It is said in various instances that “once a daughter is always a daughter, a son is a son until he gets married.” But when it comes to rights, sons are given preference. It is also the case in terms of property.
Daughters were not given the right to be a coparcener in the Hindu Succession Act, 1956. With the amendment in the Act 2005, the daughters are also conferred with coparcenary rights in the ancestral property. The status of daughters born after the amendment in terms of property rights was not clear. On September 9, 2020, India’s apex court passed a judgment in which it held that daughters like sons would have an equal birthright to inherit joint Hindu family property. The court also held that the amended Hindu Succession Act of 2005 would have a retrospective effect.
To understand the rights of being a coparcener, one needs to understand the meaning of the word ‘coparcener’ first. Coparcener is a person who has a birthright to parental property. Section 6 of the Hindu Succession (Amendment of Act), 2005, deals with the coparcenary rights. The bare act language of the act provides that:
“In a Joint Hindu family governed by the Mitakshara law, the daughter of a Coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
Any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. Provided that nothing contained in this sub section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December 2004.
(2) Any property to which a female Hindu becomes entitled under sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the predeceased child of a predeceased son or a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such predeceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.”
ANALYSIS OF RIGHTS
Earlier, rights of inheritance were not available to the daughters. Denial of such rights was a strict violation of equality. The logic behind this denial was that the family’s son would nurture the next generation and his parents and take the family’s name further. But again, this logic is not reason enough to discriminate against daughters. Women have been suffering from discrimination for centuries, be it inheritance or equality in opportunities. The Hindu Succession Act, 1956, clearly denied the right of inheritance. After approximately 50 years of the Act, finally, the first amendment addressed this Act’s gender discriminatory clause. It was a landmark amendment that gave daughters inheritance rights and was one of the leading steps towards gender equality. Two significant amendments were made in 2005, first was that it included daughters in the inheritance rights system. The second was that it omitted section 23 of the Act, which disentitled a female heir to ask for partition regarding a dwelling house, wholly occupied by a joint family until the male heirs chose to divide their respective shares therein.  The amendment brought significant changes in the matters of inheritance. Earlier, daughters did not have any right to the property by birth; sons would inherit all the deceased father’s property. Daughters only had a nominal share in the partitioned property in a joint Hindu family. This amendment was a big step towards breaking profoundly entrenched patriarchy and empowered women. It placed both men and women at the same level in terms of inheritance. It also enhanced women’s security by giving them birthright to inherit property. However, this amendment had a prospective effect, which means the daughters will have no right of inheritance in their father’s property if the father died before the amendment date. The daughters will have coparcenary rights only if the father’s death will be after the amendment’s date.
After 15 years of this amendment, the Supreme Court of India, in a three-judge bench case of Vineeta Sharma vs. Rakesh Sharma, passed another judgment taking forward the same. The judgment gave a retrospective effect to such rights. It provides the right of inheritance to the father’s daughters, who passed away even before the 2005 amendment. The daughters were given the inheritance rights in the same way as the son has. Retrospective effect will help to achieve the goal of the amendment of 2005 in its real sense. If the daughters were living on or before 2005, they would have full rights by birth on the parental property. Guaranteeing equality in every aspect is important for achieving an equitable society in its real sense. Denial of even one right is discriminatory. Guaranteed inheritance rights will give a sense of security to the daughters. It will make the daughters, whether married or not, empowered and independent. The notion which says that after marriage, a woman only belongs to her husband’s family does not specify what will happen to her in case of separation or divorce. Giving women’s rights in property is equally secure as a man’s right because women can also nurture the family’s name in the same way. Inheritance in the property will allow her to live more freely and independently without much reliance. Both son and daughter should be treated equally before and after marriage. Symbolically, women can also be Karta of a Hindu joint family. Limiting the rights of any individuals without any reasonable ground will make their constitutional rights go in vain. Women have been denied their requests for ages based on gender, and it’s time that the long-denied rights be given to them in its full sense.
The Constitution of India enshrines equality in its preamble. Equality and non- discrimination is the essence of the Constitution. Denial of inheritance in the property is a strict violation of the fundamental rights guaranteed under the Constitution. Despite the quality guaranteed by the Constitution, women have been suffering significant setbacks due to the enrooted patriarchy in society. Before 2005, the woman had no rights in the property of the father. The discrimination was purely based on gender. The logic was purely unreasonable. But the amendment of 2005, although a bit late but stood up for the rights of daughters. It gave equal rights of inheritance and broke the shells of patriarchy. But this amendment did not do complete justice. The judgment of 2020 took this step forward and gave it a retrospective effect. The judgment did full justice to the rights. The right of inheritance seems to be a small issue, but it has a massive implication. The amendment of 2005 and the judgment of 2020 is a significant step towards equality in rights. We are moving towards a modern and development where everyone is free and equal. But still, the majority of societies are stuck in that old patriarchal way of thinking. Now things have changed, women are at par with men, we have come a long way from the old and narrow patterns, these things are a step towards an equitable society, but still, we have a long way to go.
- The Hindu Succession Act, 1956, s.6.
- P.K. Das, Hindu Succession Property Rights of Women and Daughters (Universal Law Publishers, New Delhi, 2005).
- Vineeta Sharma v. Rakesh Sharma, (2019) 6 SCC 162.
BY TRIPTI KHIRWAL | G.D. GOENKA UNIVERSITY