The Constitution of India provides equality before law and equal protection for all the citizens and prohibits any discrimination based on gender, race, caste, creed or religion. The Constitution also contains various provisions for the empowerment of women and uplifting them in the society. This concept of discrimination based on sex is called ‘positive discrimination’ as there is a need to protect as well as empower the females as they have been facing gender discrimination since time immemorial.[i]
The concept of equal social status for women includes their right to hold and inherit property just like their male counterparts.[ii] Most of the civilised societies are focused on ensuring that the women’s inheritance rights are safe and secure.
Despite all the provisions which support in uplifting women of our society, there still exists high degree of discrimination against women due to the huge dependency of the Indian Laws on religious Hindu texts which are regressive & orthodox in nature.
The legislative changes can never be the key to initiate a change in the society as the individuals on their own have to develop such a mind-set which is not narrow minded or prejudiced with regard to women. The conservative and orthodox society is also of the opinion of not putting men and women on an equal pedestal which is backed by these regressive laws. It is rightly said that ‘Charity begins at Home’ i.e. to say in order to change the society, it is the individuals who shall bring a change in themselves first. Even in the 21st century which is considered the ‘Era of NewAge’, women are still looked down upon when she remarries after being a widow or when she has to ignite the funeral pyre of her husband.
The disparity and gender discrimination with regard to property rights is deep-rooted and can be traced back to the ancient times. The Mitakshara and the DayabhagaSchools governed the legal doctrines of inheritance of the property. The Dayabhaga School is largely followed in Assam and Bengal, whereas the Mitakshara School is observed in most of the Northern and parts of Western India.[iii]
Under the Dayabhaga School, son acquires the right in property only after the death of his father, but in Mitakshara,on birth, the son acquires the right and interest in family property. According to Mitakshara School, no female member is the member of the Coparcenary but the son, grandson and great grandson constitute a class of coparceners, that is to say the daughters were not given a ‘ Birth Right’ in the ancestral property.[iv]
Position of Women prior to the enactment of Hindu Succession Act, 1956:
Prior to the formation of Hindu Succession Act, Hindus were governed by the diversified Shastric and Customary laws which varied from region to region. These laws provided benefit to the male and were discriminatory in terms of rights provided to women.[v]
In different regions, different schools are followed:
- Dayabhaga in Bengal and Assam, Bombay used Mayukha, Gujarat used the Konkan system, Kerala used the Nambudri, while most of the Northern India and parts of Western India followed the Mitakshara.
Before the enactment of Hindu Succession Act, 1956, there were many legislations which existed and provided the rights of property to women in a limited format.
Hindu Law of Inheritance Act, 1929, is the earliest piece of codification which brought woman into the scope of inheritance. This Act bestowed inheritance rights on three (3) female heirs only which was the daughter, daughter’s daughter and sister. Even though, this was an initiative to bring women into the purview of inheritance but it limited their role and scope.[vi]
Hindu Women’s Right to Property Act, 1937, brought radical changes and was a landmark legislation which conferred ownership rights on women. This act enabled the widow to succeed and to take a share which is equivalent to her son. But the daughter had no inheritance rights.[vii]
Despite the various enactments which somewhat incorporated rights of women, there still exist certain anomalies and defects which had to be taken care of and looked into. Further, these acts have been repealed.
Section 6 of the Hindu Succession Act,1956 (hereinafter referred to as the Act) provides that the interest of a coparcener who has died intestate i.e. without a will, the property shall devolve onto others by rule of survivorship.[viii]
Section 6 of the Act basically provides that if a male Hindu dies leaving behind his share in the Mitakshara Coparcenary property, such a property will pass onto his son, son’s son, son’s son’s son by survivorship.
According to S.6 of Hindu Succession Act, 1956, if the person dies leaving behind a surviving female relative which is specified in Class I or Scheme 1 or any other male relative who claims the property from the female, such an interest in the property shall devolve based on the Testamentary or Intestate Succession and not by Rule of Survivorship.[ix]
The Hindu Succession Act has been in existence for a very long time and has all along continued the discriminatory provisions. But five states in India namely Kerala, Andhra Pradesh, Tamil Nadu and Maharashtra and Karnataka were the first five states who took initiative to end the disparity and bring the women on an equal footing in economic and social spheres. These States inserted provisions which stipulate that the daughter has been made a ‘ coparcener by Birth’ in Joint Family Property like the son or in the same manner as son.[x]
Position of Women after the Hindu Succession (Amendment) Act,2005[xi]:
Hindu Succession (Amendment) Act, 2005 was passed in order to remove the gender disparity existing in the laws and provisions and to give equal rights to daughters which are given to the son as in Mitakshara Coparcenary property. This act focused on bringing about two major changes –
- Amended the provision of Hindu Succession Act,1956 which excluded the scope of inheritance and the right of daughters from the Coparcenary Property.
- Omitted S.23 of the Actwhich disentitled the female heir to ask for partition in respect of a dwelling house and got them the right to have their share or to ask for partition of the property which is wholly occupied by Joint Family which was hitherto not available to them and property could be partitioned only when the Male heirs chose to divide their respective shares.
After the Amendment of 2005 of the Hindu Succession Act, 1956 in Section 6, Now the Daughters are also considered as Coparceners. 174th Law Commission Report, 1974 recommended that it should aim to remove gender inequality which was laid in the form of Hindu Succession Act, 1956. The following are the few landmark changes which were introduced through the amendment:
- It changed the concept of MitaksharaCoparcenary and accordingly all daughters are Coparceners in Joint Family irrespective of their family or marriage., it helped them economically and symbolically it abolishes the Doctrine of Survivorship.
- The Daughters shall have the same rights in CoparcenaryProperty as that of the Son and same share shall be allotted to the daughter as it is allotted to son.
- She can even be a Karta, where she is the senior most member and she will continue to be the Karta even after her marriage through her self acquired earnings into the JointFamilyFunds something which was not possible before the Amendment. However, she may face practical difficulties in managing the affairs of both thefamily or managing the affairs of her natal family after her marriage.
- As a Karta, a female will be entitled to represent the family and can even acquire the status of the head of the family.
- After the Amendment of 2005, where a Hindu dies his interest in the Joint Hindu Family shall devolve by testamentary or intestate succession and not by survivorship.
In Prakash & Others v. Phulavati and Others[xii], the Supreme Court said that it is not necessary that the daughter had to be born after the amendment to claim the benefit of the amendment. The Court also held that the rights under the amendment applied to a living daughter of a living coparcener as on 9th September 2005. Also, the partition affected before the 20th December 2005 would remain unaffected by the amendment.
Therefore, now the date of birth and date of marriage of the Daughter is immaterial. Only relevant thing is that both the daughter and father had to be alive on the date of amendment for the daughter to get the benefit, irrespective of whether she was married or not on that date. The Amendment Act is prospective in nature, that it is only from 9.09.2005 onwards that the daughters would be considered as Coparceners and have an equal share as that of sons in the Joint Family Property, but this does not mean that daughter has to be born anytime before 2005 to claim her share.
S. 23 of the Act,was omitted after the amendment as when females who were deserted from their husbands due to domestic issues were not able to seek shelter as generally their natal homes were not willing to accept them as a woman returning to her native home post her marriage as this was considered as a sign of broken marriage and disgrace and is looked down upon.
S.24 of the Act, stipulated that a widow who will remarry would not be entitled any share in deceased Husband’s property and would stop being a member of the family. As per the 2005 Amendment, S.24 was omitted as it was seen as regressive provision which lacked a legal base and also caused gender inequalities. Another major reason for the amendment was the fact that even though a lot of women are making progress and are able to live their lives independently but at the same time at the grass root level, women are still dependent upon their husband for the fulfilment of their needs.
The Court in the case of Cherotte Suganthan v. Cherotte Bharath[xiii], laid strong emphasis on how after the enactment of the amendment of the Hindu Succession Act , a widow post her remarriage can claim her share of property putting her at an equivalent position to that of a widower.
The basic objective of the amendment of Hindu Succession Act was to alleviate those provision whereindiscrimination of a particular gender persisted. Even after these amendments, the real test lies in the fact that social and cultural awareness has to be initiated amongst women about their rights. It is essential to make women realise and understand about their rights because generally there is not much awareness about the same and therefore women relinquish their rights without knowing much about and suffer deprivation. Therefore, it is important for not only the Judiciary but also all the other individuals of the society to make sure that these rights are granted and enforced and are not taken away or violated. It is also equally essential that the society accepts in letter and spirit the paradigm shift which is given by the legislature to the status of the women in our polity and conservative Hindu society and the society welcomes this initiative of women empowerment with open arms contributing its bit in achieving the optimum results thereof.
[xii] (2016) 2 SCC 36
[xiii] (2008) 2 SCC 610