This Research Paper is written by Dipali Jagannath Nikam, a Fourth Year BLS. LL.B (Hons.) Student at Rizvi Law College, Mumbai University.
From time immemorial it has been believed that the property of a family belonging to the male counterparts and female were either been treated as subservient or dependent on male support. (1) The law that governed the Hindus were Shastric and Customary Laws which were region-specific during the British Raj and was later scrapped to bring it in the same tone with the evolving thoughts of the world on equitable inheritance and was introduced as Hindu Succession Act 1956, but it did no to little change in the law towards the woman and remained same in every aspect and though they had a right to sustenance in the new law but they were not given control or ownership in the property. (1) The 2005 Amendment on Hindu Succession Act brought with it much better relief, the society was looking for. With the world moving forward towards equality and gender indiscrimination, India too made the necessary changes to the law which was Patriarchal and Androcentric in nature. The new law gave equal rights to the daughter (married and unmarried) along with the son in the property of the father. Yet with time, it was seen that there were instances of the law which brought forward new cases and the courts had to make decisions based on a case by case term. There were cases where the court ruled in the favour of the son, if the daughter was born before the 2005 amendment or if the father died before the law came to effect but a recent judgement paved the way to the new era where equality is a path towards prosperity. The Supreme Court decided that a daughter would have equal rights and liabilities as a son irrespective of her date of birth. (2)
Before we move to understand the effect of 2005 amendment in the Hindu Marriage Act we must understand that The Hindu Succession Act 1956, The Hindu Marriage Act 1955, The Hindu Adoptions and Maintenance Act 1956 and The Hindu Minority and Guardianship Act 1956 are all part of Hindu Code or largely known as Hindu Codified Law or Hindu Law. (3) So any changes in one Amendment will have some effect in the other cohabiting act. And out of the four acts, The Hindu Marriage Act of 1955 has a lot of common factors with The Hindu Succession Act as it impacts the women on larger grounds.
The Hindu Succession Act of 2005 gives an opportunity to the daughters to also be part of the father’s property. So a business which was usually run by the male counterparts and it used to be passed on from father to son and so on will also give daughters an equal share and partnership to the property. This was a landmark judgement as the women had suffered a lot in the patriarchal society and had always been believed as a dependent to the man and with this judgement, they were given not only an equal share but equal opportunity to grow. There are many businesses today which are run by women and are successful and some of the credit goes to this amendment which made it possible for every woman.
The Hindu Succession Act of 2005 which made it possible for the women to have equality opened doors to many sectors. The daughters who were thought as someone who would in future be a part of another family were given rights which meant that a daughter who is married has also shared her father’s property which includes his business and it opens the door to so many opportunities for them. They not only gain the right of property of their father but also that of husband. The daughter will also have the same right in the ancestral property of the Hindu Undivided Family as the son. The amendment also revoked the section 23 of the Hindu Succession Act which deprived the female heir of the house to ask for partition in the joined family house until the male heir of the house chose to divide the shares. It also revoked the rights which were denied to the widow on the husband’s property upon her re-marriage. It also gave an amendment which is universal for the country and the states to adhere to. (4)
Cases that brought the necessary changes in the Amendment
The 2005 amendment brought with it a lot of changes in the succession but it also opened the doors for women to be part of the property which until then was only son’s to share. But the amendment also brought with it many such situations along with it which opened floodgates of related cases. The courts followed their own decision on a case by case basis wherein in some cases the daughters were provided with the rights and in some, there were not. Though both stayed correct in their own interpretation of the amendment. The amendment was made on 9th September 2005 but the following condition prevailed with it that any property that is sold or portioned before 20th December 2004 then the daughter will not get the benefit of the partition amount. Also to get the benefit, the property must be undivided and must exist on 20th December 2004. (5) The recent judgement by the Supreme Court abolishes such condition and the women will be given equal share irrespective of the division of the property or the sum of the amount if it is already partitioned.
The judgement was based on the reflection of the Vineeta Sharma v. Rakesh Sharma & Ors. Case and a batch of tagged cases, Prakash & Ors v. Phulavati & Ors and Danamma@ Suman Surpur & Anr. v. Amar & Ors. Which was similar and was given conflicting judgement. The contentions of the case were the exclusion of daughter from coparcenary, the rights of the daughter doesn’t change with the partition of the property and the rights provided to the daughter are by birth and with the death of coparcener, it does not change. The submissions made by the parties was that there was no conflict of decisions between both the cases and it had followed section 6 in both cases and that the scheme of section 6 is futurist and forward-looking (6)
The final decision on the case was made on the basis that the rights mentioned under section 6 are by birth and thus it has an effect even in the properties or cases prior to the amendment date. If any right is provided by birth then it does not change in the event of the death of the father or married into another family, it should remain unchanged forever. The provisions provided in section 6 are retroactive and not retrospective in nature. A mere filing of a suit for partition doesn’t automatically give the benefit of partition but any new changes in the law should also be considered before giving the verdict. The right to the claim at the property should be the subject of any alienation or disposition of the same or partition that has happened before 20th December 2004. (6)
The court commented that a father need not be alive on the date of the 2005 amendment for the rights to be given to the daughter and she gets it by birth. The rights are also conferred to the daughter if she is alive irrespective of whether she was born before or after the amendment. If the property is self-acquired the daughters are class I heirs and have an equal share to that of a son. And in case of ancestral or father’s joint family property, the daughter will have rights equal to that of a son. (6)
As mentioned earlier, any changes in the Hindu Succession Act has a major impact on the Hindu Marriage Act and with the amendment of 2005, it had a big part to play in the change. So earlier if a family had a daughter and son, the son would inherit the property as the daughter was to be married off to another family and would have the rights of maintenance in the same. Similarly, her sister in law also would be treated equally but with the changes, the daughter gets the share of her father’s property and husband’s property and her sister in law will get the share from the same family and also the right of share of the family to whom she is married off to. Before the Succession Act, widows and wife would get the right of share in the property if there is a partition between the sons or father and son and now there is another shareholder the daughter to that property who should have been included in the first place. (7)
These amendments changed the perception of the Hindu Law and the soft changes made in the interim to the law brings inequality before the law which is the core principles of the Constitution of India. And the recent judgement brought forward the necessary retroactive nature to the amendment which was so far only looked at retrospectively or prospectively.
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B. Abraham Thomas, Daughter has equal right in property, Hindustan Times (Aug. 12,2020,00.51 IST) https://www.hindustantimes.com/india-news/hindu-daughter-has-equal-right-in-property-says-sc/story-bn6Ho4gMpXD9O6kN30M4PI.html
C. Dr Justice AR . Lakshaman , Let us amend the law it is only fair to women, The Hindu (July.24, 2011,00.08 IST) https://www.thehindu.com/opinion/open-page/let-us-amend-the-law-it-is-only-fair-to-women/article2288188.ece#
D. The Hindu succession amendment Act-2005, Global database on violence against women, https://evaw-global-database.unwomen.org/fr/countries/asia/india/2005/the-hindu-succession-amendment-act-2005
E. Jasleen Kaur Dua, Coparcenary India past present future, Lawctopus.com (Feb.3.2015)
F. Khaitan & co, Supreme court clear the air on the coparcenary rights of daughter under the Hindu succession act 2005, Lexology , (Aug .18,2020)
G. Arihant Pawariya , Say no to UCC : what Hindus need to learn from SC”s verdict on Hindu succession act and progressive rhetoric around it , (Aug. 19,2020.6.30 PM) https://swarajyamag.com/ideas/say-no-to-ucc-what-hindus-need-to-learn-from-scs-verdict-on-hindu-succession-act-and-progressive-rhetoric-around-it