Daijiworld Media Network - Mangalore (SP)

Mangalore, Sep 10: Veteran advocate and notary from the city, Clarence Pais, has pointed out that a section of the Indian Succession Act is discriminatory in nature, as far as the interests of the women are concerned.

The advocate has said that his efforts at the emancipation of the Indian Christians from the scourge of probate and probate duty, succeeded with the parliament bringing an ammendment to section 212 of the Indian Succession Act under Act 26 of 2002, even though initially, the efforts had met with failure in the Supreme Court, vide a decision reported in AIR 2001 SC 1151. This was a case of discrimination affecting all the Indian Christians, he has stated.

The senior lawyer has now pointed out that there is another provision in the Indian succession Act that discriminates against the Christian women. The discrimination, he has stated, becomes evident when section 41 of the Act is read with section 41 of the same act, which read as follows:

Distribution Where There Are no Lineal Descendants

Section 41: Rules of distribution, where intestate has left no lineal descendants:

Where an intestate has left no lineal descendants, the rules for the distribution of his property (after deducting the widow's share, if he has left a widow) shall be those contained in section 42 to 48.

Section 42: Where intestate's father is living, he shall succeed to the property.

To make clear the discrimination here, the respected advocate has given a hypothetical case. There is a family with a husband, wife and a son. During the childhood of the son, the husband deserts his wife, or might even divorce the wife. The wife is thrown to the streets. The dutiful wife begs, borrows and somehow, educates her son and the son gets an employment in the Gulf or anywhere else. The son is still a bachelor. He has earned a fortune for himself and is the only support for his mother in her old age. Suddenly, he is killed in an accident at the place of his work.

Now, under section 42 of the Indian Succession Act, the entire fortune owned by the bachelor is inherited by his father. The resulting misery caused to the mother, by the loss of her only son and her only support, is beyond imagination. She becomes a pauper.

Clarence Pais says that to remedy the situation, a two-pronged approach is advisable with the cooperation of Christians and Christian organizations. The Supreme Court will have to be approached by way of a writ or public interest petition, to highlight the above injustice and to seek relief. The relief will be to strike down section 42 of the Indian Succession Act and/or to recommend to the Indian Parliament to ammend section 42 of the said act.

Secondly, the Law Minister will have to be approached, bringing to his notice the public opinion of the Indian Christians, in support of the need to ammend section 42 of the act. Under the ammendment, the wife should be put on par with the husband, so that the fortune of a deceased bachelor son is shared equally by both his parents.  Accordingly, section 42 should read as thus: 'If the intestate's father and mother are living, they shall succeed to the property in equal shares'.

Advocate Clarence, having his office at Law Chambers, Light House Hill, Mangalore - 1 (Ph: 2423410 (O), 2426726  (R), Mob: 9449821928, email: paisclarence@gmail.com) says, a feed back to him from interested Christians and Christian organizations are most welcome. He also has informed that without much loss of time, a lawyer of the standing of Soli Sorabji or Fali Nariman will be contacted on the issue.