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EVOLUTION OF WOMAN’S COPARCENARY RIGHTS IN HINDU LAW

Updated: Feb 20, 2022

Written by: Shreeya Dharmatti


OVERVIEW


Women in India often face gender inequality and sexism at literally every phase of their lives and are still considered to be a marginalised gender.


Regardless of how much ‘women empowerment’ or ‘gender equality’ we hail, but in a truer sense, we all can still feel that the root cause which is prevalent since olden times and till date, that is regarding the considerably lower status of women, has not yet completely been eradicated from the society.


It’s a no brainer that due to growing literacy rates, social awareness and immense social media support for the actual empowerment of the women, the condition and status of women are possibly way better in today’s times.

But the fact that no matter which place, time and at whichever social strata you are on, a woman will always have to fight for her rights and prove herself to establish the same. Such things were out of the question for men throughout the timeline.


For instance, in a family of five, with a grandfather, father, mother, son and daughter, the main presumption is that the male descendent will eventually receive the whole property of the family. The female descendants were denied with the right of inheritance in ancestral property, since ancient times.

It can be a result of herculean differences in the concept of inheritance laws and succession rights in various customary and personal laws.


Mostly all the different personal laws were reluctant to favour the passing of the property to women, due to the very of fear engraved in their minds regarding bifurcation and eventually division of land making it inevitably losing it to others due to marrying off the women. Girls were considered as a liability due to several reasons. Some of them include liability to marry daughters, bear the expenses of their marriage, the concept of ‘stridhan’ , dowry to in-laws, seen as a mark of disgrace.


The widespread patriarchal system in India is still in pursuance to some extent. It has ultimately built a conceptual negative mindset with respect to the acquisition and transfers of inheritance rights, which are supposedly favouring men.


But with the changing era, the status of women have been uplifted and witness some radical revolutionary changes only to become much more forward-looking and stable than ever before. With increasing, literacy rates among females is directly proportional to increasing awareness about their rights.


This article emphasises on the women’s evolution under the succession of the coparcenary property under Hindu law. It goes through all the dynamics as to why the Hindu Succession Act, 1956 was enacted and enunciates its oppression on the fundamental right to equality guaranteed under Article 14 of the Indian Constitution and the prejudice shadowed upon women solely based on their gender.


PRE-INDEPENDENCE STATUS


The Hindu Law of Inheritance Act, 1929 was the earliest legislation which seeked to include the Hindu females under the ambit of the provision of inheritance. Three female heirs – son’s daughter, daughter’s daughter and sister were bestowed with the right of inheritance under the Act. Hindu Women’s Right to Property Act, 1937 was the second landmark legislation which facilitated some radical changes and also enshrined in its act that in the Mitakshara coparcenary, the widow of the one who is deceased would also be entitled to take similar interest as that of her deceased husband in the joint family property at the time of his death. She was entitled to claim partition as a limited owner. The widow though a member of a joint family and having right in coparcenary interest but however was not a coparcener.


POST INDEPENDENCE DEVELOPMENTS


With the onset of independence, the framers of our Constitution took note of the inequality which had been propagated against women depriving them of social and economic justice as envisaged in the Preamble to the Constitution of India, Fundamental Rights in Part III (Articles 14, 15, 16), Directive Principles of State Policy in Part IV (Articles 38, 39, 39A, 44) and Fundamental Duties in Part IVA [Article 51 A (e)]. In spite of these constitutional provisions, women were continued to be subjected to be deprived of their rights including property rights. [1]


Consequently, as a result, the Hindu Succession Act was enacted in 1956 and came into force on 17th June 1956.


THE HINDU SUCCESSION ACT, 1956


The Hindu Succession Act, 1956 (the ‘Act’) was the very first legislation that specifically dealt with the succession of ancestral properties according to Hindu law. The Hindu Law was codified with regards to how the ancestral property must be inherited only by the male lineal descendants of an ancestor. The Act reasoned this based on the logic that a married woman would now legally be a part of her husband’s family ergo denying her rights as a coparcener. Though the women had an ‘absolute ownership’ over their own property, they could not claim coparcenary rights over the ancestral property. This act supposedly deprived women of their fundamental right to equality as enshrined under Article 14 of the Indian Constitution. [2]


Seeking to put an end to the discrimination subjected upon women by the Mitakshara Coparcenary, the lawmakers in India realized the need to enact a gender-neutral law. An Act that would empower women with equal rights over the ancestral property. On 9th September 2005, the Hindu Succession (Amendment) Act, 2005 (the ‘Amendment Act’) was enacted which further clarified that women could be the legal joint-heir and acquire the coparcenary property just as and in cognizance with their male counterparts.


The reform with respect to Section 6 of the Hindu Succession Act, 1956, stood amended which further stated that “on and from the commencement” of the Amendment Act, 2005, the daughter of a coparcener shall have a right on the coparcenary property by birth along with other liabilities, exactly like the son’s inherent right of the same. This concept was coined as “unobstructed heritage”.


In the cases like the Phulavati Case and Danamma Case a lot of ambiguity was created amidst the masses. The extent to which the daughter would be entitled to coparcenary rights was questioned. This further carved a niche for an appeal in the apex court. The Supreme Court’s judgement in the case of Vineeta Sharma v Rakesh Sharma later on provided clarity on how a daughter of a joint Hindu family is also a legal heir and has the right to inherit the coparcenary property.


DEVELOPMENT OF LAW OVER THE YEARS


● After five decades of going back and forth over the topic of deciding whether a woman has the right to inherit the coparcenary property or not, the Hindu Succession (Amendment Act), 2005 was passed. Coparcener is a term used to describe any person who has the right to inherit the ancestral property by birth.


Changes done by the Hindu Succession (Amendment) Act, 2005-[3]


o It amended the provision which took away the right of daughters to inherit coparcenary property.

o In case a Hindu dies then the coparcenary property shall be allotted to the daughter as it is allotted to the sons.

o It established that the daughter of a coparcener shall be a coparcener by birth just as is the son.

o It cancelled the succession as per the survivorship rule and introduced Testamentary Succession and Intestate Succession.

o In a Hindu Undivided Family, a daughter is entitled to demand a partition as is the son.

o A daughter on her own will can dispose-off her share of the coparcenary property.

o 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.


● The coparcener has the right to seek partition in the coparcenary property. This made it difficult to apply the law retrospectively. Such an application would lead to the reopening of many settlements done in the past. To avoid this problem, the court fixed 20th December 2004 as the date limiting the application of the amended law retrospectively. However, the court also stated that if a daughter still seeks partition to get a share culled out, it cannot be denied on the basis of an oral family settlement which is supported by public documents.


● Hindu Succession (Amendment) Act, 2005 proved to be more gender-neutral.



AMENDMENTS BROUGHT BY THE LAW COMMISSION OF INDIA


Law Commission of India State amendments brought sweeping reforms in their respective places. But, Hindu women in other states of India were still subjected to prejudice prevalent against them acquiring the share of ancestral property as mentioned in Hindu Succession Act of 1956. An initiative was taken up the Law Commission of India with regards to this widespread inequality wherein in their 174th Report on “Property Rights of Women: Proposed Reforms under Hindu Law” under the Chairmanship of Justice B. P. Jeevan Reddy, they made some very significant and revolutionary recommendations emphasising that discrimination against women is writ with regards to property rights, social justice and therefore demanded the equal treatment of women in the socio-economic as well as a political structure.


CONCLUSION


The position of Hindu woman in accordance with her property right has undergone a radical change from ancient times to the enactment of Hindu Succession (Amendment) Act, 2005. The journey from exclusion to recognition of Hindu daughters in the Mitakshara coparcenary has been astounding as ultimately all the women are equally granted the socio-economic justice as enshrined in the Constitution of India. However, regardless of all the progress introduced by the Hindu Succession (Amendment) Act, 2005, women of certain social strata are still turned down their lawful rights in the ever-existing patriarchal society. Nothing perpetuates social injustice like this than the mere silence of the marginalised Hindu women. They must be enlightened via several informative legal literacy campaigns and social awareness drives about their property rights, so that they can claim what is rightfully theirs. Consistent efforts on the part of the government, NGOs, the general public and other empowered women should be made to bring about a revolutionary change in the patriarchal society which seems to be omnipresent throughout the ages.


[1] https://lawtimesjournal.in/succession-rights-of-women/ [2] Dr. Paras Diwan, modern Hindu law: succession, 405-59, 23rd edition 2016, Allahabad Law Agency, New Delhi. [3] Riju Mehta, inheritance rights of women: how to protect them and how succession laws vary, Economic Times Bureau,29 July 2019.

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