are not the dependents of the deceased married daughter. Thus, the issue that arises for consideration is as to whether the parents of the deceased married daughter could be termed as dependents warranting application of multiplier method referred infra.

7. Ms.N.Krishnaveni, learned counsel strenuously contended that if the father of the deceased husband could be termed as the dependent of his son, it is atrocious to say that the parents of the deceased married daughter are not the dependents of their daughter only on the ground of marriage. The learned counsel further submitted that such a view negates the rights guaranteed to women under Part III of the Constitution. She proceeded further that if the parents of the married daughter are held as not the dependents of their married daughter, it offends Articles 14, 15, 21 and 51(A) of the Constitution. The dependency of the parents does not cease on the marriage of their daughter. Further, if such a view is permitted, it would amount to treating the women as properties / chattel given in marriage. This is impermissible under our constitutional Scheme. On the coming into force of the Constitution, equality of women and equal protection to women are guaranteed. Therefore, she contended that the parents of the deceased daughter should be treated as dependents for all purposes, including for the grant of compensation.

8. Mr.M.Mahaboob Athiff, learned amicus curiae submitted that our Parliament enacted the Maintenance and Welfare of Parents and Senior Citizens Act 2007, recognizing statutorily that the parents are dependents of their daughters as well and are entitled to seek maintenance even from the married daughters. He took me through Section 2(a), 2(b) and Section 4 of the said Act, in support of his submission. According to him, the aforesaid Act provides maintenance for parents from both sons and daughters, grand-daughters and grand- sons making it clear that no gender distinction is made in the duty cast upon them in maintaining the parents/grand-parents. Hence, the Insurance Company could not deny compensation on the ground that the appellants were not dependents of their deceased married daughter.

9. Mr.M.Mahaboob Athiff, learned amicus curiae further submitted that if the parents of a married daughter are denied compensation on the ground that they are not dependents, the tortfeasors of the road accident alone would be the beneficiaries. In this regard, he relied on a judgment of the Madhyapradesh High Court in Chandan Singh and another Vs. S.E.W. Construction Company Limited and others reported in 2003 ACJ 1382.

10. Mr.M.Mahaboob Athiff, learned amicus curiae further submitted that the Court should take judicial notice of the policy of the Government relating to Family Planning and the propagation of “One family – One child” concept.

11. Mr.M.Mahaboob Athiff, learned amicus curiae relied on a decision of the Honourable Apex Court in Anuj Garg and others Vs. Hotel Association of India and others reported in 2008 (3) SCC 1 which holds that prohibiting employment of women in Section 30 of Punjab Excise Act, 1914 in any premises in which liquor or intoxicating is consumed is ultra-vires the Constitution and submitted that equality between two sexes would be unknown prior to the enactment of Constitution, but after the Constitution came into force, women are given equal rights. He contended that if it is held that on marriage, the heirs of the married women would be the heirs of the husband and not her parents, such a view is in conflict with the equality of rights guaranteed to women under Articles 14, 15 and 21 of the Constitution. He referred to the decisions taken in the International Convention on the Elimination of All Forms of Discrimination Against Women (shortly called CEDAW). The decision taken in those conventions were ratified by UNO on 18.12.1979 and by the Government of India on 19.06.1993. The Government of India is an active participant in CEDAW. According to the learned counsel, by operation of Article 2(C) and other related Articles of CEDAW, the State is bound to take appropriate measures including by way of bringing in appropriate legislation to modify or abolish gender based discrimination in the existing laws, regulations, customs which constitute discrimination against women. Reference was made to the general recommendations made by the Committee on the Elimination of Discrimination against Women, based on the various Articles of the CEDAW. He brought to the notice of this Court that CEDAW declaration was approved by the Honourable Apex Court in various judgments including the following and the discrimination shown to women in various ways were deprecated.

(i) Valsamma Paul (Mrs) v. Cochin University and others [AIR 1996 SCC 1011]

(ii) C.Masilamani and others Vs. The idol of Sri Swaminathaswami, Swaminathaswami Thirukkoil and others [AIR 1996 SCC 1697]

(iii) Madhu Kishwar and others Vs. State of Bihar and others [AIR 1996 SCC 1864]

(iv) Anuj Garg and others Vs. Hotel Association of India [2008 (3) SCC 1]

12. The learned amicus curiae referred to Article 1 of the CEDAW which defines discrimination against women. He also referred to Article 15 of CEDAW compelling the State to eliminate all forms of discrimination against women. He proceeded further that it is imperative for the State to eliminate the obstacles and to prohibit gender based discrimination as mandated by Articles 14 and 15 of the Constitution of India read with the Articles of CEDAW. He further submitted that Articles of CEDAW and recommendations of the Committee on the Elimination of Discrimination against Women should be given effect to, in view of Article 51 of the Constitution of India. He further submitted that the statute, namely, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 should be read in the context of the aforesaid International Convention read with Article 51 of the Constitution of India.

13. Mr.M.Mahaboob Athiff, the learned amicus curiae further submitted that a similar issue arose before the Delhi High Court in Smt. Ganni Kaur Vs. The State(NCT) and others reported in AIR 2007 Delhi 273, wherein a Sikh family consisting of husband, wife and children were bunt to death and the parents of the married daughter claimed compensation for the death of her daughter. While the claim made by the parents of the husband was allowed, the claim made by the parents of the married daughter was rejected on the ground that they were not the legal representatives under Section 15 of the Hindu Succession Act. The Delhi High Court granted compensation to the parents and dealt the issue in detail.

14. In the case of married daughter claiming compensation for the death of her father / mother, the learned counsel submitted that the Karnataka High Court in Managing Director, Bangalore Metropolitan Transport Corporation Vs. Smt.P.S.Padmavathi reported in 2006 ACJ 2563 held that irrespective of the dependency, the daughter is entitled to compensation by applying the multiplier method as provided under Second Schedule to the Motor Vehicles Act. According to him, the same principle would apply in cases where the parents of the married daughter make a claim for compensation for the death of their married daughter.

15. Mr.M.Mahaboob Athiff, the learned amicus curiae further submitted that in similar circumstances, when the parents of the deceased married daughter made a claim for compensation, a Division Bench of the Kerala High Court in Anandavally Amma and others Vs. Kerala State Road Transport Corporation and others reported in 1997 ACJ 1044 granted compensation to the parents by applying multiplier method without reference to dependency.

16. Therefore, Mr.M.Mahaboob Athiff, learned amicus curiae concluded that the parents of the deceased married daughter in the present appeal are entitled to compensation by applying multiplier method.

17. On the other hand, the learned counsel for the insurance company submitted that as per the decision of the Honourable Apex Court in Smt.Manjuri Bera Vs. Oriental Insurance Company Limited and another reported in 2007 (1) TNMAC 385 (SC) and the decision of this Court in G.Deivasigamani and others Vs. Metropolitan Transport Corporation Ltd., reported in 2008 (1) MLJ 1107, the appellants, who are the parents of the deceased married daughter are not dependents, though they are the legal representatives. Therefore, the appellants are not entitled to compensation as dependents. But they are entitled to compensation only under Section 140 of the Motor Vehicles Act and the multiplier method for dependents could not be applied.

18. I have considered the submissions made on either side and perused the materials available on record.

19. After coming into force of our Constitution, it could not be said that the parents of the deceased son could be treated as dependents, but not the parents of the deceased married daughter, as it would offend Articles 14, 15 and 21 of the Constitution of India. I am in entire agreement with the submissions made by Mrs.N.Krishnaveni and Mr.M.Mahaboob Athiff.

20. As rightly contended by Mrs.N.Krishnaveni, the dependency of the parents does not cease on the marriage of their daughter and if such a view is permitted, it would amount to treating the women as property given in marriage. As rightly contended by the learned counsel, women are given equal rights in our Constitutional Scheme.

21. As rightly contended by Mr.M.Mahaboob Athiff, the Honourable Apex Court in Anuj Garg and others Vs. Hotel Association of India and others reported in 2008 (3) SCC 1 held that Section 30 of Punjab Exercise Act, 1914 prohibiting employment of women in any premises in which liquor or intoxicating drug is consumed is ultra-vires of the constitution. In the said case, the Hotel Association of India challenged the vires of Section 30 of Punjab Exercise Act as unconstitutional as it prohibits employment of women in Hotels where liquor is served, not only in the bars, but also in the restaurant and in the rooms. The Delhi High Court declared Section 30 as ultra-vires of Articles 19(1)(g), 14 and 15 of the Constitution as prayed for. A few citizens of Delhi took the matter to the Honourable Apex Court. The Honourable Apex Court dismissed the appeal. In this regard, paras 37, 39, 43 and 47 of the said judgment are extracted hereunder:

“37.Instead of putting curbs on women’s freedom, empowerment would be a more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the State as well as law modelling done in this behalf.

39. Gender equality today is recognised by the European Court as one of the key principles underlying the Convention and a goal to be achieved by member States of the Council of Europe.

43. Instead of prohibiting women employment in the bars altogether the State should focus on factoring in ways through which unequal consequences of sex differences can be eliminated. It is the State’s duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance to the requirements of the profession they choose to follow. Any other policy inference (such as the one embodied under Section 30) from societal conditions would be oppressive on the women and against the privacy rights.

47. No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency until and unless there is a compelling State purpose. Heightened level of scrutiny is the normative threshold for judicial review in such cases.”

Applying the aforesaid principles, as rightly contended by the learned amicus curiae, the parents of the deceased married daughter could not be denied their just compensation.

22. In fact, the Court also should take judicial notice of the policy of the Government, as contended by the learned amicus curiae, relating to family planning and the propagation of “One family – One child” concept and in that context, the parents of the female child would not be deprived of compensation in the unfortunate event of the death of their daughter after marriage in a gruesome accident.

23. If compensation is deprived on the ground that the parents of the deceased married daughter are not dependents, the tortfeasors of the road accident alone would be the beneficiaries as held by the Madhya Pradesh High Court in Chandan Singh and another Vs. S.E.W. Construction Company Limited and others reported in 2003 ACJ 138. In this regard, para 11 of the said judgment is extracted hereunder:

“11. Now, we deal with the contention whether father of deceased is entitled to compensation. Mr.V.R.Rao, the learned counsel, submits that father is not dependent on the deceased since he was employed and receiving handsome salary, however, the compensation may be awarded to the mother. We do not appreciate this contention to the extent it is advanced. Simply because legal representatives of the deceased are earning members and do not depend upon the deceased for survival, claim for compensation cannot be denied. Assuming all the legal heirs of the deceased are in service and receiving salary or their own income, does it mean that claim petition is to be dismissed as not maintainable? We are satisfied that this is not the purpose of the legislation and in case it is held as contended by the respondents, the tortfeasor(s) are the beneficiaries which is not the purpose of the legislation. Compensation is assessed as awarded for the death of a person to his legal heirs who sustain loss on account of his death by the tortfeasor(s) or wrongdoer(s). Therefore, compensation is awardable and distributed amongst legal representatives depending on the facts of the case. Simply because, the award of compensation to the father has not been challenged, court can consider the fact and award compensation as per law.”

24. As rightly contended by the learned amicus curiae, Government of India is an active participant in the International Convention on the Elimination of All Forms of Discrimination Against Women (shortly called CEDAW) and also ratified the decision taken thereon. The learned amicus curiae is correct in his submission that CEDAW declaration was approved by the Honourable Apex Court in more than one decision. In this regard, the relevant paras from the judgments relied on by the learned amicus curiae are extracted hereunder: Valsamma Paul (Mrs) v. Cochin University and others

[AIR 1996 SCC 1011]

“26. Human rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedoms have been reiterated in the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. The human rights for women, including girl child are, therefore, inalienable, integral and an indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth – cultural, social and economical. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights. Convention for Elimination of all forms of Discrimination Against Women (for short, “CEDAW”) was ratified by the UNO on 18-12-1979 and the Government of India had ratified as an active participant on 19-6-1993 acceded to CEDAW and reiterated that discrimination against women violates the principles of equality of rights and respect for human dignity and it is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; it hampers the growth of the personality from society and family, making more difficult for the full development of potentialities of women in the service of the respective countries and of humanity.

27. Establishment of a new international economic order based on equality and justice will contribute significantly towards the promotion of equality between men and women etc. Article 1 defines “discrimination against women” to mean

“any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognized enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.

Article 2(b) enjoins upon the State parties, while condemning discrimination against women in all its forms, to pursue, by appropriate means, without delay, elimination of discrimination against women by adopting

“appropriate legislative and other measures including sanctions where appropriate, prohibiting all discriminations against women; to take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”.

Clause C enjoins upon the State to ensure legal protection of the rights of women on equal basis with men, through constituted national tribunals and other public institutions against any act of discrimination to provide effective protection to women. Article 3 enjoins upon the State parties that it shall take, in all fields, in particular, in the political, social, economic and cultural fields, all appropriate measures including legislation to ensure full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men. Article 13 states that

“the State parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women”.

28. Parliament has enacted the Protection of Human Rights Act, 1993. Section 2(d) defines “human rights” to mean

“the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India”.

Thereby, the principles embodied in CEDAW and the concomitant right to development became an integral part of the Constitution of India and the Human Rights Act and became enforceable. Section 12 of the Protection of Human Rights Act charges the commission with duty for proper implementation as well as prevention of violation of the human rights and fundamental freedoms.

C.Masilamani and others Vs. The idol of Sri Swaminathaswami, Swaminathaswami Thirukkoil and others [AIR 1996 SCC 1697]

“14. In Mangal Singh v. Rattno another three-Judge Bench was to consider the question whether a Hindu female who was dispossessed from the property in her possession before the Act had come into force became an absolute owner under Section 14(1). This Court held that the words “possessed by” instead of the expression “in possession of” in Section 14(1) was intended to enlarge the meaning of the expression “possession by” to cover cases of “possession in law”. Even though the Hindu female was not in actual, physical or constructive possession of the property Section 14(1) stands attracted.

15. It is seen that if after the Constitution came into force, the right to equality and dignity of person enshrined in the Preamble of the Constitution, Fundamental Rights and Directive Principles which are a trinity intended to remove discrimination or disability on grounds only of social status or gender, removed the pre-existing impediments that stood in the way of female or weaker segments of the society. In S.R. Bommai v. Union of India this Court held that the Preamble is part of the basic structure of the Constitution. Handicaps should be removed only under rule of law to enliven the trinity of justice, equality and liberty with dignity of person. The basic structure permeates equality of status and opportunity. The personal laws conferring inferior status on women is anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution lest they become void under Article 13 if they violate fundamental rights. Right to equality is a fundamental right. Parliament, therefore, has enacted Section 14 to remove pre-existing disabilities fastened on the Hindu female limiting her right to property without full ownership thereof. The discrimination is sought to be remedied by Section 14(1) enlarging the scope of acquisition of the property by a Hindu female appending an explanation with it.

16. The General Assembly of the United Nations adopted a declaration on 4- 12-1986 on “The Development of the Right to Development” in which India played a crusading role for its adoption and ratified the same. Its preamble recognises that all human rights and fundamental freedoms are indivisible and interdependent. All Nation States are concerned at the existence of serious obstacles to development and complete fulfilment of human beings, denial of civil, political, economic, social and cultural rights. In order to promote development, equal attention should be given to the implementation, promotion and protection of civil, political, economic, social and political rights.

17. Article 1(1) assures right to development an inalienable human right, by virtue of which every person and all people are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realised. Article 6(1) obligates the State to observance of all human rights and fundamental freedoms for all without any discrimination as to race, sex, language or religion. Sub-article (2) enjoins that … equal attention and urgent consideration should be given to implement, promotion and protection of civil, political, economic, social and political rights. Sub-article (3) thereof enjoins that:

“State should take steps to eliminate obstacle to development, resulting from failure to observe civil and political rights as well as economic, social and economic rights. Article 8 casts duty on the State to undertake, … necessary measures for the realisation of right to development and ensure, inter alia, equality of opportunity for all in their access to basic resources … and distribution of income.”

Effective measures should be undertaken to ensure that women have an active role in the development process. Appropriate economic and social reforms should be carried out with a view to eradicate all social injustice.

18. Human rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedom have been reiterated by the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. The human rights for women, including girl child are, therefore, inalienable, integral and indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth, culturally, socially and economically. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights.

19. Vienna Declaration on the elimination of all forms of discrimination against women for short “CEDAW” was ratified by the UNO on 18-12-1979. The Government of India who was an active participant to CEDAW ratified it on 19-6- 1993 and acceded to CEDAW on 8-8-1993 with reservation on Articles 5(e), 16(1), 16(2) and 29 of CEDAW. The preamble of CEDAW reiterates that discrimination against women violates the principles of equality of rights and respect for human dignity; is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; hampers the growth of the personality from society and family and makes more difficult for the full development of potentialities of women in the service of their countries and of humanity. Poverty of women is a handicap. Establishment of a new international economic order based on equality and justice will contribute significantly towards the promotion of equality between men and women etc. Article 1 defines discrimination against women to mean “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose on impairing or nullifying the recognised enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”. Article 2(b) enjoins the State parties while condemning discrimination against women in all its forms, to pursue, by appropriate means, without delay, elimination of discrimination against women by adopting “appropriate legislative and other measures including sanctions where appropriate, prohibiting all discriminations against women”. To take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. Clause C enjoins to ensure legal protection of the rights of women on equal basis with men through constituted national tribunals and other public institutions against any act of discrimination to provide effective protection to women. Article 3 enjoins State parties that it shall take, in all fields, in particular, in the political, social, economic and cultural fields, all appropriate measures including legislation to ensure full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men. Article 13 states that “the State parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women”, in particular … Article 14 laid emphasis to eliminate discrimination on the problems faced by rural women so as to enable them to play “in the economic survival of their families including their work in the non-monetized sectors of the economy and shall take … all appropriate measures…”. Participation in and benefit from rural development and, in particular, shall ensure to such women the right to participate in the development programme to organise self groups and cooperatives to obtain equal access to economic opportunities through employment or self-employment etc. Article 15(2) enjoins to accord to women in equality with men before the law, in particular, to administer property….

20. Parliament made the Protection of Human Rights Act, 1993. Section 2(b) defines human rights to mean “the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution, embodied in the international conventions and enforceable by courts in India”. Thereby the principles embodied in CEDAW and the concomitant right to development became integral parts of the Indian Constitution and the Human Rights Act and became enforceable. Section 12 of Protection of Human Rights Act charges the Commission with duty for proper implementation as well as prevention of violation of the human rights and fundamental freedoms.

21. Article 5(a) of CEDAW to which the Government of India expressed reservation, does not stand in its way and in fact Article 2(f) denudes its effect and enjoins to implement Article 2(f) read with its obligation undertaken under Articles 3, 14 and 15 of the Convention vis-.-vis Articles 1, 3, 6 and 8 of the Convention of Right to Development. The directive principles and fundamental rights, though provided the matrix for development of human personality and elimination of discrimination, these conventions add urgency and teeth for immediate implementation. It is, therefore, imperative of the State to eliminate obstacles, prohibit all gender-based discriminations as mandated by Articles 14 and 15 of the Constitution of India. By operation of Article 2(f) and other related articles of CEDAW, the State should take all appropriate measures including legislation to modify or abolish gender-based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women.

22. Article 15(3) of the Constitution of India positively protects such Acts or actions. Article 21 of the Constitution of India reinforces “right to life”. Equality, dignity of person and right to development are inherent rights in every human being. Life in its expanded horizon includes all that give meaning to a person’s life including culture, heritage and tradition with dignity of person. The fulfilment of that heritage in full measure would encompass the right to life. For its meaningfulness and purpose every woman is entitled to elimination of obstacles and discrimination based on gender for human development. Women are entitled to enjoy economic, social, cultural and political rights without discrimination and on a footing of equality. Equally in order to effectuate fundamental duty to develop scientific temper, humanism and the spirit of enquiry and to strive towards excellence in all spheres of individual and collective activities as enjoined in Articles 51-A(h) and (j) of the Constitution of India, facilities and opportunities not only are to be provided for, but also all forms of gender-based discrimination should be eliminated. It is a mandate to the State to do these acts. Property is one of the important endowments or natural assets to accord opportunity, source to develop personality, to be independent, right to equal status and dignity of person. Therefore, the State should create conditions and facilities conducive for women to realise the right to economic development including social and cultural rights.

23. Bharat Ratna Dr B.R. Ambedkar stated, on the floor of the Constituent Assembly that in future both the legislature and the executive should not pay mere lip service to the directive principles but they should be made the bastion of all executive and legislative action. Legislative and executive actions must be conformable to and effectuation of the fundamental rights guaranteed in Part III and the directive principles enshrined in Part IV and the Preamble of the Constitution which constitutes conscience of the Constitution. Covenants of the United Nation add impetus and urgency to eliminate gender-based obstacles and discrimination. Legislative action should be devised suitably to constellate economic empowerment of women in socio-economic restructure for establishing egalitarian social order. Law is an instrument of social change as well as the defender for social change. Article 2(e) of CEDAW enjoins this Court to breathe life into the dry bones of the Constitution, international conventions and the Protection of Human Rights Act and the Act to prevent gender-based discrimination and to effectuate right to life including empowerment of economic, social and cultural rights to women.

24. As per the U.N. Report, 1980 “women constitute half the world population, perform nearly two-thirds of work hours, receive one-tenth of the world’s income and own less than one-hundredth per cent of world’s property”. Half of the Indian population too are women. Women have always been discriminated against and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination. Articles 13, 14, 15 and 16 of the Constitution of India and other related articles prohibit discrimination on the ground of sex. Social and economic democracy is the cornerstone for success of political democracy.

Madhu Kishwar and others Vs. State of Bihar and others [AIR 1996 SCC 1864]

“6. With regard to the statutory provisions of the Act, he has proposed to the reading down of Sections 7 and 8 in order to preserve their constitutionality. This approach is available from p.36 (paras 47, 48) onwards of his judgment. The words “male descendant” wherever occurring, would include “female descendants”. It is also proposed that even though the provisions of the Hindu Succession Act, 1956 and the Indian Succession Act, 1925 in terms would not apply to the Scheduled Tribes, their general principles composing of justice, equity and fair play would apply to them. On this basis it has been proposed to take the view that the Scheduled Tribe women would succeed to the estate of paternal parent, brother or husband as heirs by intestate succession and inherit the property in equal shares with the male heir with absolute rights as per the principles of the Hindu Succession Act as also the Indian Succession Act. However much we may like the law to be so we regret our inability to subscribe to the means in achieving such objective. If this be the route of return on the court’s entering the thicket, it is far better that the court kept out of it. It is not far to imagine that there would follow a beeline for similar claims in diverse situations, not stopping at tribal definitions, and a deafening uproar to bring other systems of law in line with the Hindu Succession Act and the Indian Succession Act as models. Rules of succession are indeed susceptible of providing differential treatment, not necessarily equal. Non- uniformities would not in all events violate Article 14. Judge-made amendments to provisions, over and above the available legislation, should normally be avoided. We are thus constrained to take this view, even though it may appear to be conservative for adopting a cautious approach, and the one proposed by our learned brother is, regretfully not acceptable to us.

7. The Chotanagpur Tenancy Act was enacted in 1908. Its Preamble suggests that it was a law to amend and consolidate certain enactments relating to the law of landlord and tenant and the settlement of rent in Chotanagpur. It extends to North Chotanagpur and South Chotanagpur Divisions, except areas which have been constituted as municipalities under the Bihar and Orissa Municipality Act, 1922 (7 of 1922). Chapter II, thereof providing classes of tenants containing Sections 4 to 8 is reproduced hereafter:

CHAPTER II

“4. Classes of Tenants.-There shall be, for the purposes of this Act, the following classes of tenants, namely:

(1) tenure-holder, including under-tenure-holders,

(2) raiyats, namely:

(a) occupancy raiyats, that is to say, raiyats having a right of occupancy in the land held by them,

(b) non-occupancy raiyats, that is to say, raiyats not having such a right of occupancy, and

(c) raiyats having khunt-katti rights.

(3) under-raiyats, that is to say, tenants holding, whether immediately or immediately, under raiyats, and

(4)Mundari khunt-kattidars.

5. Meaning of ‘Tenure-holder’.-Tenure-holder means primarily a person who has acquired from the proprietor, or from another tenure-holder, a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it, and includes-

(a) the successors-in-interest of persons who have acquired such a right, and (b) the holders of tenures entered in any register prepared and confirmed under the Chotanagpur Tenures Act, 1869,

but does not include a Mundari khunt-kattidar.

“6. Meaning of Raiyat.-(1) ‘Raiyat’ means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family, or by hired servants, or with the aid of partners; and includes the successors-in-interest of persons who have acquired such a right, but does not include a Mundari khunt-kattidar.

Explanation.-Where a tenant of land has the right to bring it under cultivation, he shall be deemed to have acquired a right to hold it for the purpose of cultivation, notwithstanding that he uses it for the purpose of gathering the produce of it or of grazing cattle on it.

(2) A person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder or immediately under a Mundari khunt-kattidar.

(3) In determining whether a tenant is a tenure-holder or a raiyat, the court shall have regard to-

(a) local custom, and

(b) the purpose for which the right of tenancy was originally acquired.

7. (1) Meaning of ‘raiyat having khunt-katti rights’.-‘Raiyat having khunt-katti rights’ means a raiyat in occupation of, or having any subsisting title to, land reclaimed from jungle by the original founders of the village or their descendants in the male line, when such raiyat is a member of the family which founded the village or a descendant in the male line of any member of such family:

Provided that no raiyat shall be deemed to have khunt-katti rights in any land unless he and all his predecessors-in-title have held such land or obtained a title thereto by virtue of inheritance from the original founders of the village.

(2) Nothing in this Act shall prejudicially affect the rights of any person who has lawfully acquired a title to a khunt-kattidari tenancy before the commencement of this Act.

8. Meaning of Mundari khunt-kattidar.-‘Mundari khunt-kattidar’ means a Mundari who has acquired a right to hold jungle land for the purpose of bringing suitable portions thereof under cultivation by himself or by male members of his family, and includes-

(a) the heirs male in the line of any such Mundari, when they are in possession of such land or have any subsisting title thereto; and

(b) as regards any portions of such land which have remained continuously in the possession of any such Mundari and his descendants in the male line, such descendants.”

8. At this place, Section 76 along with its illustrations would also need reproduction:

“76. Saving of custom.- Nothing in this Act shall affect any custom, usage or customary right not inconsistent with, or not expressly or by necessary implication modified or abolished by, its provisions.

Illustrations

I. A custom or usage whereby a raiyat obtains a right of occupancy as soon as he is admitted to occupation of the tenancy, whether he is a settled raiyat of the village or not, is inconsistent with, and is not expressly or by necessary implication modified or abolished by, the provisions of this Act. This custom or usage, accordingly, wherever it exists, will not be affected by this Act. II. A custom or usage by which an under-raiyat can obtain rights similar to those of an occupancy raiyat is, similarly, not inconsistent with, and is not expressly or by necessary implication modified or abolished by, the provisions of this Act, and will not be affected by this Act.

III. A custom or usage whereby a raiyat is entitled to make improvements on his tenancy and to receive compensation therefor on ejectment is not inconsistent with, and is not expressly or by necessary implication modified or abolished by the provisions of this Act. That custom or usage accordingly, where it exists, will not be affected by this Act.

IV. A custom or usage whereby korkar is held,-

(a) during preparation for cultivation, rent-free, or

(b) after preparation, at a rate of rent less than the rate payable for ordinary raiyati land in the same village, tenure or estate,

is not inconsistent with, and is not expressly or by necessary implication modified or abolished by, the provisions of this Act. That custom or usage accordingly, wherever it exists, will not be affected by this Act.”

9. A bare outline of these provisions goes to show that these have been enacted to identify classes of tenants. These provisions have no connection with the ownership of land. Section 3(xxvi) defines ‘tenant’ to mean a person who holds land under another and is, or but for a special contract would be, liable to pay rent for that land to that other person. Sub-section (1) of Section 4 is plainly tied up with Section 5. Sub-sections (2)(a) and (b) of Section 4 are tied up with Section 6 and sequelly with Section 76. Local customs, as the illustrations under Section 76 show, are for the purpose of streamlining the tenancy rights and landlord-tenant relationship.Sub-section (2)(c) of Section 4 in the same pattern is tied up with Section 7. Lastly sub-section (4) of Section 4 is tied up with Section 8 relating to “Mundari khunt-kattidar”. All these tenants as classified, do not own the tenanted lands, but hold land under others. Their tenancy rights are identified and regulated through these provisions. The personal laws of the tenants nowhere figure in the set-up.

10.The solitary decided case available under Section 8 of the Act and where personal law of the Mundari was allowed to intrude is Jitmohan Singh Munda v. Ramratan Singh. There the learned Judges of the High Court comprising the Bench seem to have differed on the applicability of Section 8 but not on its scope. The case there established was that the Mundari khunt-kattidar deceased was of Hindu religion and on that basis it was held that his widow could retain possession of the tenancy rights of her deceased husband during her lifetime. The right of the male collateral to take possession was deferred by the intervening widow’s life estate. This case could, in a sense, be taken as stare decisis, when none else is in the field, in order to take the cue that personal law of a female descendant of a Mundari khunt-kattidar could steal the show and Section 8 would have to be read accordingly. But this case is decided on a misreading of Section 8. The earlier part of it providing the meaning of Mundari khunt-kattidar has been overlooked. It has been assumed, on the basis of the latter part that the expression has an inclusive definition and thus would not exclude the Mundari’s widow governed by Hindu law. The High Court at p.375 of its report observed as follows:

“The contention based on Section 8 also terminologically cannot be accepted. In the first place, in defining khunt-kattidar interest as quoted above, the word used is ‘includes’ whereafter occur clauses (a) and (b) containing reference to the male line of a Mundari. The word ‘includes’ cannot be taken to be exhaustive.”

11. Jitmohan Singh case cannot thus be a guiding precedent. It is at best a decision on its own facts. There is no scope thus in reading down the provisions of Section 8 and even that of Section 7 so as to include female descendants alongside the male descendants in the context of Sections 7 and 8. It is only in the larger perspective of the Constitution can the answer to the problem be found.

12. Life is a precious gift of nature to a being. Right to life as a fundamental right stands enshrined in the Constitution. The right to livelihood is born of it. In Olga Tellis v. Bombay Municipal Corpn. this Court defined it in this manner in para 32 of the report: (SCC p.572)

“… The sweep of the right to life conferred by Article 21 is wide and far- reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey, that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. ‘Life’, as observed by Field, J. in Munn v. Illinois, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P.

And then in para 33: (SCC pp.572-73)

“Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.”

13. Agriculture is not a singular vocation. It is, more often than not, a joint venture, mainly of the tiller’s family members. Some of them have to work hard and the others harder still. Everybody, young or old, male or female, has chores allotted to perform; a share in the burden of toil. Traditionally and historically, the agricultural family is identified by the male head and this is what Sections 7 and 8 recognise. But on his death, his dependent family females, such as his mother, widow, daughter, daughter-in-law, granddaughter, and others joint with him have, under Sections 7 and 8, to make way to male relatives within and outside the family of the deceased entitled thereunder, disconnecting them from the land and their means of livelihood. Their right to livelihood in that instance gets affected, a right constitutionally recognised, a right which the female enjoyed in common with the last male holder of the tenancy. It is in protection of that right to livelihood, that the immediate female relatives of the last male tenant have the constitutional remedy to stay on holding the land so long as they remain dependent on it for earning their livelihood, for otherwise it would render them destitute. It is on the exhaustion of, or abandonment of land by, such female descendants can the males in the line of descent take over the holding exclusively. In other words, the exclusive right of male succession conceived of in Sections 7 and 8 has to remain in suspended animation so long as the right of livelihood of the female descendant’s of the last male holder remains valid and in vogue. It is in this way only that the constitutional right to livelihood of a female can interject in the provisions, to be read as a burden to the statutory right of male succession, entitling her to the status of an intervening limited dependants/descendants under Sections 7 and 8. In this manner alone, and up to this extent can female dependants/descendants be given some succour so that they do not become vagrant and destitutes. To this extent, it must be so held. We would rather, on the other hand, refrain from striking down the provisions as such on the touchstone of Article 14 as this would bring about a chaos in the existing state of law. The intervening right of female dependants/descendants under Sections 7 and 8 of the Act is carved out to this extent, by suspending the exclusive right of the male succession till the female dependants/descendants choose other means of livelihood manifested by abandonment or release of the holding kept for the purpose.

14. For the afore-going reasons, disposal of these writ petitions is ordered with the above relief to the female dependants/descendants. At the same time direction is issued to the State of Bihar to comprehensively examine the question on the premise of our constitutional ethos and the need voiced to amend the law. It is also directed to examine the question of recommending to the Central Government whether the latter would consider it just and necessary to withdraw the exemptions given under the Hindu Succession Act and the Indian Succession Act at this point of time insofar as the applicability of these provisions to the Scheduled Tribes in the State of Bihar is concerned. These writ petitions would on these directions stand disposed of making absolute the interim directions in favour of the writ petitioners for their protection. No costs.”

Anuj Garg and others Vs. Hotel Association of India [2008 (3) SCC 1]

“21. When the original Act was enacted, the concept of equality between two sexes was unknown. The makers of the Constitution intended to apply equality amongst men and women in all spheres of life. In framing Articles 14 and 15 of the Constitution, the constitutional goal in that behalf was sought to be achieved. Although the same would not mean that under no circumstance, classification, inter alia, on the ground of sex would be wholly impermissible but it is trite that when the validity of a legislation is tested on the anvil of equality clauses contained in Articles 14 and 15, the burden therefor would be on the State. While considering validity of a legislation of this nature, the Court was to take notice of the other provisions of the Constitution including those contained in Part IV-A of the Constitution.

22. In Bhe v. Magistrate, Khayelitsha the South African Constitutional Court was required to consider the constitutionality of the Black Administration Act, 1927 (South Africa) and the Regulations of the Administration and Distribution of the Estates of Deceased Blacks (South Africa). This scheme was purported to give effect to the customary law of succession where principle of male primogeniture is central to customary law of succession. It was held by the majority that the rule of male primogeniture as it applied in customary law to the inheritance of property was inconsistent with the Constitution and invalid to the extent that it excluded or hindered women and extramarital children from inheriting property. The rules of succession in customary law had not been given the space to adapt and to keep pace with changing social conditions and values. Instead, they had over time become increasingly out of step with the real values and circumstances of the society they were meant to serve. The application of the customary law rules of succession in circumstances vastly different from their traditional setting caused much hardship.

Thus the official rules of customary law of succession were no longer universally observed. The exclusion of women from inheritance on the ground of gender was a clear violation of the constitutional prohibition against unfair discrimination. Further, the principle of primogeniture also violated the right of women to human dignity as it implied that women were not fit or competent to own and administer property. Its effect was to subject those women to a status of perpetual minority, placing them automatically under the control of male heirs, simply by virtue of gender differentiation.

41. Professor Williams in The Equality Crisis: Some Reflections on Culture, Courts and Feminism published in 7 WOMEN’S RTS. L. REP., 175 (1982) notes issues arising where biological distinction between sexes is assessed in the backdrop of cultural norms and stereotypes. She characterises them as “hard cases”. In hard cases, the issue of biological difference between sexes gathers an overtone of societal conditions so much so that the real differences are pronounced by the oppressive cultural norms of the time. This combination of biological and social determinants may find expression in popular legislative mandate. Such legislations definitely deserve deeper judicial scrutiny. It is for the court to review that the majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy. This is the backdrop of deeper judicial scrutiny of such legislations world over.

45. In another similar case wherein there was an effective bar on females for the position of guards or correctional counselors in the Alabama State penitentiary system. The prison facility housed sexual offenders and the majority opinion on this basis inter alia upheld the bar. Marshall, J.’s dissent captures the ranges of issues within a progressive paradigm. Dissent in Dothard v. Rawlinson serves as useful advice in the following terms:

“It appears that the real disqualifying factor in the Court’s view is ‘the employee’s very womanhood’. The Court refers to the large number of sex offenders in Alabama prisons, and to ‘the likelihood that inmates would assault a woman because she was a woman’. In short, the fundamental justification for the decision is that women as guards will generate sexual assaults. With all respect, this rationale regrettably perpetuates one of the most insidious of the old myths about women that women, wittingly or not, are seductive sexual objects. The effect of the decision, made I am sure with the best of intentions, is to punish women because their very presence might provoke sexual assaults. It is women who are made to pay the price in lost job opportunities for the threat of depraved conduct by prison inmates. Once again, ‘the pedestal upon which women have been placed has upon closer inspection, been revealed as a cage’. It is particularly ironic that the cage is erected here in response to feared misbehavior by imprisoned criminals.”

He also notes the nature of protective discrimination (as garb) in the following terms:

“The Court points to no evidence in the record to support the asserted ‘likelihood that inmates would assault a woman because she was a woman’. Perhaps the Court relies upon common sense, or ‘innate recognition’. But the danger in this emotionally laden context is that common sense will be used to mask the ‘romantic paternalism’ and persisting discriminatory attitudes that the Court properly eschews. To me, the only matter of innate recognition is that the incidence of sexually motivated attacks on guards will be minute compared to the ‘likelihood that inmates will assault’ a guard because he or she is a guard. The proper response to inevitable attacks on both female and male guards is not to limit the employment opportunities of law-abiding women who wish to contribute to their community, but to take swift and sure punitive action against the inmate offenders. Presumably, one of the goals of the Alabama prison system is the eradication of inmates’ antisocial behavior patterns so that prisoners will be able to live one day in free society. Sex offenders can begin this process by learning to relate to women guards in a socially acceptable manner. To deprive women of job opportunities because of the threatened behavior of convicted criminals is to turn our social priorities upside down.”

25.The learned amicus curiae has correctly contended that the statute namely the Maintenance and Welfare of Parents and Senior Citizens Act 2007 should be read in the context of the aforesaid international convention approved by the Honourable Apex Court read with Article 51 of the Constitution of India. The parents are thus statutorily recognized as dependents of married daughters and they are given statutory protection to seek maintenance treating them as dependents and that therefore, they are not mere legal representatives. Therefore, as rightly contended by the learned amicus curiae, the compensation has to be awarded to the parents of the deceased married daughter in an accident by applying multiplier method.

26.As rightly contended by the learned amicus curiae, the Delhi High Court has held, even without reference to the aforesaid enactment, that the parents of the deceased married daughter are equally entitled to compensation like the parents of the deceased son in the judgment in Smt.Ganny Kaur’s case (cited supra) and paras 7 and 16 of the said judgment are relevant for the purpose of this case and the same are extracted hereunder:

“7.It was contended on behalf of the petitioner that the general rules of succession provided in Section 15 of the Hindu Succession Act, 1956 do not provide any indication with regard to the compensation on account of death of a girl. It was submitted that this Court has to decide whether the non-obstante clause of Section 15(2)(a) would be applicable in the case of compensation and whether it would have overriding effect over Section 15(1)(b). Pertinent questions were also raised with regard to the eligibility of the parents of a married girl with respect to compensation for her death. It was also submitted that upon the marriage of the daughter, the parents do not divest themselves of their responsibility to look after her well being. The traditional view of giving away the daughter at the time of marriage for all times to come does not hold good any more. It was submitted that judicial notice can be taken of the multitude of dowry harassment cases and cases of cruelty on the part of the husband and the girl’s in-laws. In such situations, the parents of the girl have to suffer not only the financial burden, but also the mental trauma associated therewith. In this context, it was submitted that if the compensation is granted in this case only to respondent No.3, then it would run counter to all the principles of fairness and equity and would mean that the State as well as the Courts give recognition to the rights of the parents of the husband but none to the rights of the parents of the wife.

16.The compensation in question has to be viewed from this perspective i.e, standard compensation and compensation for pecuniary loss. Insofar as both these elements are concerned, there is no difficulty in straightway coming to the conclusion that the position of the petitioner is no different from that of the respondent No.3. The petitioner lost her daughter and her grand children as also her son-in-law. Kishan Singh (respondent No.3) lost his son, his grand children as also his daughter-in-law. The extent of the pain and hurt that could be suffered by both would not be any different. The agony of the loss of a daughter cannot be less than the agony of loss of a son. Similarly, the agony of the loss of the daughter’s children cannot be any less than the agony of the loss of the son’s children. I do not see how it can even be contended that the right of the respondent No.3 to receive compensation is on a higher footing than that of the petitioner. Reliance placed on the personal law of succession is of no consequence in this case. This is a matter of compensation being awarded by the State which does not function under any personal law. It only functions under the Constitution of India which has established it as a secular state. Wherever the relationship between the State and a Citizen is in issue, the personal law of the citizen has little or no relevance. Personal laws operate mostly in the domain of citizen v. citizen contests.”

27.Likewise, a Division Bench of the Kerala High Court in Anandavally Amma’s case (cited supra) granted compensation to the parents of the married daughter, who died in a road accident, by applying multiplier method. The accident took place in the year 1980. Her parents claimed compensation. The Tribunal awarded a sum of Rs.15,000/- as compensation. The Division Bench enhanced the same to Rs.35,000/-. Even without the aforesaid enactment referred to above, the Division Bench treated the parents as dependents and held that the married daughter would have contributed at least a sum of Rs.200/- per month towards the expenses of the parents. Thus, as rightly contended by the learned amicus curiae, the parents are entitled to compensation by applying multiplier method.

28.Even the judgment in Managing Director, Bangalore Metropolitan Transport Corporation’s case (cited supra) relied on by the learned amicus curiae is relating to the claim made by the married daughter for the death of her mother in a road accident. The appellant Transport Corporation therein contended that the married daughter being not a dependent, could at the most be paid compensation under Section 140 of the Motor Vehicles Act and not as dependent by applying the multiplier method. The same was rejected by the Karnataka High Court in the aforesaid judgment. In this regard, paras 4 and 5 of the said judgment are extracted hereunder:

“4.The learned Counsel for the appellant has relied upon several decisions of this Court and also the Supreme Court to contend that in case of a married daughter she is not dependent on her mother and as per Section 140 of the Motor Vehicles Act, at the most she would be entitled for Rs.50,000/- and not more than that.

5.The claimant would have incurred some expenses as her moral obligation when she is the only legal heir to look after the welfare of her mother. As such, the claimant would be entitled to some amount on the head of funeral expenses, loss of love and affection, transportation of the dead body etc., expenses. According to the claimant, her mother was doing a petty business and earning more than Rs.5,000/- per month. The Tribunal has awarded a sum of Rs.1,56,000/- towards loss of dependency by taking the multiplier of 7. However, the aspect of dependency has to be examined as to whether the mother was contributing towards the livelihood of her daughter. Although, the Tribunal has noted that the claimant was married and there is no question of loss of dependency, but deducting 50% towards the personal expenses of the deceased has awarded the above said amount. The said finding of the Tribunal cannot be found fault with. Each case has to be decided on its merits. Necessarily, if the mother had some income, although the daughter is married, she would have definitely contributed her earnings to her daughter out of love and affection that is loss of estate to the claimant’s daughter.”

Hence, I am of the considered view that the appellants are entitled to compensation by applying multiplier method.

29.On the other hand, the judgment relied on by the insurance company is not applicable to the facts and circumstances of this case. In the judgment of the Honourable Apex Court in Smt.Manjuri Bera’s case (cited supra) relied on by the learned counsel for the insurance company, the claim itself was restricted to Section 140 of the Motor Vehicles Act. The relevant passage from para 18 of the said judgment is extracted hereunder:

“18…… In the present case the married daughter of the victim (deceased) filed the claim under Section 140(2) of the Motor Vehicles Act, 1988 praying for statutory compensation on account of the death of her father……..”

In said case, the married daughter claimed compensation for the death of her father in a road accident. The same was rejected by the Tribunal as well as the High Court on the ground that she was not a dependent after marriage. In those circumstances, the Honourable Apex Court held that being a legal representative under Section 166(i)(c) of the Motor Vehicles Act, she is entitled to the statutory compensation as claimed by her under Section 140 of the Motor Vehicles Act and the compensation should not be less than the amount envisaged under Section 140 of the Motor Vehicles Act. Furthermore, it was the claim made by the married daughter for the death of her father in the road accident as stated above. That is not a situation here. Here, the parents are the claimants. The parents are to be treated as dependents as per the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Hence, the judgment is not applicable to the facts and circumstances of the case.

30.The judgment of this Court in G.Deivasigamani’s case (cited supra) relied on by the learned counsel for the insurance company is relating the claim made by the brothers and sisters of the deceased in a road accident. Their claim was rejected by the Tribunal. This Court granted compensation by applying the principles laid down in Manjuri Bera’s case (cited supra) under Section 140 of the Motor Vehicles Act. This is also not applicable to the facts of this case as the claimants are not brothers and sisters and they are the parents of the deceased married daughter. Hence, the appellants are entitled to compensation by applying multiplier method.

31.At this juncture, the learned counsel appearing for the appellants submitted that the deceased daughter’s monthly income should be taken as Rs.3,500/-. He relied on a Division Bench judgment of this Court in National Insurance Co. Ltd., Vs. Minor Deepika and others reported in 2009 (4) L.W. 223 wherein the Division Bench took Rs.3,500/- as the earnings of a house wife. Here, I am not inclined to take Rs.3,500/- as the monthly income of the deceased, since in the application itself, it is stated that she earned Rs.3,000/- per month. In the evidence, it is stated that she was earning Rs.3,000-3,500. Therefore, I am inclined to take only Rs.3,000/- as monthly income of the deceased daughter. After providing 1/3rd deduction, the annual loss of income would be Rs.24,000/-. The age of the mother of the deceased as per Ex.P8, the identity card issued by the Election Commission of India was 45 as on 01.01.2002 and it was 50 years for the father as on 01.01.2002. As per Ex.P9, the ration card given by the Civil Supplies and Consumer Protection Department of Government of Tamil Nadu in 1998, the age of the father was 44 and the age of the mother was 39. Under such circumstances, I am inclined to take 13 as the multiplier. Hence, the total loss of income would be Rs.3,12,000/- (Rs.24,000 X 13). I am inclined to award Rs.20,000/- for each father and mother towards loss of love and affection. Thus, the total compensation would be Rs.3,52,000/- and the same is rounded off to Rs.3,50,000/-.

32.Therefore, the respondent – insurance company is directed to deposit the aforesaid amount with 9% interest from the date of filing of the application to the credit of M.C.O.P.No.940 of 2002 before the Motor Accident Claims Tribunal, Fast Track Court No.1, Tirunelveli, within a period of six weeks from the date of receipt of a copy of this order. It is made clear that each of the appellant is entitled to equal compensation.

33.This Court places on record the valuable assistance rendered by Mrs.N.Krishnaveni and Mr.M.Mahaboob Athiff.

34.Accordingly, the Civil Miscellaneous Appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed. TK

To
The Motor Accident Claims Tribunal
Fast Track Court No.1

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