Equal Coparcenary Rights of Daughters Under 2005 Act

The struggle for equal status for women isn’t only demarcated to India. Feminist movements all over the globe stand testimony to the fact that females have always been undermined treated as secondary, yoked citizens. The subject of inferiority existed not merely in society but sustained in the matter of privileges and rights. The study will provide a complete understanding of the evolution of the Hindu Succession Act 1956, highlighting the need for the Hindu succession amendment Act, 2005. Thus it was instituted that the concept of coparcenary has come a long way and has undergone many changes. The study will outline some of the changes that have transformed Indian patriarchal society, to suffice the far fetched need to create social awareness and to educate people to change their attitude towards the concept of gender equality.

Introduction

The Hindu Succession Act, 1956 was the most crucial of reforms since it had to with property, which is a key to gender equality and empowerment. To begin with, Coparcenary is a term used in matters related to Hindu Succession Law. It refers to a person who has the capacity to assume a legal right in his ancestral property by birth. It means ‘unity of title, possession, and interest’. It is purely a creation of law; it cannot be created by the act of parties, except by adoption. It is directly derived from the concept and practice of Hindu undivided family. Another term, coparcenary rights in consonance with coparcenary is defined as one which is inherited by a Hindu from his/ her father, grandfather or great grandfather. Only a coparcener has the right to demand a portion of a property. Share in a property increases by death or birth in a family.  

However, the substitution of  Section 6 of the Hindu Succession Act, 1956 confers the status of coparcener on the daughter born earlier with effect from 9th September 2005. The major flaw that was observed that they will not be able to question the disposal or alienation of the ancestral property by the existing coparceners prior to December 20, 2004, which was outlined in Section  6. On 11th August 2020, the apex court of India in its Landmark Judgement ( Vineeta Sharma v. Rakesh Sharma) held that daughters would have equal coparcenary rights in Hindu Undivided Family properties even if they were born before the 2005 amendment to the Hindu Succession Act , 1956 and regardless of whether their father coparcener had died before the amendment. The Court  observed  that :

  • The provisions contained in substituted Section  6 of the Hindu Succession Act, 1956 confer the status of coparcener on the daughter born before or after amendment in the same manner as a son with the same rights and liabilities.
  • he rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition, or testamentary disposition which had taken place before the 20th day of December 2004.
  • Since the right in coparcenary is by birth, it is not necessary that the father coparcener should be living as on 9.9.2005

The three-judge bench of justices Arun Mishra, S Abdul Nazeer and MR Shah passed the verdict in a reference that was made in appeals raising the issue of whether the amendment to the Act granting equal rights to daughters to inherit ancestral property would have retrospective effect. The judgment brings lucidity in the interpretation of Section 6 and provides transparency with respect to the contrarian view in precedents as:

  • In Prakash v. Phulavati, the Supreme Court had held that “the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born.” In other words, if the coparcener had passed away prior to September 9, 2005 (the date on which the amendment came into effect), the living daughter of the coparcener would have no right to coparcenary property.
  • In Danamma v. Amar, the Supreme Court had held that the 2005 amendment confers upon the daughter the status of a coparcener in her own right in the same manner as the son. Thus, it confers equal rights and liabilities in the coparcener properties to daughters and sons.

Through the judgment, it was outlined that a daughter is forever a daughter and son is no more son after he gets married and starts a new life with his wife because of which it becomes absolutely necessary to understand whether equality exists only as a phenomenon or it is actually present for the awareness and approval of the majority of the people. It should not be solely realized by placing a Section of women in traditions of inequality.

Historical Analysis

Prior to the codification and introduction of legislation, there were two schools of thought to regulate and administer Hindu laws:

  1. The Mitakshara Law  School
  • The term is derived from the name of a commentary written by Vijnaneswara on the  Yajnavalkya  Smriti.
  • It is observed in all the parts of India which are Subdivided into Benares, the Mithilia,  the Maharashtra and Dravida Schools.
  • A son by birth acquires an interest in the ancestral property.
  • All the members enjoy coparcenary rights during the father’s lifetime.
  • The share is neither defined nor it can be disposed of.
  • The female cannot demand rather she has the right to a share in any partition between her husband and her sons.

2. The Dayabhaga Law School

  • The term is defined from a similarly named text written by Jimutvahana.
  • Prevails in Bengal and Assam.
  • The son has no automatic relationship instead he acquires it on the death of his father.
  • The sons do not enjoy ancestral rights when the father is alive.
  • The share is defined and can be disposed of.
  • The same right does not exist for the women as sons demand partition as the father is the absolute owner.

In the Hindu succession Act of  1956 is the parent of all the Acts subjected to succession rights, there were also some of the other’s Acts which played a key role in shaping the structure of the democratic transition of the Indian Succession Act. The  Hindu Law of Inheritance Act, 1929 was the first legislation that came into force related to the rights of inheritance and succession. The Act conferred rights of inheritance upon three heirs which are his son’s daughter, granddaughter and sister. Another landmark legislation that shunned the other was the Hindu Rights to Property Act, 1937 conferring ownership rights on women. The law bought major reformation, then followed customary laws and schools of thought, the Act also affected coparcenary laws, partition laws and laws of property, inheritance and adoption. It also evaluated the rights of women and widows and divorces. Prior to this, there was to such codified law to deal with the problem and disputes were resolved using customary practices. Now the one which resulted in a transitional change of democracy, The Hindu succession Act 1956 which relied upon equality as stated by article 14 of the constitution of India. The Act declared daughters as legal heirs of their father and received the rights of inheritance of a share of the separate property owned by the father through the national partition. The Act of in pursuit of living the status of women in the society by inhibiting them with the share in their father’s property.

Another satiating reform was when the Hindu succession Amendment Act of 2005 was enacted with the aim of expanding the rights of women and daughters of the family and to bring them at par with the male members. Through this amendment, the daughters of the family whether married or unmarried will gain coparcenary rights with other entire rights and liabilities with that of a son. Section 6 of the most is one of the most debatable issues that has challenged the fundamental principles of Hindu coparcenary law. Through this, both married and unmarried were given equal rights over the coparcenary as the sons of the family. It also establishes the fact that females could now act as a Karta of the family. Thus it was observed that the 2005 amendment has modified, deleted and introduced many favorable laws that are truly conducive to promote female property rights. Some of them are discussed individually:

  • Deletion of Section 4(2) : The provision embedded the roots of patriarchy all the more deeply, especially pertinent to rural areas. The provision allowed regional customary laws to mandate the devolution of agriculture property, tenancy and landholding capacity of the women, such practice may uproar the stigma of gender discrimination, thus the Section was effaced completely.

Changes in Section 6 of the Act

  • Section 6(1): Daughters made a coparcenary. The daughter by birth owes the same ancestral rights with respect to the son. The daughters could start a joint family; however, the prerequisite condition to have at least 1 male for the genesis was scrapped down, provided they could add a male either by Hindu or by adoption. The women were also empowered to become the Karta of the joint Hindu family.
  • Section 6(2):  The female now held the property with all the incidents of ownership and disposition- unity of possession and communities of interest. Though the Act doesn’t enlist the incidents, it can be concluded that a daughter now had every right as equal to the male siblings.
  • Section 6(3): The doctrine of survivorship was abolished and replaced by the doctrine of succession, however, the principle of national partition was retained subject to modifications.
  • Section 6(4): The term pious obligation was in consonance with classical Hindu Law that the son was under a religious mandate to pay the debts contracted by his father which extended to grandsons and great-grandsons. It was postulated that even before paying back his own debt, an ideal son should unburden his ancestors and when such happens only the son would achieve salvation. However, this provision was discontinued and now the son is under no obligation to pay the father’s debt.
  • Section 6(5): This Section states that the amending Act has a prospective application with effect from20th December 2004. It also specifies that only written partition, duly registered under the Registration Act, 1908, or the partitions, affected by a decree of Court, are recognized. Prior, even oral partitions were given cognizance by the Courts, which led to a lot of confusion.
  • Deletion of Section (23): It stated the right of any female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein. Moreover if such a female was a daughter, she shall be entitled to a right of residence only if she was unmarried or has been deserted by or has separated from her husband or his widow. The Act did away with this prejudicial Section, enabling the female to claim there proportion.
  • Deletion of Section (24) : This Section was unsympathetic to widows who remarried, including the widow of a predeceased son; predeceased son of a predeceased son and a brother. Once she remarried, she ceased to be a member of the deceased husband’s family, and not eligible to a share in his property. Since she was excluded from the family, so were her heirs. the Act ensured that widows get their rightful share after they marry again. Widow Remarriage is to be encouraged in society, but limiting the proprietary rights of a widow, when she tries to reinstitute her life, should not be allowed to exist in law. 

Conclusion

Such transitional change and continuous evaluation of laws must be acknowledged in order for the betterment of women resulting in the creation of women-friendly laws and unquestionably restoring faith for gender equality. If such laws are made and implemented accordingly it will surely increase the chances of financial security for women and would support them to combat through various forms of gender-based violence subjecting to natal and marital families. Apart from rectifying technical glitches and elucidating upon nebulous areas of the Act, there is a need to interpret the law more benignly, to realize the prime thrust behind the Amendment. The onus of effective implementation lays in the society too in ways like spreading awareness, legal education, setting up legal forums for discussion of the problems encountered in the application of the new laws, etc. It can always be hoped that Hindu Succession Act brings to fruition what was aspired by it at the time of its inception, reinforcing women’s rights and reinstating their long lost esteemed stature and grandeur.

References

  1. Prachi  Bhardwaj “ Daughters have coparcenary rights by birth even if the father died before the hindu Succession”. (11th august, 2020). 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/.
  2. Balwant jain “ Property rights of a Hindu daughter”. (11th august, 2020). https://housing.com/news/these-are-the-property-rights-of-a-daughter-in-a-hindu-family/.
  3. The lawyers club India. https://www.lawyersclubindia.com/articles/the-concept-of-coparcenary-its-past-present-and-future-in-the-hindu-concept-of-joint-family-8193.asp.
  4. The law teacher” history of women’s right”(14th august, 2020) https://www.lawyersclubindia.com/articles/the-concept-of-coparcenary-its-past-present-and-future-in-the-hindu-concept-of-joint-family-8193.asp.
  5. The Hindu “ right by birth”( 14th august, 2020). https://www.thehindu.com/opinion/editorial/right-by-birth-the-hindu-editorial-on-daughters-and-hindu-succession-act/article32347299.ece.
  6. Prabha  Sridevan “ for gender equality in ancestral property”. (14th august,2020). https://thewire.in/law/hindu-personal-law-gender-equality-ancestral-property-coparcenary-supreme-court.
  7. Hemant More “ the Hindu Succession act, 1956”.(3rd october,2020) https://thefactfactor.com/facts/law/civil_law/family_laws/hindu-laws/hindu-succession-act/3829/.
  8. Pragya roy “ Hindu succession act 1956”.(13th august ,2020) https://feminisminindia.com/2020/08/13/hindu-succession-act-1956-rights-into-gender-equal-realities.
  9. Ishita khare “ traching womens right to succession”. https://www.indialawjournal.org/archives/volume8/issue-1/article7.html.

Questions

Q1. What’s the most crucial reforms made in the 2005 Act?

Q2. What changes were made in Section 6 of the Act?

Q3. What was held in Prakash v. Phulavati case?

Q4. What did Supreme Court held in Danamma v. Amar Case?

Leave a Reply

Your email address will not be published. Required fields are marked *