Report No. 86
7.26. Need for clarification.-
In view of the conflicts of decisions on the above point, we are of the opinion that a clarification of the position is required. As regards the course to be adopted, we would favour a more liberal approach in the matter than that adopted by the Bombay High Court. There are, in practice, many situations in which a married daughter's attachment to the family house may be revived. Divorce, separation and widowhood are some important instances. The claim of a female with regard to section 4 should not be disregarded merely because she had married and taken up residence with her husband's family or with her husband, at another place.
Social justice demands that she should have the same rights under section 4 as any other co-sharer who has not married. Such an approach is all the more necessary in the changed social conditions, with increasing emphasis on the rights of women. Even as the section now stands, it could be so construed. However, without entering into the niceties of the correct interpretation of the section, we would, for the reasons that we have already mentioned, recommend an amendment of section 4 by adding a suitable Explanation.
Having regard to the fact that the situations to which we have made a reference above might recur frequently in Indian society, we are of the view that the law on the subject should be clarified. Incidentally, we may also mention that though the case law to which we have made a reference was concerned with Muslims, the position would not be different as regards Hindus, or, for that matter, as regards persons of any other community. In the light of the above, we recommend that the following Explanation should be inserted below section 4:-
Explanation to be added to section 4
"Explanation.-For the purposes of this section a person who is a member of the family does not, on marriage, cease to be such member."