Critical Analysis of the Hindu Succession (Amendment) Act, 2005

The Hindu Succession (Amendment) Act, 2005 was introduced in India to amend the previously existing Hindu Succession Act, 1956. It aims at providing equality, which has been enshrined in the constitution. In this study, an attempt has been made to understand the various key changes brought in by the amendment. The impact of the amendment has been assessed and the various flaws in the amendment have also been pointed out. The findings of this study reveal that the Act has not been implemented satisfactorily.

Introduction

Hindu women have suffered time-hallowed disproportion in terms of rights related to inheritance. The first major step towards emancipation was achieved by the enactment of the Hindu Succession Act, 1956, which reformed women’s rights to a certain extent. Almost 50 years later, the Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as The Act), an amendment to the Hindu Succession Act, 1956, received the assent from President of India on 5 September 2005 and was given effect from 9 September 2005[1]. The amendment aims at ameliorating the long-standing lacuna in the legislation relating to women’s right to inherit.

The Union Government understanding its obligation under the constitution as well as different international instruments passed the Hindu Succession Amendment Act 2005 to remove gender inequalities from the realm of property law in India. The said act was based on the 174th Law Commission report as well as the amendment passed by states such as Tamil Nadu, Kerala, Karnataka, Andhra Pradesh Under the amendment, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son[2]. The amendment provides for equal treatment of a daughter and a son in relation to coparcenary rights. The amendment was mainly made to Section 4, Section 23 and Section 24 of the Hindu Succession Act. The doctrine of survivorship was completely abolished[3]. It provides women with the right to completely dispose of the inherited property at her will without any requirement of permission from her husband or father.

Major Changes Introduced Through the Amendment

The Hindu Succession (Amendment) Act, 2005 was mainly aimed at removing the inequalities between men and women concerning coparcenary properties. It recognised women’s right to inherit such property. The major changes introduced through the amendment are as follows-

1.      Amendment to Section 4(2) of the Act

The said amendment deleted Section 4(2) of The Act, which provided for exemption of agricultural property from the scope of The Act. The provision was regulated by State level tenure laws and resulted in bias against women as it was obscuring their right to capacitate agricultural land. It is a paramount step towards the long-overdue goal of attainment of equality between men and women. However, one major shortcoming of the amendment is the lack of clarity, as it has not explicitly mentioned whether the said amendment will supersede the state laws on agriculture. The Delhi High Court answered this question in Nirmala and Ors. v. Government of NCT of Delhi and Ors., in which it held that the omission of sub-section 2 of Section 4 will result in the overriding effect of the provisions of the Hindu Succession Act over the Delhi Land Reform Act.

2.      Revamping of Section 6

Before the said amendment was passed, women had negligible rights in terms of inheritance of property either from their father or husband. Women were allowed to inherit properties in only two cases, that is, a. when they received gifts from relatives and b. when they received gifts from strangers. They had absolute ownership and rights to dispose of the property for the former, whereas, for the latter, they had limited rights.

 The amendment resulted in restructuring the provision of Section 6 of The Act. The old provision was deleted and a new provision was inserted which provided that daughters become coparceners in the property of a Joint Hindu Family by birth and they have equal rights and liabilities in comparison to a son born in the same family.  The new provision states that “On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,― (a) by birth become a coparcener in her own right the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener[4].”

Furthermore, due to the said amendment, daughters continue to hold the positions of coparceners even after marriage. As the daughter has been provided with the right to become coparceners by birth, she remains to hold such right even after marriage which results in giving her a chance to even become Karta of the family.

3.      The Omission of Section 23

Section 23 of The Act deprived a female heir to seek partition of a dwelling house unless a male heir chose to do so[5]. The provision provided that a female heir could only dwell in the house if she was separated, unmarried, widowed, or deserted. Due to this section, a female heir could not claim her rights and had to depend on a male heir. The said amendment omitted Section 23 of the Hindu Succession Act.

4.      Rescinding of Section 24

Section 24 of The Act provided that any heir who is related to an intestate as the widow of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of intestate as to such widow if on the date the succession starts, she has remarried[6]. The provision was based on the assumption that a widowed woman deserves right to her deceased husband’s property only until she remarries as until then she is deemed to be the surviving half of the deceased. The said provision was rescinded by the amendment as it was based on a morally preposterous and egregious assumption.

5.      Substitution of words and changes in Section 30

The said amendment substituted the words “disposed by him or by her” in place of “disposed by him”. This amendment helped empower the female heirs to dispose of their property at will.

Impact of Hindu Succession (Amendment) Act, 2005

The said amendment has provided women their much-awaited rights. It is a constructive step in the quest to empower women. The impact of this amendment was that women were provided an equal standing with men in terms of inheritance of property. They were given rights to become coparceners even Karta (if the concerned woman is the eldest member of her family), however, a widow cannot be a Karta of a family[7]. They were also given the right to dispose of the property at will. The amendment was an efficacious step in attaining equality which has been enshrined in Chapter III, Chapter IV, and Chapter IVA of the Constitution. In a case, the Supreme Court bench said that:

“The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters[8].”

While the impact and effect of the amendment have been largely positive, a shortcoming of The Act has made it difficult for the courts to determine whether The Act is retrospective or prospective in nature. In Ms. Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar & Ors, it was held that:

“It would have to be seen when the appellants would be coparceners being the daughter of a coparcener. The section gives the right to a daughter of a coparcener “on and from” the commencement of the Act. The amended provision under Section 6 of the HSA came into effect from 9 Septemeber 2005. On and from that date the daughter of a coparcener would become a coparcener in her own right just as a son would be by virtue of her birth and she would have the same rights and liabilities as of that of a son. The devolution of her interest should, therefore, be on and from 9 September 2005[9].”

However, the above-mentioned interpretation was overruled by a full judge bench in the case of Shri Badrinarayan Shankar Bhandari & Ors. v. Omprakash Shankar, where the court held that the said act was prospective in nature[10]. This decision was affirmed in a ruling of the Supreme Court, which held that the said amendment applies to all living of living coparceners as on 9th September 2005[11].

Shortcomings of the Amendment

Even though the amendment has provided salubrious results, it still has fair amounts of shortcomings. The amendment leads to a lot of confusion and chaos and has not been able to achieve its goals completely.

The most despicable flaw in the said amendment is the retention of Article 15 and it acts as a black mark on the issues of gender parity and women empowerment. The said section recognises women only on the basis of her relationship with a man, i.e. wife, daughter, etc. Therefore, it compromises the individuality and identity of a woman.

Another flaw of the amendment is that it only focuses on daughters and wives, daughters-in-law, sisters who have not been included under the purview of the amendment.

Another flaw in the amendment arises due to the lack of clarity as to whether the said act will override and supersede the state laws or not. Section 4(2), which has been omitted by the amendment provided for exemption of agricultural land from coparcenary property. Thus, the problem arises, as agricultural land falls under the ambit of the State list.

Conclusion

Women have been subjected to discrimination since ancient times. The amendment was a virtuous step towards achieving equality. However, the implementation of the act has not been plausible. The various lacunae, which have been pointed out in the article have not been rectified and the act has led to unnecessary chaos and confusion.

Frequently Asked Questions

  1. What is the Hindu Succession (Amendment) Act, 2005?
  2. What are the changes brought in by the Hindu Succession (Amendment) Act, 2005?
  3. What is the impact of the Hindu Succession (Amendment) Act, 2005?
  4. What are the various flaws in the Hindu Succession (Amendment) Act, 2005?

References


[1] English Releases Press Information Bureau, https://pib.gov.in/newsite/erelcontent.aspx?relid=11899 (last visited Jul 12, 2020)

[2] Global Database on Violence against Women The Hindu Succession Amendment Act 2005, https://evaw-global-database.unwomen.org/fr/countries/asia/india/2005/the-hindu-succession-amendment-act-2005 (last visited Jul 12, 2020)

[3] ibid

[4] Section 6, Hindu Succession Act, 1956

[5] Section 23, Hindu Succession Act, 1956

[6] 5 G.C.V Subba Rao’s “Hindu Law” Edn 10th, 2011. Page no – 455- 456.

[7] Income Tax v. G. S. Mills AIR 1966

[8] SC clears that women born before Hindu succession act (2005) also have ancestral rights India Today, https://www.indiatoday.in/education-today/gk-current-affairs/story/supreme-court-clears-that-women-born-before-hindu-succession-act-2005-also-have-ancestral-rights-1162549-2018-02-06 (last visited Jul 12, 2020)

[9] Vaishali Satish Ganorkar v. Satish Keshaorao Ganorkar AIR 2012, Bom 101

[10] Badrinarayan Shankar Bhandari v. Om Prakash Shankar Bhandari AIR 2014 Bom 151

[11] Ganduri Koteshwaramma & Anr. Vs. Chakiri Yanadi & Anr. (2011) 9 SCC 788

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