PublicationsSection 6 of The Hindu Succession Act and Equal Coparcenary Rights

September 20, 20200
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“Na stri swatantramarhati- swatrantram na kachit striyah”[1]

A phrase in Sanskrit which holds that women are inferior to men; they need to be dependent on men in order to stay safe and protected.[2] Women were completely deprived of their agency in ancient times. The roots of this deprivation are so deep that even now, women continue to fight for their rights. The fight for equality is certainly not over and is a long one. However, the significant progress that has been made through various laws and judgements have to be acknowledged. One such progress and a further step towards equality is the Hindu Succession (Amendment) Act of 2005, which gave equal coparcenary rights to daughters.

Mitakshara School of Thought

In order to analyse the Hindu Succession (Amendment) Act of 2005, we need to look at the Mitakshara school of thought and the principle act, which is the Hindu Succession Act, 1956. As per the Mitakshara school of thought, the son, the grandson and the great-grandson acquire a right by birth and become coparceners in the Joint Hindu Family along with the Karta.[3] Thus, we can see that, under this school, it is only the male members who get a share in the property as coparceners and not female members of the family like daughters, grand-daughters, etc. The source of this discrimination is patriarchy, which was, and still is, the dominant ideology of society.


Section 6 of the Hindu Succession Act 1956

The legislation did recognize the arbitrary discrimination and made certain minor changes to this through Section 6 of the Hindu Succession Act 1956. As per this section, the interest of a Hindu male in the coparcenary property shall devolve by survivorship, that is, to the other coparceners, which is the rule under the Mitakshara school.[4] However, the section also includes a proviso which says that if a Hindu male, upon death leaves behind a female class I heir or a male who can claim through this female, then his share of the coparcenary property will devolve by intestate succession, or as per his will.[5]

Thus, there is a notional partition, which is assumed to take place immediately before his death, to ascertain his interest, which would then go by succession, that is to his heirs and not by survivorship to the surviving coparceners.[6]

Even though this modification was better than the ancient Mitakshara rule which did not give women a right to inherit property, it still did not give equal coparcenary rights to daughters. It was only in 2005, that females were given equal coparcenary rights through the Hindu Succession (Amendment) Act 2005. As per the amended Section 6, a daughter becomes a coparcener by birth from the commencement of the amended Act.[7]

As per Section 6(3), the interest of a Hindu in the joint family property would go by succession to his heirs and not by survivorship after the notional partition, by which the daughters and sons would get equal shares of the coparcenary property.[8] Initially, a female could only inherit property through succession after the male coparceners ascertain their respective shares by way of the notional partition. But now, by virtue of the amendment, a daughter will get an equal share of the coparcenary property both on notional partition and through succession.

Contempt of courts

Interpretation of the Amended Act

Coming to the interpretation of the amended act by the Courts, there have been two major judgements. The first judgment is the judgment given in the year 2015 in the Prakash v. Phulwati[9] case. In this case, the issue was concerning the retrospectivity of the amended act. On this issue, the Supreme Court held that unless the intention of the legislature to make the amendment retrospective in nature is absolutely clear, the amendment will be considered to be prospective in nature. In case of the amendment in question, the Supreme Court held that the prospective effect was very clear from the text of the amendment. The final judgement was that the amendment applies to “living daughters of living coparceners as on 9th September 2005 irrespective of when such daughters are born.”[10] Thus, the Supreme Court held that for daughters to get an equal share as per the amendment, the father has to be alive on 9th September 2005.

The second judgement overturned the judgement of the Prakash v. Phulwati case. In the very recent case of Vineeta Sharma v. Rakesh Sharma (2020)[11], the Supreme Court observed that the nature of the amendment is retroactive and not retrospective. It observed that “a retroactive statute operates in futuro.”[12] The Supreme Court explained that a retroactive statute operates futuristically on the basis of a past event and in case of the amendment, a right by birth is given to daughters, which is the past event in case of living daughters. Here, the right is by birth, is already in existence and is not a new right. Thus, the Court held that since the right given is a right by birth, it is not essential that the father has to be living at the time of the commencement of the act.

Conclusion

Thus, the judgement gave equality to daughters in a true sense. We need more such laws and judgements which result in real equality and not fictional equality.

REFERENCES-

[1] A.M Bhattacharjee. ‘Hindu Law and the Constitution’ (2nd ed, Eastern Law House, 1994).

[2] Debarati Halder and K. Jaishanker. ‘PROPERTY RIGHTS OF HINDU WOMEN: A FEMINIST REVIEW OF SUCCESSION LAWS OF ANCIENT, MEDIEVAL, AND MODERN INDIA.’ (2008), vol. 24, no. 2, Journal of Law and Religion, 663. JSTOR www.jstor.org/stable/25654333

[3] Poonam Pradhan Saxena. ‘Family Law II’ (4th Edition, LexisNexis, 2018).

[4] Hindu Succession Act [1956], Act no. 30.

[5] Ibid.

[6] Poonam Pradhan Saxena. ‘JUDICIAL RE-SCRIPTING OF LEGISLATION GOVERNING DEVOLUTION OF COPARCENARY PROPERTY AND SUCCESSION UNDER HINDU LAW.’ (2016), vol. 58, no. 3, Journal of the Indian Law Institute, 337. JSTOR www.jstor.org/stable/45163395

[7] Hindu Succession (Amendment) Act [2005], No. 39.

[8] Ibid.

[9] Prakash v. Phulwati [2016] 2 SCC 36.

[10] Ibid.

[11] Vineeta Sharma v. Rakesh Sharma [2020], Civil Appeal No. 32601 of 2018.

[12] Ibid.

Bhattacharjee, A.M. ‘Hindu Law and the Constitution’ (2nd ed, Eastern Law House, 1994).

Halder, D and K. Jaishanker. ‘PROPERTY RIGHTS OF HINDU WOMEN: A FEMINIST REVIEW OF SUCCESSION LAWS OF ANCIENT, MEDIEVAL, AND MODERN INDIA.’ (2008), vol. 24, no. 2, Journal of Law and Religion, 663. JSTOR www.jstor.org/stable/25654333

Saxena, P. ‘Family Law II’ (4th Edition, LexisNexis, 2018).

Saxena, P. ‘JUDICIAL RE-SCRIPTING OF LEGISLATION GOVERNING DEVOLUTION OF COPARCENARY PROPERTY AND SUCCESSION UNDER HINDU LAW.’ (2016), vol. 58, no. 3, Journal of the Indian Law Institute, 337. JSTOR www.jstor.org/stable/45163395

CITE THIS WORK

Legal Maxim (October 26, 2020) Section 6 of The Hindu Succession Act and Equal Coparcenary Rights. Retrieved from https://www.legalmaxim.in/section-6-of-the-hindu-succession-act-and-equal-coparcenary-rights/.
Section 6 of The Hindu Succession Act and Equal Coparcenary Rights.” Legal Maxim – October 26, 2020, https://www.legalmaxim.in/section-6-of-the-hindu-succession-act-and-equal-coparcenary-rights/
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Section 6 of The Hindu Succession Act and Equal Coparcenary Rights.” Legal Maxim – Accessed October 26, 2020. https://www.legalmaxim.in/section-6-of-the-hindu-succession-act-and-equal-coparcenary-rights/
Section 6 of The Hindu Succession Act and Equal Coparcenary Rights.” Legal Maxim [Online]. Available: https://www.legalmaxim.in/section-6-of-the-hindu-succession-act-and-equal-coparcenary-rights/. [Accessed: October 26, 2020]

AUTHOR DETAILS

https://i0.wp.com/www.legalmaxim.in/wp-content/uploads/2020/09/IMG-20190904-WA0013__01.jpg?resize=160%2C160&ssl=1

Name: Mahima Ganesh Acharya 

Affiliation: Jindal Global Law School

Year: 3rd

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