The history of Hindu Law reforms spans a period of 15 years from 1941 to 1956.The Hindu Law Committee was set up in 1941 to look into the anomalies of the Hindu Women’s Right to Property Act, 1937. In 1944, a second Hindu Law Committee was set up again. After soliciting opinions of the jurist and public, the Committee submitted its report and its recommendations were debated in the Parliament between 1948 and 1951 and again from1951-1954.Finally a diluted form of four major acts could be passed in 1955-56.One of them was the Hindu Succession Act, 1956.
In India, Shastric and Customary laws governs the Hindus of India. But differs due to local customs that dominate from region to region resulting in multiplicity of laws with diversified
nature being followed in different schools and sub schools of Hindu law. The two distinct school and dominant school, validated under the Anglo –Hindu Law were Mitakshara of Vijnaneshwar and Dayabhaga of Jimutavahana. Consequently, property laws differed among Hindus, favouring preferential rights of ownership only to males discriminating females. Under the Mitakshara Law, the property of a Hindu male devolved through survivorship jointly upon four generations of male heirs. The ownership was by birth and not by succession. Upon his birth the male member acquired the right to property. The Dayabhaga, the accepted authority in Bengal school, did not adopt the notion of joint ownership or coparcenary.
Since women were not part of the coparcenary, they did not have even the notional right of joint ownership; hence they could not demand partition. Wives were not the only victims of such gender-based discrimination; daughters too faced similar disadvantages when it came to proprietary interests. In the entire history of Hindu law, women’s right to hold and dispose property, for the first time could get a statutory recognition by virtue of the 1937 Act. Even if women were allowed ownership of property, it was only a life interest, which reverted back to the source on their deaths. Two types of property which she could hold were — ‘Stridhan’ and ‘Women’s Estate’. However the quantum of property held by her was always very meagre. She hardly had a voice to claim nor was she aware of her rights.
‘Stridhan’was held to be the absolute property of Hindu women. Over which, she had full powers to alienate, sell, gift, mortgage, lease or exchange during her maidenhood and widowhood, but certain restrictions were imposed on her power, if she was married. So women didn’t enjoy complete control over it, they needed their husband’s consent to dispose of a certain part of their stridhan.
Hindu women were given only a limited ownership that constituted her limited estate known as ‘Women’s estate’ or ‘Widow’s estate’. By virtue of the 1937 Act, the widow had a limited power of disposal i.e. she could neither alienate the corpus except for legal necessity. On her death, this ‘women’s estate ‘would revert back to the heirs of the last full owner known as reversioners. In 1956, gender inequalities were addressed and Sections 14 of Hindu Succession Act abolished this concept of ‘Women’s estate’. But, the Hindu Succession Act,1956 retained the coparcenary system which resulted in the denial of rights of women in ancestral property .Women were not considered as coparceners There was denial of equal rights to daughters of Mitakshara families. Many saw this as curtailing women’s property rights.
The Hindu Succession (Amendment) Act, 2005
On September 9, 2005, after a long gap of forty nine years, the Hindu Succession Act, 1956, was amended. According to Hindu Succession (Amendment) Act, 2005, every daughter, whether married or unmarried, is considered a member of her father’s Hindu Undivided Family (HUF) and can even be appointed as ‘Karta’ of his HUF property. The amendment of 2005 now grants daughters the same rights, duties, liabilities and disabilities that were limited to sons by virtue of their birth. Now, women of the family can also be a coparcener.
The Amendment Act, 2005 deleted Section 4(2) of the Hindu Succession Act 1956, and paved the way for women’s inheritance in agricultural lands equally to that of males. The amendment has done away with the discriminatory state-level tenurial laws and benefited many women who are dependent on agriculture for their sustenance. Thus, the Hindu Succession Amendment Act, 2005 has addressed a very pertinent matter relating to rights of daughters in the Mitakashara coparcenary and elevated the position of a daughter by amending Section 6 of the Hindu Succession Act 1956. The amended Section 6 deals with devolution of interest in coparcenary property.
From the date of commencement of the Hindu Succession (Amendment) Act, 2005, Section 6(1) provides that the daughter of a coparcener in a joint family governed by the Mitakshara law shall, on and by birth become a coparcener in her own right in the same manner as the son. She shall have the same rights and be subjected to the same disabilities in the coparcenary property as that of a son and any reference to a Hindu Mitakshara Coparcenary shall be deemed to include a reference to a daughter of a coparcener. But, by the amendment, a daughter could avail the benefits granted only if her father passed away after 9th September, 2005 and the daughter could be eligible to be a co-sharer only if the father and the daughter were alive on 9th September, 2005.
Simultaneously, Section 23 of the Act disentitles the female heir to ask for partition in respect of dwelling house wholly occupied by a Joint Family until male heirs choose to divide their respective shares therein was omitted by this Amending Act.
The 174th Law Commission Report had also recommended this reform in Hindu succession law. Removing the gender bias in the legal system, the amendment in the Act made sure that ‘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; and is allotted the same share as is allotted to a son’.
How did the case come up?
While the 2005 law granted equal rights to women, questions were raised in multiple cases on whether the law applied retrospectively, and if the rights of women depended on the living status of the father through whom they would inherit. Different benches of the Supreme Court had taken conflicting views on the issue. Different High Courts had also followed different views of the top court as binding precedents.
In Prakash v Phulwati (2015), in a division Bench headed by Justice A K Goel held that the benefit of the 2005 amendment could be granted only to “living daughters of living coparceners” as on 9th September, 2005 (the date when the amendment came into force).
In February 2018, contrary to the 2015 ruling, a division Bench headed by Justice A K Sikri held that the share of a father who died in 2001 will also pass to his daughters as coparceners during the partition of the property as per the 2005 law.
Then in April that year, yet another division bench, headed by Justice R K Agrawal, reiterated the position taken in 2015.
A step forward
These conflicting views by different Benches of equal strength led to a reference to a three-judge Bench in the current case. The ruling now overrules the verdicts from 2015 and April 2018. It settles the law and expands on the intention of the 2005 legislation “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”.
Taking a step towards gender equality on August 11, 2020, the Supreme Court gave a landmark verdict ‘that daughters will have right over parental property even if the coparcener had died prior to the date when Hindu Succession (Amendment) Act, 2005 came into force.’
The author is an Associate Professor & Dean of the National University of Study & Research in Law. Views expressed are her own
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