Equal property right to Daughters (Fight to end gender biased laws)

Author: Yashika Jindal

Introduction

In our country the matters of inheritance are governed by Hindu succession act, 1956. Earlier this act gave the right to inheritance only two sons in the family. But in 2005 after the amendment of section 6 of Hindu succession act, daughters have equal right to inheritance and also give them the status of Coparcener. The Supreme Court in a recent adjustment ruled that daughter has same right in the property as the son no matter whether the father was alive at the time of this amendment. Although this judgment eliminates gender biased division of property but the law is not completely free from discrimination against the woman yet. The Hindu succession act governs the matters of inheritance of property Among Hindus, Buddhist, jains, Sikhs in India and all those who come under ambit of Hindu laws. It covers almost 80% population of India.

Provisions regarding division of property

Devolution of men’s property is given under Section 8 and devolution of woman’s property given under section 15.

• As per Section 8 off Hindu succession act 1956, the property of a man who dies without will be inherited by his hires, if there are no hires then to agnates, if there are no agnate then to cognates.
• Section 15(1) Give the order after division if a Hindu woman dies without creating a will. The order is given as 1st to the husband and her children and if the husband and the children are not surviving then to the hires of husband. If there are no hires of husband then to husband’s parents and if they are also not surviving then to hires of woman’s father. Also if that hires are not present then to hire of woman’s mother.
• Under these section two types of property is given. 1st which by woman acquires herself and 2nd any property she inherited from people other than husband or her parents.
• Section 15(2) of this fact states how the property which the woman had inherited from her husband or parents is to be dissolved. it is given that if a widow died childless, the property she inherited from her parents would given to the higher is of her parents. And their property she received from her husband would be given to her husband’s heirs. The above 2 provisions which were given in section 15 favors husband’s family rather than the woman’s own family. There is no such kind of provisions in the scheme for devolution for men’s property. In case of a man after his children and wife, all the property which belongs to him belongs to his family.

Under the provisions under Section 8 and 15, father has a stronger claim than the mother over the property. Also relatives of man have given a far higher priority than the natives are female.

Case Laws

Omprakash v. Radhacharan and ors. (2009)

In this case a woman named Narayani Devi, her husband died within the three months of the marriage in 1955. Then she started living with her parents and became financially well by doing a job. She died in 1976 without a will. So a dispute started between the woman’s mother and brother in law regarding the property off her. In this case the Supreme could said that since the woman don’t have any children and did not inherited the property in dispute from her parents then as per section 15 subsection 1,Their husbands hires means her brothers in law had a stronger claim on property than her parents. Eventually the property was given to her marital family which thrown her out from their home after the death of her husband. This shows the injustice and indiscrimination towards women by the laws as well as Supreme Court.

Mamta Dinesh Vakil v. Banai Wadhwa (2012)

This is the most important case where the gender biased act was criticized by the Bombay High Court. The court declared that The Hindu succession act is gender discriminatory and that’s why violates the right to equality given under Indian constitution.

Vineeta Sharma v. Rakesh Sharma 2020

On 11 August,2020 the Supreme court ruled that the daughters have a right and property by birth and they are considered as Coparceners as per the amendment of 2005 of Hindu succession act irrespective of the fact whether the father had died prior to or was alive on the date of the amendment in the act.

In this case two major judgments were addressed in the court. 1st was Prakash and others v. Phulwari and others 2016, In this case The Supreme Court bench introduced two basic criteria’s for applying the 2005 amendment regarding daughter’s right to property. First was that, that a daughter cannot be open a partition which had took before 20 December, 2004. And the second was that the amendment only applies to the daughter, whose father was alive on the date when this amendment came into force which was 9 September, 2005.

Also the same decision was taken by the Supreme Court in Mangammal v. TB Raju 2018.

But in Danamma and others v Amar and others 2018, a contradictory decision was given by Supreme Court. In this case the daughter has been given equal coparcenary right in father’s property although her father died in 2001 prior to the 2005 amendment. It was held that the daughter would get her coparcenary right at the time of her birth irrespective of when she was born and that devolution of properties later stage which occurs as a consequence of death of Coparcener.

All these cases were referred to the bench of Supreme Court in Vineeta Sharma case. The Supreme Court overruled the prakasha judgment and also partially overruled Danamma judgment. It was held that since the daughter acquired The Coparcenary Right by birth, it was not a necessity that the father coparcener to be alive on September 9, 2005.

Analysis of SC decision in Vineeta Sharma case

This decision shows that court is on a corrective path and trying to end gender discrimination. It is great that constitutional principles of right to equality are being applied to Hindu succession act and under Hindu laws but the task is not completely yet.

Section 6 of Hindu succession is the tip of the iceberg. There are so many gender biased provisions in the legal system. The Hindu Mitakshra Law of Coparcenary Has traditionally given Coparcenary Birthright to All the male members of Hindu joint family belongs to three generations after the last property Holder. And the 2005 amendment only carved out coparcenary Rights by birth for the daughters but not to the entire woman in Hindu joint family. Also The Hindu succession act has two separate types of schemes of succession for men and women, whereas no other religion has such kind of governing laws. In the case of women intestates who have died without making a will, there are different schemes of inheritance based on the source of the woman’s property, whether inherited from parents or husband and the presence of children, which does not exist for male intestates. Indeed, women are not viewed as independent entities that are capable of acquiring, owning and managing property. Third, agnates (persons whose relationship is traced purely through men) are preferred over cognates (persons whose relationship is not traced purely through men) even if the agnate is more remotely related. Fourth, while full blood (where two persons are born from the same set of parents) is preferred to half blood relatives (where the siblings share the same father but different mother), relationships by uterine blood (where the siblings share the same mother but different father) are completely. As an illustration, in the Schedule related to Section 8 HSA, the list of Class II heirs to a Hindu male contain a small explanation stating that “the term ‘brother and sister’ here, does not include a reference to a brother or sister by uterine blood”.

These are some examples of the rampant gender discriminatory provisions that continue to exist in the HSA. It is my hope that the Vineeta Sharma judgment can pave way for the necessary law reform processes to bring the HSA in line with the constitutional goal of gender equality.

Conclusion

This amendment and Supreme Court recent judgment have a great impact on the rights of daughter. Now daughters have equal right to property as sons. This would lead to enlargement of rights to daughters and end of gender discrimination to certain extent. This also indicates the protection of fundamental right to equality given by the Indian Constitution. This led to women empowerment especially in this time social and economic recession. It would provide woman with financial resources and security. It’s not an easy task for a woman to oppose her natal Family and approach the courts for assertion of their property rights. As the Natal family forms support system of the woman. So after this amendment and The Supreme court’s judgment in Vineeta Sharma case the woman right to property has become compulsory, so it would reduce the women suffrage in society.

References

Devendra Damle, Hindu Succession Act, 1956: The Fight To End Gender-Based Discrimination Continues, Live Law
https://www.livelaw.in/columns/hindu-succession-act-1956-the-fight-to-end-gender-based-discrimination-continues-163978?infinitescroll=1

V. Venkatesan , Interview | ‘The Project of Reforming the Hindu Succession Act Is Far From Over’: Dr Saumya Uma, The Wire https://thewire.in/law/hindu-succession-act-women-supreme-court

Shahistapathan, Succession to the property of a Hindu Male, Legal Services India.com http://www.legalservicesindia.com/article/1002/succession-to-the-property-of-a-hindu-male.html