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Probate and Letters of Administration

A cumbersome and expensive step has been added to intestate succession in a chapter dealing with testamentary succession, probate, and letters of administration. Letters of administration (LoA) for intestate succession under the Indian Succession Act are applicable in a very limited way to a narrow class of non-Indians and do not apply to Hindus, Muslims or Christians. As of now, it is a purely voluntary exercise and seldom resorted to. The provisions relating to probate and letter of administration in case of testamentary succession, that is, when a Will exists, are also limited only to properties situated or wills executed in the cities of Mumbai, Madras and Kolkata, and are not applicable elsewhere, including Uttarakhand.

It was made compulsory for all Christians in India, and a challenge was considered by the Supreme Court in Clarence Pais v Union of India^[8] on the grounds of it being discriminatory. While the Supreme Court held that the differences were due to historical reasons and not because of discrimination, it so happened that the Amendment Act 51 of 2002 anyway removed the requirement of grant for Christians throughout India.

Muslims were also not governed by these two provisions either. Wills were recognized in Shariat to the limited extent that heirs cannot be completely disinherited by testamentary disposition and not more than a third could be willed away to persons other than the heirs, and, with the consent of heirs, the disposition could extend up to 2/3 the interest of the testator. The scope for not excluding heirs by testamentary disposition is recognised in Continental jurisprudence through legitime or quotite disponible under Code Civil that applied once to Pondicherry and is even now applicable to Goa. This is a salutary provision, and a similar provision could have been made in the Act.

The present Act makes the provisions relating to Will, probate, and letters of administration uniform but they are mere repetitions of the existing provisions of the Indian Succession Act, which are fairly elaborate, from Section 64 to 377. They also include provisions relating to preservation of estate, deathbed gifts, or succession certificates. The objectionable part is that the flexibility to make disposition through a will are now sought to be burdened with probate or letter of administration, for not only testamentary disposition but also to intestate succession. That means every time any person dies leaving behind any property, either through Will or not, the heirs cannot claim heirship without applying and securing a grant from court and incurring heavy costs through stamp duty and court expenses.

Live-in relationships

Part 3 of the Act that deals with live-in relationship is the most controversial section and plainly unconstitutional. Live-in relationships became legal with the Protection of Women against Domestic Violence Act, 2005, which made possible for a woman who had a steady relationship with a man and claim maintenance and protection of a 'shared household'. This was progressive, in the sense that a person living with a woman, although not through marriage, would be obligated to support her. It was gender specific, and the right availed only to a woman who was in a relationship with a man, to claim maintenance and protection of a household.

The relationship obtained a new dimension of acceptability when the right to privacy was upheld as a fundamental right in the Justice Puttaswamy v Union of India.^[9] The judgment of the Supreme Court contained several references to how privacy was central to the right to life, which was protected under Article 21 of the Constitution. Privacy has a deep affinity with seclusion (of physical persons and things), as well as such ideas as repose, solitude, confidentiality, and secrecy (in our communications) and intimacy. But this is not to suggest, the Supreme Court said, that solitude is always essential to privacy. It is in this sense of the individual's liberty to do things privately that a group of individuals, however large, is entitled to seclude itself from others and be private. The Court said that if this privacy were to be in any way hampered by State action through any law, it must be reasonable, non-arbitrary, and proportional.

An invasion of privacy must thus be justified based on a law which stipulates a procedure that is fair, just, and reasonable. Not only the proceeding, but the law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty, and thus a fetter on privacy, must meet the threefold requirement of (i) legality which postulates the existence of law; (ii) the need defined in terms of a legitimate State aim, and (iii) proportionality, which assesses a rational nexus between the objective and the means adopted to achieve it. This decision had a significant impact in the way it was understood, for, in yet another case in Joseph Shine v Union of India^[10], the Supreme Court recognized that consensual sex outside the bonds of marriage, which attracted the definition of adultery, was absolutely a matter of privacy at its pinnacle.

Adultery, in the way the legislation was originally framed, provided a right to complain only to the adulteress's husband, and the person who was the adulteress was seen to be always a victim and therefore not a person who could be prosecuted. Again, the wife of the adulterer-husband had no right of action. If the husband of the adulteress had no objection, even if the wife of the adulterer had an objection, no action was possible. This was found to be grossly discriminatory and archaic. Rights to sexual freedom, the Court said, are rooted in orientation, marriage, or family life, reproductive freedom, right to abortion, et cetera. It should be recognized that an action between two consulting adults cannot be criminalised.

Now, in live-in relationships, the government should have a policy on what it wants to regulate. If two adults who choose not to marry should be mandated to register the relationship, it is another way of saying they should make public what they intend perhaps to keep private, or who do not want the bondage of marriage but still desire each other's company, and they may or may not marry in future. To compel such persons to disclose that they are living together, or sign a formal document of bondage, would abnegate the very idea of persons choosing not to marry but only have a live-in relationship. So, there seems to be absolutely no rationale behind such a move of requiring registration. It is exceedingly likely that the provision is susceptible to a challenge for its constitutionality as brazenly intrusive, meaningless and arbitrary.

Repeals and savings

The last part is on repeals and savings, and it is not merely a procedural law but substantive law that affects the rights of parties as regards marriage, devolution of interest, and dissolution of marriage. It is substantive law, and could normally be applied only in future, unless specifically meant to operate otherwise. To the extent to which the Bill contemplates marriages and dissolution of marriages to also be registered, even if effected earlier, it could be seen as retrospective. But as regards the manner of succession, the requirement for having to obtain probate or letter of administration for testamentary or intestate succession can operate only in future.

As regards marriage and live-in relationships, there is a certain apprehension of what would happen to a wide category of prohibited relationships, where marriage or live-in relationships cannot exist. There is a provision that prohibits consanguineous marriages. This will impact south Indian customs of persons living in Uttarakhand, where a woman marrying her maternal uncle or first cousin related through siblings who are not in the male line are allowed, or of the Muslim custom, where marrying the first cousin related only through the male line is allowed but these classes of persons will come by new prohibitions through law.

Conclusion

The 21st Law Commission headed by Justice B.S. Chauhan took the pragmatic view that rather than enacting a UCC, family laws of every religion must be reformed to make them gender-just. It talked about the uniformity of rights and not laws. Prioritizing the guidance of expert bodies like the Law Commission rather than indulging in populist exercises is essential to foster unity and preserve harmony among communities. If anything, any UCC should not give rise to a perception of UUC, or a uniform uncivil code.

Author is a former judge of Punjab & Haryana High Court, and the founder of Madhyastham, a mediation and arbitration practice. Email: kannan@madhyastham.com

Views Are Personal 

8. AIR 2001 SC 1151. ↑

9. (2019) 1 SCC 1. ↑

10. (2019) 3 SCC 39. ↑