Gender Justice In Hindu Succession
This Blog is written by Tisha Roy from NALSAR University of Law, Hyderabad. Edited by Pranoy Singhla.
“Half of the Indian population too are woman. 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 equities indignities, inequality and discrimination”
Justice K. Rama Swam
Gender justice has been far from reality in India. Women have always been discriminated on various grounds; one such ground is property inheritance and coparcenary rights. Such kind of limitations keeps women deprived of their fundamental rights and hinders their personal and economic growth. With India being largest democracy in the world and longest written constitution, steps were taken to remove the patriarchal attitude rooted in its core and provide gender justice to women. Attempts have been made to give equal property rights to Indian women and stop the discrimination faced by them.
Before the Hindu Succession Act of 1956, there were two types of property of women namely Streedhan and Women’s estate.
The word literally means ‘women’s property’. As stated by Smritikars, it consisted to those kind of properties which women gets as a gift from the relations and this included movable property such as dresses, jewellery etc. But sometimes it can be a piece of land or house.
Property falling under following is termed as Streedhan:
• Bequests and gifts from relations.
• Bequests and gifts from strangers.
• Property acquired by mechanical arts and self exertion.
• Property acquired by compromise.
• Property purchased with Streedhan.
• Property acquired by adverse possession.
• Property obtained in lieu of maintenance.
A property was termed as women’s estate if it is obtained by inheritance and its share is obtained on the partition. The woman had the absolute ownership of that property and had full rights to dispose it. She can do whatever she wants such as selling, giving it as a gift, exchanging it. This property can be given to the heir of women on or after her death.
After the implementation of Hindu Succession Act of 1956, Section 14 of this particular act lead to the introduction of fundamental essential changes in property of women under Hindu law. This act codified the Hindu law laying down the provisions on how an ancestral property will be acquired only male lineal descendents in Hindu joint family.
To proceed with the reform, Section 6 of the Hindu Succession Act, 1956, was amended. It stated that “on and from the commencement” of the Amendment Act, 2005, the daughter of a coparcener shall have a right on the coparcenary property by birth, just the way that it is with the son. The daughter also shall have the same liabilities as the son does. This concept is termed as “unobstructed heritage”. The Supreme Court’s conflicting judgements in the Phulavati Case and Danamma Case led to confusion among people. There was a dilemma as to what extent does a daughter have coparcenary rights over the ancestral property. This paved the way for an appeal in the apex court. The Supreme Court’s judgement in the case of Vineeta Sharma v Rakesh Sharma cleared the air and provided clarity on how a daughter of a joint Hindu family is also a legal heir and has the right to inherit the coparcenary property.
The Hindu succession act of 1956 brought the survivorship rule which meant that the property devolves upon the survivor only after the death of common ancestor. Under this rule only male heirs were the lineal descendents of the ancestor and use to have coparcener rights.
Before the amendment, under Section 6 of Hindu Succession Act of 1956 – “Devolution of interest in coparcenary property- When a Hindu male dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act”.
The ideology and philosophy behind this act was that women will be married one day and be part of another family that’s why she should be considered a coparcener legally. Women had absolute ownership on the property she owned, but they did not have the right to be coparcener in ancestral property. These provisions or rather whole act was discriminatory in nature. Later, the lawmakers felt the need to make a gender neutral law, giving equal property rights to the women of India. Thus the existing act of 1956 was amended and the Hindu succession (Amendment) act, 2005 came into the existence.
This act of 2005 gave equal rights to women to be the legal heir and coparcener just like men. Coparcener means any person who has right to inherit the ancestral property by birth and coparcener property is an inherited property by any Hindu from father or grandfather etc. This act of 2005 amended the provision which didn’t give right to inherit coparcenary property. After its amendment if in case a Hindu dies then that case ancestral property shall also be allotted to daughter just like sons. Through this amendment survivorship rule was replaced by testamentary and intestate succession. By this amendment, daughter by her own choice dispose off her part of ancestral property. The date of 20th December 2004 was fixed to limit the reopening of past settlements. This development made easy to apply the law retrospectively. The court decided that partition of daughters share cannot be rejected on the basis of oral family settlement supported by documents.
So in by this amendment gender discrimination aspects of 1956 act were cut off and new act of 2005 became more gender neutral act, enabling women as coparceners inheriting Mitakshara coparcenery property. However, the Amendment Act came with its ramifications of legal ambiguity.
Prakash & Ors v. Phulavati & Ors.
The apex court stated that “the rights of coparceners under the Amendment Act, 2005 apply to the living daughters of living coparceners as on 9th September 2005, irrespective of the birth date of daughters.” This means that the living daughter would have no right to inherit the property if her father passes away before 9th September 2005. It case interpreted the amended act of 2005 and stated that its provisions shall not be applicable in the cases where coparcener has died before the date of commencement of the act of 2005.
Danamma v. Amar Singh
In this case, it was stated by the apex court of India that if in case father being the coparceners passed away before the date of 9th September 2005 and partition suit by male coparcener is pending, then female coparceners also have right to share. It was observed by the court that provisions of section 6 are functional in retrospective way conferring absolute rights on the daughter to be coparcener since birth. But decisions of this case and Phulavati’s case were varied and gave birth to conflicting views and divergence of questions on the issue of coparcenary rights of daughter. This all led grant of apple in the Supreme Court of India.
Vineeta Sharma v. Rakesh Sharma & Ors.
In this landmark judgement given by the Hon’ble Supreme Court of India said that since ages women were kept away from their coparcenary rights and equal rights must be given to them respective of retrospective or prospective enforcement of the Hindu succession act of 2005.
Talking about Section 6 of the Amendment Act of 2005, court put forward the opinion that it is the right of the coparcener to inherit the ancestral property by birth and thus it is the necessity that father i.e. coparcener has to be alive as on the date of commencement o9f the amendment. It is explained by section 6(1) (a) of the act of 2005 that coparcener has the birthright to inherit the property (unobstructed heritage). The right of being coparcener by the daughter are not by obstructed heritage but rather by her birth. Therefore, the concept laid down in case of Phulavati was overruled. The court explained the concept of retroactive application and said that this concept gives women the right to get benefit of the ancestral property succession on the basis of birth.
From time to time attempts have been made to eradicate the patriarchal mindset and try to give equal property rights to women like men, latest judgment is major step in the right way to reach the aim. There is a long way to go to reach the point where women can have the equal inheritance rights under Hindu law. Though the latest judgement has been said as progressive, it too has several drawbacks and loopholes. In this judgement, the Hon’ble Supreme Court of India didn’t overrule the decision given in the case of Uttam v. Saubhag Singh. The court stated in this particular case that if the coparcener dies then property which will be devolved to his widow and children will not be devolved as ancestral property but a separate property. Its affect would be that coparcenary system will come to an end; inheritance held by various coparceners would become fixed giving to greater inheritance rights to widows and sons leaving behind daughters. So in this case share of coparcener will devolve as separate property on his heirs leading to no coparcener property in 2005 for women to claim in their share. Further, the succession rules for Hindu females are same which were brought by the Hindu Succession Act of 1956. It does not clarify interest of Hindu Females. It does not explain whether provisions for male will be applicable for women also.
There is even ambiguity on self acquired property of Hindu women as when the act of 1956 was constituted it was nearly impossible for women to have property of their own called self acquired property. The heirs of her husband have more right in property as compared to her own relatives .The problem regarding this provision was seen in the case of Omprakash v Radhacharan.
Also there is still ambiguity regarding the legally adopted daughters as in the amended act of 2005 this term is mentioned nowhere and her rights of inheritance of her coparceners’ property. Another flaw is the lack of clarity as will the said act supersede the state laws or not. Section 4(2) has been left out by the amendment which provided for exemption of agricultural land from coparcenary property, giving rise to the problem, as agricultural land falls under the ambit of the State list.
“Several legal reforms have taken place since independence in India, including on equal share of daughters to property. Yet equal status remains elusive. Establishment of laws and bringing practices in conformity thereto is necessarily a long drawn out process. The government, the legislature, the judiciary, the media and civil society has to perform their role, each in their own areas of competence and in a concerted manner for the process to be speedy and effective”
Justice Sujata V. Manohar
So it can be concluded that, latest judgment is fruitful attempt to challenge and change the patriarchal norms of the society and patriarchal nature of succession laws. It is not the exclusive and sole right of men to possess and manage the property. However, this development took a long time to evolution of such change. This judgment has the potential to change the lives of various women on ground level. The judgment is progressive in nature and will bring social, economic and cultural changes and remove various barriers which make women to be in vulnerable position. It cannot be denied that it do have certain loopholes which need to be looked upon and considered but it is a step in right direction to reach the goal of gender quality.
(1) Prakash & Ors. v Phulavati & Ors. (2015) SCC Online SC 1114
(2) Vineeta Sharma v Rakesh Sharma (2020) – SCC ONLINE SC 641
(3) Hindu Succession Act, 1956
(4) Hindu Succession (Amendment) Act, 2005
(5) Daughters have coparcenary rights by birth even if father died before the Hindu Succession (Amendment) Act, 2005 came into force-https://www.scconline.com/blog/post/2020/08/11/daughters-have-coparcenary-rights-even-if-parents-died-before-the-hindu-succession-amendment-act-2005-came-into-force/
(5) Towards gender equality- https://www.thehindu.com/opinion/open-page/towards-gender-equality/article32530848.ece./
(6) Vineeta Sharma v. Rakesh Sharma: Clearing the last hurdle towards gender equality in Hindu property law