EXPLAINED: DAUGHTER’S EQUAL RIGHT ON ANCESTRAL PROPERTY ACCORDING TO HINDU PERSONAL LAW

Introduction

For years, woman have suffered injustice when it comes to inheriting properties. Ancient customs in India did not empower woman with property rights. Back in the day, Hindu woman were only granted the right to own the property for life, after which the ownership would revert back to the absolute owner. They could neither transfer or alienate the property. Various Hindu law committees were set up in order to identify the anomalies of the rights to property of Hindu women.

In India, personal laws govern matters relating to succession of ancestral properties. Succession among Hindu families is dealt with Hindu Succession Act, 1956. This Act provided limited property rights to Hindu women and provisions such as section 6 and section 23 of the Act were predominantly patrilineal. However, in 2005, significant changes were made to the Act.

In August 2020, the Supreme Court in the case of Vineeta Sharva v. Rakesh Sharma & Ors ruled that the daughters of Hindu father will have the same rights over ancestral property as a son, which finally granted equal rights to women.

Property rights of women under Hindu Law 

There are two main school of thought for the Hindus, Mitakshara and Dayabhaga. Since Mitakshara was accepted and recognised by majority of Indians, it was codified as the Hindu Succession Act, 1956, which regulated the estate and the inheritance of Hindus. Under this rule, only patrilineage was recognised as legal heir or coparcenary that provided the right to inherit the property of their father. Thus, in older times, most Indian woman were financially dependent on their husbands or sons.

The provision prohibiting the daughter from coparcenary ownership has not only contributed to the injustice women face on the basis of gender; it has led to violation of right to equality under Article 14, guaranteed by the Constitution of India. Although, southern states like Karnataka, Andhra Pradesh, Tamil Nadu and Maharashtra had extend equal rights to the daughters belonging from Mitakshara coparcenary property during the 90s through State Amendments in the Act.

In December 2004. the amendment Bill was presented to the Rajya Sabha to eradicate inequalities of the Act. The Hindu Succession (Amendment) Act, 2005 recognised woman as coparcenary and provided equal rights and liabilities to daughters and sons under section 6. The 2005 act further omitted section 23, enabling woman to seek partition even when it is occupied by male heirs. Section 24 was also omitted which barred widow from claiming husband’s inheritance if she remarried. This amendment came into force on 9 September 2005, which was prospective in nature.

As a result of the amendment, daughters appeared before courts to establish their claim under section 6 of the 2005 Act. However, the various courts ruled that inheritance can be claimed only by living daughters of living coparceners. This rule was also upheld by the Supreme Court in the case of Prakash & Ors v. Phulavati & Ors in 2015, where the Court refused to recognise the daughter as a coparcener due to the fact that her father had passed away before the commencement of 2005 Act. On the contrary, in Danamma @ Suman Surpur v. Amar (2018), although the father had passed away in 2001, the Supreme Court ruled in favour of daughters by granting them coparcenary rights.

These conflicting judgements of Supreme Court gave rise to a Special Leave Petition in 2018. This issue was referred to a three-judge bench in the case of Vineeta Sharva v. Rakesh Sharma & Ors (2020), where the Court upheld the coparcenary rights of daughters irrespective of the fact that the father is alive or dead and if the daughter was born before or after the 2005 Act. The Court also held that oral partition of property is unacceptable, with certain exceptions plea of oral partition maybe heard. This judgment gave a retrospective effect to section 6 of the 2005 Act, provided the partition of the property is made after 20 December 2004, to avoid reopening of old cases and create a backlog in the court. The changes in Section 6 will be applied in any pending proceedings or appeal, which were halted during the proceedings of this case are to be decided as soon as possible. Although the judgment does not provide any relief to daughter’s who were denied the right to coparcenary before the 2005 Act.

Conclusion

Coparcenary right is essential in matters of succession. Coparcenary is considered to be a birth right, which cannot be invalidate because of a person’s gender or marital status. Equality in property rights provide great opportunities to women to thrive in the society as the property can be used to earn income, secure mortgage, etc. It also gives them a sense of freedom, independence and dignity. Although, it is important to note that rights and liabilities go hand in hand, therefore, daughters will be also liable for the debts acquired by her father.

Finally, in the year 2020, women have received equal rights as men in matters of inheritance in Hindu families in conformity to Article 14 of the Constitution of India. However, even today, some women are forced or pressured forfeit their right to inheritance in the name of custom.

The landmark judgement should be considered a stepping stone in providing equality to women in this male-dominated society. It would. be interesting to see how Indian families with tradition to pass on family inheritance only to male heirs will react to this judgement.

The legislators are suggested to replace gender describing words like son and daughter and replace it with gender-neutral word, which is child/children. This change would also be beneficial to people who fall under the LGBTQA community, as some people do not prefer to recognise themselves as either male or female. With the changes in society, laws need to be changed. The Supreme Court is recognising the needs of present situation whereas the legislators are not trying to make changes to legislations according to the needs of this society.

Women have struggled in the patriarchal society for a long time to attain equal rights all over the world. This male-dominated world has been biased against woman in all matters such as succession, employment, etc. It is time, women and men deserve to be treated equal. There must be a behavioural change in minds of Indians to relinquish gender discrimination.