This article essentially deals with the rights of women as coparceners. Before 2005, the system of coparceners consisted exclusively of male members. The scenario changed largely after the implementation of the Hindu Succession (Amendment) Act, 2005. It further deals with the landmark cases and the current scenarios of the coparcenary rights concerning women.
Introduction
Much like those of women of any other country, the property rights of Indian women have evolved out of a continuing struggle between the status quo and the progressive forces. And pretty much like the property rights of women elsewhere, property rights of Indian women too are unequal and unfair: while they have come a long way ahead in the last century, Indian women continue to get fewer rights in property than the men, both in terms of quality and quantity
The Hindu Succession Act, 1956 (the ‘Act’) was the first of its kind that dealt with the succession of ancestral properties according to Hindu law. It codified the Hindu law on how the ancestral property must be acquired only by the male lineal descendants of an ancestor in a joint Hindu family. The Act was of the ideology that, since a woman will one day get married and be a part of some other family, she must not be legally considered as a coparcener. Though the women had ‘absolute ownership over their property, they could not claim coparcenary rights over ancestral property. This made the Act to be outrightly discriminatory towards women based on their gender and oppressed their fundamental right to equality enshrined under Article 14 of the Indian Constitution.
Seeking to put an end to the discrimination subjected upon women by the Mitakshara Coparcenary, lawmakers in India realized the need to enact a gender-neutral law. An Act that would not oppress women and give them equal rights over ancestral property. Thus, the amendment of the Hindu Succession Act, 1956, took place. On 9th September 2005, the Hindu Succession (Amendment) Act, 2005 (the ‘Amendment Act’) came into existence. This Amendment Act enabled women to be the legal joint heir and acquire the coparceny property just as their male counterparts. It put an end to gender discrimination and protected the fundamental right to equality of women from being violated in this matter.
History And Origin
The Constitution of India grants equality to all persons irrespective of religion, race, caste, sex, or place of birth. The Constitution provides for gender equality as part of Fundamental Rights which are enforceable by law. The State grants not only grants equality to women but also empowers the state to take positive discrimination in favor of women.[1] However, even after more than sixty-four years of enforcement of the Constitution gender equality has not been achieved in its true sense.
Discrimination against women can be seen not just socially but also in the laws made by the legislature itself. One such example is in the relation to women’s rights to property. Post-independence, the laws relating to intestate succession for Hindus are governed by the Hindu Succession Act, 1956. This Act was enacted to lay down a uniform system of inheritance and also to ensure equality between sons and daughters. However, with respect to creating gender equality, this act failed miserably. For instance, this Act provided for coparcenary rights only in favor of male members.
Section 6 of the Hindu Succession Act, 1956 states that- “When a Hindu male dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act”.[2] Since a woman could not be a coparcener, she was not entitled to a share in the ancestral property by birth.[3]
However, there is an exception to this rule which also serves as another gender bias. The exception is that the interest of the deceased in the Mitakshara coparcenary shall devolve by intestate succession if the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative specified in that class, who claims through such female relative.[4] To understand how this provision operates as gender bias, it is necessary to look at Section 8 of the Hindu Succession Act, 1956 which deals with the general rules of intestate succession.
As per Section 8, the property of a male Hindu dying intestate shall devolve firstly, upon the heirs, being the relatives specified in Class I of the Schedule. However, there are only four primary heirs in the Schedule to Class I, namely, mother, widow, son, and daughter.[5] The principle of representation goes up to two degrees in the male line of descent, but in the female line of descent, it goes only up to one degree. “Accordingly, the son’s son’s son and son’s son’s daughter gets a share but a daughter’s daughter’s son and daughter’s daughter’s daughter do not get anything. A further infirmity is that widows of a pre-deceased son and grandson are Class I heirs, but the husbands of a deceased daughter or granddaughter are not heirs”.[6]
It is evident from the analysis of the above sections that the Hindu Succession Act, 1956 by retention of the Mitakshara coparcenary with only males as coparceners violates the Constitutional provisions guaranteeing equality to women. The exclusion of women from coparcenary just based on sex is unfair and unjust. To create an equal society, women should be given equal property rights so that their basic economic needs can be taken care of which will in the long run help in creating a balanced society.
Keeping all these factors into consideration, the Hindu (Amendment) Succession Act, 2005 was enacted. One of the primary objectives of this Act as stated in the Parliamentary Standing Committee Report was to “remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have”.
Explanation with Statues
The Hindu Succession Act (Amendment) 2005, seeks to enlarge the rights of a woman who is a daughter, married and unmarried both by giving them equal coparcenary rights as that of a son in the joint family property. It also seeks to bring the female line of descent at par with the male level of descent. Development of laws over the years are-
“In a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
- by birth become a coparcener in her own right in the same manner as the son;
- have the same rights in the coparcenary property as she would have had if she had been a son;
- be subject to the same liabilities in respect of the coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener”.
Also, the Act abolished the doctrine of survivorship in the case of male coparceners who died as members of an undivided Mitakshara conspiracy.
The Amendment thus makes a significant change by making daughters as coparceners. The traditional patriarchal nature of the coparceners has changed radically. This change has fundamentally altered the nature of Mitakshara. The amendments in Section 6 seek to do away with the discrimination against the daughter, as her rights and liabilities are the same as that of a son. This also implies that a daughter is now capable of acquiring an interest in the coparcenary property, demand a partition of the same, and dispose of it through a testamentary disposition. The new changes allow daughters to start a joint family themselves. In short, all the prerogatives and uniqueness of a son’s position in the family are available to a daughter as well.
The marital status of a daughter is immaterial as the Act and does not impose any reference or limitation concerning her marital status. The Amendment simply states that a daughter of a coparcener is included as a coparcener herself.
Changes made by the Hindu Succession (Amendment) Act, 2005-
- It amended the provision which took away the right of daughters to inherit coparcenary property.
- In case a Hindu dies, then the coparcenary property shall be allotted to the daughter as it is allotted to the sons.
- It established that the daughter of a coparcener shall be a coparcener by birth just as is the son.
- It canceled the succession as per the survivorship rule and introduced Testamentary Succession and Intestate Succession.
- In a Hindu Undivided Family, a daughter is entitled to demand a partition as is the son.
- A daughter of her own will can dispose-off her share of the coparcenary property.
- In case a partition happens immediately before a female coparcener dies, then the children of such coparcener shall be entitled to inherit the coparcenary property.
Landmark Cases
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Prakash & Ors. v. Phulavati & Ors.[7]
In this case, the Hon’ble Supreme Court of India stated that “the rights of coparceners under the Amendment Act, 2005 apply to the living daughters of living coparceners as on 9th September 2005, irrespective of the birth date of daughters.” It means that if the father is a coparcener who passed away before 9th September 2005, the living daughter of the coparcener would have no right to inherit the coparcener property in such a situation.
This case threw light upon the interpretation of the legislation regarding the Amendment Act, 2005. It stated that the said Act shall not be applicable if the coparcener had died before the commencement of the Act. It means that in such cases the survivorship rule shall prevail and the daughter will not have any right over the coparcenary property.
Danamma v. Amar Singh[8]
In this case, the Hon’ble Supreme Court of India stated that if the father is a coparcener who passed away before 9th September 2005 and a prior suit has been pending for partition by a male-coparcener, then the female coparceners are entitled to a share.
The court observed that the provisions of Section 6 of the Amendment Act, are operational in a retrospective manner and they confer absolute rights upon the daughter to be a coparcener from birth. This decision was in contrast to the judgment given in the Phulavati case. Thus, both the aforementioned judgments conflicted with each other and gave rise to a divergence of questions regarding the coparcenary rights of a daughter in inheriting the coparcenary property of her deceased father. This led to the grant of appeal in the Hon’ble Supreme Court of India.
Vineeta Sharma v. Rakesh Sharma & Ors[9]
A 122-page judgment was given by the Hon’ble Supreme Court of India for this particular case. The court stated that women have been subjected to historical injustice when it comes to being a coparcener and they must be given equal rights irrespective of the prospective or retrospective application of the Amended Act, 2005.
Section 6(1)(a) of the Amendment Act, 2005 explains the birthright of a coparcener i.e ‘unobstructed heritage’ under Mitakshara coparcenary to inherit the property. The court opined that the coparcener has a right over the ancestral property by birth and hence it is not essential for the father(coparcener) to be alive as on the date of the amendment. It is so because the coparcenary rights conferred by the daughter are by her birth, not by obstructed heritage. Thus, the concept that the father (coparcener) and daughter must be alive on the date when the Amendment Act,2005 came into force as laid down in the Phulavati’s case was overruled.
The Hon’ble Supreme Court of India held that Section 6 of the Amendment Act, 2005 shall be applied retroactively. Explaining the concept of retroactive application of the Amendment Act, 2005, the court held that the said Act enables women to have the benefit of succession based on their birth.
Through this case, it was ruled that daughters have an equal right in the coparcenary property same as the son, even if the father died before the enactment of the Hindu Succession (Amendment) Act, 2005. It also held that the rights under the said amendment apply to living daughters of living coparceners as of 9th September 2005, irrespective of the date of birth of the daughter.
Current Scenario
In a recent case, it was argued that the 2005 amendment recognizing women as coparceners can only be prospective – that unless the father was alive on the date of the enforcement of the amendment Act, there could be no recognition of the daughter’s right; that the amendment was not intended to unsettle matters; that if a preliminary decree was passed, all that was left to be done was to demarcate shares by metes and bounds and hence it cannot be altered. The crux of these arguments was that the amendment operated prospectively and not retrospectively.
However, the Supreme Court has now held that the amendment has a retroactive effect. It explained:
“The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute does not operate retrospectively. It operates in the future. However, its operation is based upon the character or status that arose earlier.”
Until the 2005 amendment, only the male members of a Hindu family had coparcenary rights. And coparcenary property is a right that comes with birth. Now, female members have the same right. It is a right recognized from the time the daughter is born just as if she were a son. This status, therefore, operates from the time she is born. “Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage.”
Conclusion
The property rights of Hindu women have been highly fragmented based on several factors apart from those like religion and the geographical region which have been already mentioned. Property rights of Hindu women also vary depending on the status of the woman in the family and her marital status: whether the woman is a daughter, married or unmarried or deserted, wife or widow or mother. It also depends on the kind of property one is looking at: whether the property is hereditary/ ancestral or self-acquired, land or dwelling house, or matrimonial property. Before the Hindu Succession Act, 1956 ‘Shastric’ (Hindu Canonical) and customary laws that varied from region to region governed the Hindus.
The Amendment of 2005 marked a watershed in the trajectory of the laws inheritance for women in India. It was a step in the direction of practical recognition of equality between the sexes and elevated the otherwise subservient economic position of women. It also ensured that women could exercise their rights to enjoyment and disposal of property, untrammeled by artificial limitations placed on their ownership by society.
FAQs
Who is a coparcener?
Coparcener is a term used to describe any person who has the right to inherit ancestral property by birth.
What is the right of coparcener?
Every member of a coparcenary has the right to joint possession and to enjoy ancestral property. One can exercise this right to possession if he is ostracized by the other members of the family.
Is a married daughter a legal heir?
A married daughter has been included as heir from 2005 as per the amendment in the Indian succession act married daughters are the are have equal rights in the family property as that of the son also legal heir certificate will contain the name of a married daughter also
Do daughters get equal property rights?
The 2005 amendment to the Hindu Succession Act, gave equal rights to daughters in the ancestral property and also in the coparcenary property of her parents.
Can a female become a coparcener in Mitakshara coparcenary?
No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, the joint family property is devolved by the survivorship within the coparcenary. This means that with every birth of a male in the family, the share of every male will either be diminished or enlarged.