EQUAL INHERITANCE RIGHTS FOR WOMEN IN HINDU UNDIVIDED FAMILY
Author: Manju Chauhan
ABSTRACT
A Joint Hindu Family is fundamental aspect of Hindu Law which concept of joint family is where there common ancestor and his male descendent along with their family member lives together from a long period of time. This article discusses the provisions of Joint Hindu Family, role of Karta, succession and coparceners of his descendants. Through this we also threw some light on the rights of women in succession and coparcener in the property of her father. Later concludes this article by proving that women have equal rights in the property of her father as similarly as the son has right in the father’s property.
INTRODUCTION
Under section 2(4) of Kerala Joint Hindu Family System (Abolition) Act, 1975 the expression ‘Joint Hindu Family’ is defined as an undivided Hindu family governed by the mitakshara law.
According to Oxford dictionary Joint Hindu means “were an extended family consisting of two or more generations and their spouses living together as a single household”.[1]
This concept of joint hindu family is followed under both Mitakshara and Dayabhaga but there is distinction in the regions of their followings. Where most of the parts of India follow mitakshara on the other hand West Bengal and Assam follow dayabhaga.
JOINT HINDU FAMILY
According to Mulla – “A Joint Hindu Family consists of all the persons lineally descended from a common ancestor and include their wives and unmarried daughters. A daughter ceases to be a member of her father’s family on marriage and becomes a member of her husband’s family”.
Joint Hindu Family can be described as a fundamental concept of Hindu Family Law governed under the Hindu Succession Act, 1956. It is important to understand that a joint hindu family is not a juristic person and does not have a separate legal entity like a company. It is merely a unit which is represented by the ‘Karta’ of the family or the head of the family in all matters as held in case of Chhotey lal and ors v. Jhandey lal[2] by the division bench.
A married daughter who is deserted or widowed once returned to her father’s house permanently can be a part of joint hindu family but the child who was born out of marriage does not belong as a legal heir of joint hindu family, he remains part of her husband’s family. The adopted children can also become a part of the adoptive father’s joint family. These members of the joint hindu family are bound by the sapinda relationship.
There are mainly two types of schools, which govern the Hindu Undivided Family. They are:-
Mitakshara – It is a commentary on the code of yajnavalkya and written by vijaneshwar. This applies to the whole of India except Bengal and Assam. It is the inheritance which is based on the principle of propinquity i.e. nearness in blood relationship or we can say agnates are preferred over cognates. This law existed until the amendments made in The Hindu Succession (Amendment) Act, 2005.
Dayabhaga – It is a digest of all codes and written by Jimutavahana. It is mainly followed in Bengal and Assam. In this there is no preference for agnates over cognates. The son, grandson, great grandson has no rights over the property during the life their father and father can dispose of property at his pleasure. Only after his death, the property devolves by succession or inheritance. In case, the coparcener dies then his widow has the right to inherit his share in the property.
KARTA
Karta means manager of the joint hindu family and who takes all important decisions of the family is known as Karta. According to Article 236 of the Mulla Hindu Law defines the term ‘Karta’ as “Manager- Property belonging to a joint family is ordinarily managed by the father or other senior most members for the time being of the family: The manager of the joint Hindu Family is called Karta.”[3]
Who can be Karta?
Generally the senior most person of the family is known as Karta. Only the member of the family can become karat of the joint hindu family and this will continue as long as he lives and pass to another senior member of the family in case of his death.
Position of Karat: – Karat is sui generis (of its own kind). The relationship of principal-agent or like partners does not exist here. He stands in a fiduciary relationship with other members but he is not a trustee. Nobody can question him on what and where he spent or any other charges of useless misappropriation.
Whether females can become Karta?
Previously before the changes in law only the son had the right to karat of the hindu undivided family under the Mitakshara and no such right was given to the female members of the family.
Change in law– In 2000 the 174th report of 15th Law Commission recommended many amendments to correct discrimination against women related their rights over the property of their father. This leads to the foundation of Hindu succession (Amendment) Act, 2005.
The 2005 Amendment Act provides equal rights to daughters in the coparcener as compared to sons which was governed by Mitakshara Law and gave right of survivorship via amended Section 6(1)(a) and (b) of Hindu Succession Act,1956.
Although the 2005 Amendment provides equal right to female in coparceners as compared to son but still one question remains unclear whether women or daughter is allowed to become karat or manager of Hindu Undivided Family.
This was realized by the landmark case of Delhi High Court Mrs. Sujata Sharma v. Shri Manu Gupta & Ors[4] in which the Hon’ble HC held that, the eldest women member of Mitakshara Hindu Undivided Family can be its ‘Karat’.
In the case of CIT v. Seth Laxmi Narayan Raghunathalas[5] while considering whether the widow can be Karat, the court held that a widow was competent to become a karat of Hindu Undivided Family consisting of herself and her two minor sons.
SUCCESSION AND COPARCENER – HINDU UNDIVIDED FAMILY
The Hindu Succession Act, 1956
This act was enacted by parliament of India to amend and regulate the laws related to unwilling succession of Hindus, Buddhists, Jains and Sikhs. The law of succession is related to the legal distribution of the property or assets of a deceased to his legal descendents. It includes how the property was distributed amongst them whether on the basis of preference or to give equal share to each one.
The law of succession was divided in two parts:-
- Where the deceased has left behind the valid and enforceable ‘will’.
- When a person dies without leaving behind such ‘will’.
Applicability
According to 1956 act daughters or wife do not fall under the category of legal heir only the son are entitled to become legal coparcener. Women do not fall under the category of having coparcenary rights over her father’s property. The property of dying male instates or without firstly given to the heir within class I, if there is no one than it will pass to the male heir of class II, if there is no heir of class II then property is given to deceased agnates or legal male heir and if there is no agnates then property is given to cognates or their relatives.
The widow of a predeceased son, the widow of a predeceased son of a per-deceased son or the widow of a brother has remarried, she is not entitled to receive the inheritance.
In the case of females, they are all allowed to have ownership rights over all kinds of property, even before or after this act abolishing their “limited owner” status.
The Hindu Succession (Amendment) Act, 2005
Under the amendment of 2005, the provisions of Section 4, Section 6, Section 23, Section 24 and Section 30 of the Hindu Succession Act, 1956 were amended. It revised rules of coparcener property, giving daughter of deceased equal rights with son and subjecting them to same liabilities and disabilities.
In the landmark case of Vineeta Sharma v. Rakesh Sharma (2020) the Supreme Court held that a daughter coparcener would have equal rights in HUF property or equal right to family property by the birth irrespective of whether the father coparcener passed away before or after 9th September 2005.
What rights are provided to married women under the amendment act ?
After the marriage the daughter ceased to be a member of the joint Hindu family but she remains as a coparcener and is entitled to ask for her partition in HUF. She can also become Karat if she is eldest in the family after the death of the father.
Even if the married daughter dies her children shall be entitled for property if she is alive by the day of partition or if none of her children is alive by the day of partition then her grandchildren will be entitled to receive on partition.
The daughter cannot give her share of property while she is alive but is capable to give away by way of will. If the will is not prepared at the time of her death then her share in property does not devolve on other members but will pass on her legal heirs.
Prakash v. Phulavati (2016)
In this case the court held that if the coparcener died prior the 9th September 2005 his daughter will have no inheritance right in the coparcenary property. So, benefit of such amendment will only be given to “living daughters of living coparceners” on 9th September 2005.
Danamma v. Amar Singh (2018)
The father need not necessarily be alive on the date of enactment of Hindu Succession (Amendment) Act, 2005 for daughter to become coparcener. The court held that daughter could
claim their coparcenary rights even if their father were dead before the enactment of amendment.
CONCLUSION
There are various religions in India which are regulated under personal laws, which discriminate the rights of women whether she is daughter, mother or wife over the rights of son. Where son are given status of legal heirs on the other hand women are totally barred from this status. In comparison to personal laws, civil law is in a much better position. By the amendments the initiative was taken to improve the position of rights of women in the coparcenary property. But the Indian parliament adopts ambivalent attitude due to political pressure which cause much longer time to provide proper rights to women.
SUGGESTION
- To make more and more women aware about their fundamental as well as personal rights.
- Educate and empower women about spousal trust as there are still many who don’t know about Stridhan and how solely it belongs to them.
- Aware about the right to alimony and maintenance in case of divorce.
References
1. Hindu Joint Family and Coparcenary: An Analysis
2. Female as Karta of a Hindu Undivided Family – Experts & Views – Legally India
3. The Hindu Succession Act, 1956
4. Hindu Succession Act 2005: What Are Property Rights Of Daughter In HUF
5. Explained: Daughter’s Right in Property of HUF, Post-Supreme Court Ruling
6. Hindu Succession Act 2005: What Are Property Rights Of Daughter In HUF
7. can a female be coparcener? – The Hindu
[1] Article “Female as Karat of a Hindu Undivided Family” by ALBA LAW OFFICE ( published manuscript, June 23 2016)
[2] AIR 1972 AIL 924
[3] Article “ Position of Karat and the effect of amendment of Sec 6 of HAS 1956 in 2005” by Roopa Garava
( published manuscript in legal service India)
[4] [CS (OS) 2011/ 2006]
[5] 16 LTR 313 (Nag)
