Mar 18, 2010
The rich man’s son inherits cares;
The bank may break, the factory burn,
The breath may burst his bubble shares,
And soft white hands could hardly earn
A living that would serve his turn.
-James Russel Lowell, US poet (1819-1891).
In the case of Thomas (not the real name) the external factors factored in by Lowell didn’t do any damage to this scion of a high family of Mangalore with a large inheritence. But, Thomas made a name for himself for the wrong reasons as an incorrigible gambler, bottle-master and worse. When he came to the marriage market, search high and low, no gossip-prone and all-knowing Mangalorean parents would consider giving their daughters in marriage to Thomas. Finally, marriage brokers succeeded in locating a beautiful village lass, Maggie – like a lotus flower in muddy water - eventually leading up to the altar.
But, it was a marriage of convenience. The family of Thomas never came around to accepting her as a member of their “high family”. Thomas worked on his marital rights and in due course Maggie became pregnant and was sent to her parents, as was the custom in the case of first confinement. A chubby son, later named Charles, was born to Maggie and the happy tidings were conveyed to Thomas – only to be greeted by a wall of silence. Despite repeated pleas, Thomas’s family refused to take the mother and son back to Mangalore and, finally, made it clear that they would not be accepted.
Reconciling to the situation, Maggie went to work as a daily wage-earner and brought up Charles who grew up in age and wisdom. Thomas ceased to be a fading memory for Maggie who concentrated her life in bringing up Charles. He was good at studies and, with help from relatives and scholarships, graduated with distinction and landed a job in the Gulf. He climbed the corporate ladder double fast and sent money for the maintenance of his illiterate mother through the parish priest.
Then there was a cruel twist in the tale. Charles was literally riding in the fast lane. One day, as he was zooming in his Bentley on the Dubai- Abu Dhabi Expressway, he met with an accident and died on the spot. There was one more cruel twist in the tale because the law being the proverbial ass. When a man like Charles dies without leaving linear descendents, under the Indian Succession Act, as applicable to Indian Christians, the entire property goes to the father, to the total exclusion of the mother. So, in the case of Charles, his considerable assets went to Thomas the debaucher who had turned his wife out of her marital home and practically had his son Charles brought up as an orphan by his near-destitute mother – who is now left high and dry to fend for herself, despite her dead son’s accumulated fortune.
Into this setting enters our knight in shining armour, Chevelier Clarence Pais, leading veteran advocate of Mangalore. For him, the above story may be apocryphal, but the consequences are cruelly real and discriminatory against Christian women – as in the case of Maggie. The discrimination arises in Section 41 read with Section 42 of the Indian Succession Act.
These two sections read as follows:
Distribution where there are no lineal descendants Section 41: Rule of distribution where intestate has left no lineal descendants
Where an intestate has left no lineal descendants, the rule for distribution of his property (after deducting the widow’s share, if he has left a widow) shall be those contained in Sections 42 to 48.
Section 42: Where intestate’s father living
If the intestate’s father is living, he shall succeed to the property.
According to Chev. Pais, two approaches are open to right this wrong. One is to approach the High Court, or Supreme Court in appeal, by way of a Writ or Public Interest Petition to highlight the injustice and seek relief which involves striking down Section 42 of the Indian Succession Act and or to recommend to the Indian Parliament to amend Section 42 of the Act. The other avenue is to approach the Law Minister bringing to his notice the public opinion among Indian Christians in support of the need to amend Section 42 of the Act. Under such amendment, the wife should be put on par with the husband so that the assets of the deceased bachelor son are shared equally by both parents. In other words, Section 42 should be amended to read as follows:
If the intestate’s father and mother are living they should succeed to the property in equal shares.
Chev. Pais has excellent credentials to pursue this matter. His earlier outstanding achievement, rightly recognized by the Pope by conferring on him knighthood, relates to an earlier amendment to the Indian Succession Act. Section 213 of the Act made it compulsory for Indian Christians to probate their wills before they could be acted upon – a case of discrimination. For example, if a Muslim or Hindu dies leaving assets under his will to his widow and children, his will does not require probate. This means, not only do his widow and children save about 10 to 15 per cent of the value of assets they have inherited, but also the will could be acted on the day following the death.
In contrast, if a Christian died leaving a will bequeathing a house and cash in a bank, the entire value of his assets was charged probate duty at the hands of his widow. Apart from the tax and expenses, there was uncertainty and mental trauma in this discriminatory procedure as, for instance, if there is any objection to the will, the process of laying hands on the willed assets could drag on for years. Chev. Pais contended that this glaring discrimination offended Articles 14&15 of the Indian Constitution and, therefore, he questioned the vires of the Indian Succession Act through the higher judiciary route up to the point of review petition in the Supreme Court – which was dismissed.
Undaunted by the failure, Chev Pais moved the then Prime Minister, Atal Bihari Vajpayee, through his childhood friend, George Fernandes, and the government moved a bill in Parliament and amended the Indian Succession Act. Section 213 of the Act was amended and the Act became law on May 27, 2002.
Having been frustrated in his last experience of moving through the judicial route (time-consuming and expensive), Chev. Pais has now taken the political route by pinning his hopes on the good offices of the Law Minister Veerappa Moily. While his sympathies for the cause are not in doubt, he is presently enmeshed in a plethora of legislative initiatives of the UPA government. Chev Pais could have rested on his laurels (he is 80+ now) instead of taking up a new cause. He has shot off letters to political bigwigs and so far he has only polite acknowledgments to show for his labour. It is only proper that large mass of people supported his altruistic fight by, for instance, responding on this site or emailing to him directly – email@example.com - pledging support. These could be used as supporting documentation. In political lobbying, numbers count and you can make a difference!
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