Delivering yet another landmark judgment, the Supreme Court has bridged an inch of gap between a man’s equalities and that of a woman in our society. The ruling stated that daughters would have an equal birthright with sons to inherit joint Hindu Undivided Family (HUF) property. The 2005 amendment to the Hindu Succession Act, 1956, would hence have a retroactive effect since the right of inheritance of a daughter is obliged from her birth.
THE HINDU SUCCESSION ACT,1956
Enacted by the parliament on 17th June 1956, The Hindu Succession Act (HSA) codifies the laws relating to inheritance and intestate succession of a HUF.
The act applies to Hindus (Including Virashaiva, Lingayat or a follower of Brahmo, Prarthana or Arya Samaj), Buddhist, Jaina or Sikh by religion. It excludes all those people belonging to Muslim, Christian, Parsi or Jew by religion unless the Hindu Law governs them.
The act replaced the inheritance practiced, followed by the Mitakshara School law. Those include:
- The Madras Marumakkattayam Act, 1932
- The Travancore Nayar Act
- The Travancore Ezhava Act
- The Travancore Nanjinad Vellala Act
- The Travancore Kshatriya Act
- The Travancore Krishnanvaka Marumakkathayam Act
- The Cochin Marumakkathayam Act
- The Nambudri Law
- The Aliyasantana law
The Hindu Succession Act, 1956, granted women ownership of property. Before the act, females had none or limited ownership rights. Sometimes it was because of marriage that her rights to the property would be lost. At times, due to specific customs, daughters were deprived of inheritance. Widows were only entitled to the right of maintenance upon them and had no other family property rights.
THE HINDU SUCCESSION (AMENDMENT) ACT, 2005
The limitation that the HSA 1956 possessed was that it did not recognize daughters to have equal rights to inheritance or to be coparceners on par with sons in a family. This limitation led to bring an amendment to the original act in 2005.
The Hindu Succession (Amendment) Act, 2005, recognized both males and females as legal heirs. Daughters would now be a coparcener by birth in her rights in the same manner as the son.
A coparcenary is the one who shares equally in the inheritance of an undivided property. According to Mitakshara School it descends down to three generation: son, grandson and great-grandson.
The changes were made based on reform suggested in the 174th law Commission Report in 2000. It noted that “the framing of all the right to property laws have been exclusively for the benefit of man” even though the right to property is “important for the freedom and development of a human being.” The report opines for a change in the law that barred women from being considered coparcener of HUF.
Even before the center carried out the amendment, many states, like – Andhra Pradesh, Karnataka, Maharashtra, and Tamil Nadu, had made their amendments to the original Act.
Need for Ruling
Although the amendment granted rights to women, yet certain ambiguities prevailed. Whether law effects were retrospective in nature and if the rights of women depended on the living status of the father through whom they would inherit; these were specific questions that needed clarifications.
The top courts also ruled in some instances that the benefits of the amendments could only be passed on to the living daughter of living coparcener (Prakash v Phulwati (2015) case). This discrimination against female coparcener got resolved in the recent ruling that took place.
The present ruling comes in the backbone of “unobstructed heritage” as mentioned in section 6 of the HSA. The conferral of a right is by birth and is not obstructed by the presence of the owner of the property. It is one step further in removing gender-based discrimination. It also supports the fundamental rights to equality guaranteed by the constitution, which is otherwise violated in nature.
The judgment would also elevate women’s position in society. It will push those who lack economic resources and are marginalized by the male members of the family.
No doubt, the judgment is a progressive step. Yet, such legal framings would not impart gender equality immediately in our society.
The patriarchal concept can be visualized in the coparcenary property rights. Though legislations have come to counter this male-dominated mindset, certain stiff resistance would arise from traditionalists. Interfering into the customs of HUF can be seen as an encouragement to the disintegration of the family.
Half-a-decade after the original act was framed, legislation was made to legally close-in gender inequalities. But it needs more to narrow the social attitude towards discrimination against women.
The HSA is a subject under the concurrent list, yet only a few states brought amendments in favor of women’s rights. This indicates how the majority of the States remain backward in their thoughts.
The retroactive effect that the ruling brings in also has the potential to bring many exponential litigations knocking the door of the judiciary, which indeed the court never intended while delivering the judgment.
The amendment favours formal equality over substantive equality for women. It won’t be an easy task for women to claim their rights in their natal families. There would be the challenge of social stigma and blame in front of them to overcome.
The amendment has many benefits to offer than the concerns associated with it. There is mediation available before actually moving a legal petition. Generating awareness is the backbone to overcome problems still existing w.r.t to implementation of HSA, 2005.
There’s a need to bring changes in rigid cultural norms, beliefs, biases, and practices. There will be resistance against the division of share in the property, but narrowing the patriarchal mindset would reduce it in the long run.
As said, its only one step in reducing the inequalities treated to women. The judiciary seems to have stepped on the road to correct many more. For example, this time, the amendment has ruled coparcenary rights by birth for daughters and not all women in HUF.
The preference of inheritance has a scope of modification. And certain more provisions discriminatory in nature continue to exist.
However, the level-playing field set aside by the courts should be welcomed and encouraged to bring about behavioral change towards gender equality.
Article written by Nimai Ranjan Bibhar
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