barandbench_2020-08_9e562342-5730-4bdf-9b7d-78107166e845_HINDU_SUCCESSION_ACT

Hindu Succession Act

‘A son is a son till he gets a wife, but a daughter is a daughter all her life.’ With the fast pacing life and modernization there have been many amendments made in our Indian Constitution to safeguard the rights of women of our country. One of them, the most controversial one, is the Hindu Succession Act. The spot of Hindu women has always been imperiled to male members of the family even in accordance with the Dharmashastras.  Therefore, when the Hindu Succession Act was enacted in 1956; the lawmakers did not find any need for giving equal rights to daughters in the ancestral property of the father, due to their belief that the daughter will be a part of another family after her marriage and thus should not have right to inherit anything from her father’s property.

Partition is the compensation of the status of Joint Hindu Family, known as Hindu Family. As stated in the Hindu Law once the status of Hindu Family is put to an end, there is hypothetical division of properties among the members and the joint ownership of the property comes to an end. Partition could be partial as well. Our freedom fighters such as DR. B.R. Ambedkar fought for the basic rights and formulated the “HINDU CODE BILL” but yet, it was in vain. None of the social reforms made a difference in the status of the women of our country.

The framers of the Indian Constitution took note of the contrary and biased position of women in society and took special care to ensure that the State took positive steps to give them equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India thus not only constrain judgement against women but in suitable circumstances provide protective judgement in favour of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution which talks about the Directive Principles which are on similar lines as fundamental in the governance of the State and inter alia also provide that the State shall ensure equality between man and woman. Nonetheless these constitutional commands given more than fifty years ago, a woman is still abandoned in her own biological family as well as in the family she marries into because of unconcealed disrespect and unjustified abuse of these provisions by some of the personal laws. To carry out reforms to remove the inequalities and incapacities suffered by Hindu women, the Hindu Succession Act, 1956 was enacted and came into force on 17th June, 1956. It is laid down for all the Hindus including Buddhists, Jains and Sikhs. In the year 1986 the State of Andra Pradesh, in the year 1990 Tamil Nadu and in the year 1994 the State of Maharashtra and the State of Karnataka added Chapter II-A to Hindu Succession Act, 1956 containing Section 29-A, 29-B and 29-C, distinguishing the daughter in Hindu joint family governed by Mitakshara Law as an heir by birth in her own right in the same manner as the son having same right in the ancestral property as she would have had, if she were a son and comprehensive of the right to entitlement of survivorship subject to same liabilities and disabilities in respect thereto as that of a son. On partition, equivalent share will be allotted to a son as it is allotted to the daughters as a coparcener. Nevertheless, according to the Maharashtra Amendment Act 1994, said Chapter was not applicable to a daughter married before commencement of the Hindu Succession Maharashtra (Amendment) Act, 1994 which came into effect from June 22nd, 2014.By the said amendment the privileged right to gain property in respect of interest in any immovable property of intestate or in any business carried on according to him or her was also given to the daughter.

The Hindu Succession (Amendment) Act, 2005 is a milestone towards women empowerment. This Act of 2005 is an effort to remove the discernment by giving equal rights to daughters in the ancestral property as the sons have. Section 6 of the amendment act has an intervening effect, so far as the constitution of ancestral, partition of a coparcenary property and succession of interest of deceased member (male or female) are concerned. It also exceeds all customs and practices of Shashtric Law in this regard.

After a long process of around 50 years, the Centre in 2005 passed the amendment Act to eradicate gender discrimination in the ancestral property. The Pre- 2005 Amendment Act or the Hindu Succession Act, 1956 was discriminatory on the grounds that women were not considered as rightful heirs to receive the ancestral property since birth like the sons.

The Central Government raised objection to the idea of giving reflective operation to the 2005 amendment law because a coparcener in Hindu family law has a right to seek partition. For the same reason, the law secured a cut-off date of December 20, 2004 to dodge reopening of any settlement or partition verdict prior to this date. The court gave reception to the 20th December, 2004 (date) as cut-off but focused on the fact that if a daughter seeks partition or a share, the same cannot be denied on the basis of an oral family settlement but on a final decree of a court or a registered family settlement. If an oral settlement is to be presented, the bench held, it has to be supported “by public documents.”

There were various changes after the 2005 amendment: –

  • The act revised the provision which excluded daughters from ancestral property.
  • Coparcener property shall be allotted to the daughter as is allotted to sons if a Hindu passes away.
  • A daughter is entitled to demand a partition of the HUF.
  • A daughter is also eligible to position of her share in the coparcenary property at her own will.
  • If the female coparcener dies before partition, then children of such coparcener would be qualified for allotment assuming a partition had taken place immediately before her demise.

There was a lot of Confusion over the applicability of Section 6 for instance, In the landmark case of Prakash and others v. Phulavati (2016), the apex court opined that “The rights of coparceners under amendment act 2005 are applicable to living daughters of living coparceners as on 9/9/2005 irrespective of the birth date of daughters.” It simply means that If a coparcener(father) had passed away prior to Sept 9, 2005, the living daughter of the coparcener would have no right to coparcenary property in such case.

The Supreme Court in the case of Danamma v. Amar (2018), held that if the father passed away prior to date 09.09.2005 (the date on which amendment came) and a prior suit is pending for partition by a male coparcener, the female coparceners will be entitled to a share. These two cases created an era of confusion on the interpretation of Section 6 of the Hindu Succession (Amendment) Act 2005. 

Lastly, according to the recent judgment passed, the 2005 amendment Act has been declared retrospective, and daughters are given equal rights over the ancestral property of their fathers even if the father of the daughter died prior to September 9th, 2005. With this we all see a ray of light for the process of women empowerment.

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