Women have always played an imperative role in the society and have lent their hand to the world whenever required. During the course of revolutions and wars, women played an important role, be it the contribution of women in Bolshevik revolution where women initiated a strike in Soviet Union on 22nd February 1917 or the unit called Rani of Jhansi Regiment of Azad Hind Fauj which comprised of women along with the contribution of women in swadeshi movement. It can be said that the situation and problems of women in this contemporary world at some instances is the same as that of the primitive times but with education emanates wisdom, modern period leads to the revival of women’s rights in respect of education, political rights as well as social and economic rights, our judicial system is making constant changes in the laws to uplift and improve the status of women in the society. In this article we will be discussing the Hindu Succession Act, which has undergone a major change in it and how this amendment has proved to be encouraging for women. 

ANALYSIS OF THE RECENT JUDGMENT: VINEETA SHARMA V. RAKESH SHARMA

After the amendment, there was a chaos and misperception of the interpretation, with respect to whether father must have been alive on the date of this enactment in 2005 etc. Now, to resolve this confusion the Supreme Court in the very recent and a widely celebrated case of Vineeta Sharma v. Rakesh Sharma, dated August 11, 2020; a three-bench judge consisting of Justice M R Shah, Justice Abdul Nazeer and Justice Arun Mishra, rectified the glitch in jurisprudential interpretation of the 2005 amendment of the Hindu Succession Act, 1956. The judgement reconciles the issue whether the coparcenary right of daughters comes into effect only if the father through whom they claim that right was alive on the day the amendment came into force or not? The apex court has now firmly ruled that

  • The daughters’ right drifts from their birth and not by any other factor such as the existence of their fathers. 
  • In simple words it discards the prevalent misconception about the act which was that “only daughters of coparceners who were alive on that day could get an equal share in property”, but court have rightly stated that the right of women in ancestral property is accrued by birth, there is no difference between a male offspring and a female one, the rights on property are equal from birth as recognised by Mitakshara School of Hindu law. 
  • The provisions confined in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
  • The judgment in Prakash v. Phulavati was overruled by the Hon’ble Court.

HISTORY & ORIGIN OF COPARCENARY RIGHTS

The coparcenary rights found its inspiration from Mitakshara School of Law, a Hindu joint family system consists a lineal descendancy from a common ancestor i.e. the oldest male of the family who is by virtue head of the family and after him, his property is to be passed to his descendants. The basis of Hindu joint family was a common male ancestor and the properties of the family were held as a coparcenary right of the male member by virtue of their birth. No female was the coparcener even though she was a member of the Joint Hindu family. 

Then came the Constitution of India on 26th January 1950. Articles 14, 15(2) & (3) and 16 of the Constitution removed discrimination against women and made equal treatment of them as a Fundamental Right. To achieve this objective, the Hindu Succession Act, 1956 came into existence. 

HINDU SUCCESSION ACT, 1956

Hindu Succession Act, 1956, talks about succession and inheritance of the property and rights vested in the members of the family to which that property belongs to, this act is applicable on Hindus, Buddhists, Sikhs and Jains. This act states that there are two types of property one is ancestral property and second is self-acquired property.

There exists several family members in a joint family, suppose the head of the family is the owner of an ancestral property, in a joint family not every family member has a right over that ancestral property but only the coparceners can claim that specific property, the coparceners have equal share of right over the ancestral property.

Before the amendment of 2005 in the Hindu Succession Act, only the lineal descendants of the same ancestor would be coparceners of the ancestral property. Which is the next three generations of the Holder would be coparceners to the property. For example, if a father is the owner of an ancestral property then he, his son, his grandson and his great grandson would enjoy the rights under coparcenary. 

Hence, it can be said that the Hindu Succession Act, 1956, preferred the males of the Hindu family and included them in the list of legal heirs of the property and ignored the rights of the daughters and failed to examine the need of including daughters in the coparcenary property of the father. Daughter, wife or widows cannot claim for the coparcenary rights.

The above-mentioned situation was a major concern of the Hindu Succession Act, 1956, it is known as the survivorship rule, given in Section 6 of the Hindu Succession Act, criticism of this survivorship rule was that only males can be co-parceners to a property and not females. 

HINDU SUCCESSION ACT, 2005

The Law Commission submitted its 174th report in May 2000. The commission called for gender reforms to ensure equality. The commission also took note of the steps taken by Kerala, Andhra Pradesh, Tamil Nadu & Karnataka to bring about gender neutrality. It recommended that daughters also must be included in being the coparceners by birth and she should be entitled to her portion. An amendment was made in the Hindu Succession Act in the year 2005. The amendment made in 2005 cancelled out the survivorship rule and replaced it with testamentary succession and intestate succession.

Testamentary succession pointed towards making a testament or will of your property under which a person can transfer or divide his/her self -acquired property amongst their family members as per their wish, the transfer can be made to the widow, husband, son, daughter or any random person.

Intestate succession comes into force when a person dies without having a will or in the cases pertaining to the division of the ancestral properties, the 2005 amendment introduced four classes; class I consists of widow, husband, son and daughter, the amendment Act of 2005 says that if a person dies leaving behind an ancestral property then the first right of that property would be given to widow, daughter and son, all three are given equally rights and weightage. According to the 2005 amendment, daughters were also treated as co-parceners, and it was said that the daughters acquire their right of coparcenary from their birth. Secondly, daughters will now after this amendment have equal liability in the property as the sons.

In the case of Ganduri Koteshwaramma v. Chakiri Yanadi, the question arose before the Honourable Supreme Court that whether the preliminary decree passed by the trial Court on March 19, 1999 and amended on September 2003 deprives the appellants of the benefits of 2005 Amendment Act although final decree for partition has not yet been passed? The court, after citing Section 6 of the Amendment Act held that if a final decree has not been passed, until the commencement of the Amendment Act then the preliminary decree has to be amended considering the share of the daughters.

THE JOURNEY OF THE AFTERMATH OF THE AMENDMENT ACT, 2005

The amendment made in the Hindu Succession Act, 1986 was enforced on 9th September 2005. The problem behind this amendment was with respect to the said date of the enactment of this act, it was questioned that whether it is required that the father of the said daughter, who acquires her rights given to her under this amendment act, is expected to be alive by the day of the enactment of this act or not?

In simple words it was asked that if the father dies in the year 2002 and this act came into force in the year 2005, then in this situation will this amendment be applicable to the daughter or not?

In Prema v. Nanje Gowda, insertion of section 6A by the amendment made by the State of Karnataka in the Hindu Succession Act, 1956, was considered. Equal rights were given to the daughter in coparcenary property in a suit for partition. A preliminary decree was passed. Amendment in the Act was made during the final decree proceedings. It was held that the discrimination practiced against the unmarried daughter was removed. Unmarried daughters had equal rights in the coparcenary property. The amendment’s effect was that the unmarried daughter could claim an equal share in the property in terms of section 6A inserted in Karnataka.

In the case Prakash and Others v. Phulavati, the Supreme Court stated that to claim rights under the Amendment Act of 2005, the father must be alive on the date of the enactment of this act.

Later in Danamma v. Amar, the Supreme Court reversed the judgement propounded in the previous case of 2016, the Supreme Court held that the daughter can claim over the property of the father irrespective of the death date of the father.  

CONCLUSION

With speeding time Indian society is also undergoing several swift modifications in its structural, cultural and judicial forms. As we all are well-aware of the fact that change is an essential element for an enhanced growth of anything we may take into consideration. The judicial system took cognizance of the present conditions of the women of the Indian society and have made several track-changing judgments in the past few years, which have completely changed people’s notion and have shifted the orthodox Indian society to a society which respects women, understand the needs of the women, consider them equal to men, and accepts their choices, freedom and rights in a similar way as that of men. After the above discussions, it is clear that this change of amendment in the Act as well as several judicial pronouncements have upheld the constitutional provisions and kept women at an equal pedestal. All these changes were required not just to uplift women but to remind the society that any benefit which is enjoyed by men shall be enjoyed by women equally. 

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The Author, Adv. Ms. Himanjali Gautam is an Advocate at the Supreme Court of India, Founding-Partner at Chambers of Himanjali Gautam, Ex President– Law Centre 2, Faculty of Law DU, Columnist, Public Speaker and a Media Personality.

You may reach out to her at himanjali.gautam@gmail.com 

DISCLAIMER: The author is solely responsible for the views expressed in this article. The author carries the responsibility for citing and/or licensing of images utilized within the text.