Gender equality has always been the offshoot of prolonged battles both in legal fora and on the streets. If Saudi Arabia gave its women the right to vote and run for office as late as 2015, India has finally given equal coparcenary rights to its women in the true meaning of the term only in August 2020.
Prior to the 2005 Hindu Succession Act Amendment, a daughter ceased to be a coparcener in her father’s HUF. The Supreme Court amended Sec 6 of the HSA 1956 and made daughters co-parceners. However, this did not provide for retrospective application of the law. The 2005 amendment was brought to eliminate the inequality present in the Hindu Succession Act 1956. The 1956 HSA did not recognise the right of women to be coparceners in their father’s ancestral property. Coparceners are the members of a family who hold rights and interests in the ancestral property of an undivided Hindu family (HUF). Such property is called coparcenary property. According to the 1956 Act only the sons could be coparceners. The 2005 amendment accorded equal rights and liabilities to a woman even if she is married off and becomes a member of her husband’s family but that was often missed while pronouncing judgments because of certain ambiguities.
The right continued to be illusory as several High courts denied women an equal share in the ancestral property as the concept that upon marriage a daughter loses her rights in her natal home continued to prevail in both society and courts.
India saw a very significant positive development in terms of gender equality laws this month. It is one of the most significant developments that will be remembered forever in the annals of history for its impact on gender equality in the country. The Honorable Supreme Court of India on 11th August gave a historic ruling regarding the rights of Hindu daughters on parents’ property. A three judge bench headed by Justice Arun Mishra ruled that the Hindu Succession (Amendment) Act (HSAA) 2005 ensures equal rights of a daughter to be coparcener in her father’s ancestral property from the day of her birth.
The bench was responding to a plea filed by two sisters of the Savadi family in Karnataka seeking a share in their late father Gurulingappa Savadi’s property who took the matter to the highest court of appeal, since they were born prior to 2005 and their case was dismissed by the trial court and the same was upheld by the Karnataka high court.
In 2005, the Legislature, amended the Hindu Succession Act 1956, and fulfilled the dream of Dr Ambedkar, by granting coparcenary rights to daughters. The discrimination as contained in Section 6 of the Hindu Succession Act, 1956 was removed by giving equal rights to daughters in the Hindu Mitakshara coparcenary property on par with sons.
The apex court in the case of Prakash and Ors vs Phulavati and others laid down that the provisions of the amendment are applicable prospectively to living daughters of living coparceners as on 9.9.2005, irrespective of when such daughters are born. However the judgement of Justices AK Sikhri and Ashok Bhushan pronounced on February 1, 2018 in Danamma vs Amar [2018 (1) SCALE 657] granted coparcenary rights to a daughter of a coparcener who had died much before 9.9.2005.
This created a divergence of legal opinion and the matter came to be referred to a larger bench for resolution in the case titled Vineeta Sharma v.Rakesh Sharma where the SC in its landmark judgement pronounced on Aug 11th 2020 , after discussing the law of creation of Mitakshara coparcenary and the nature of the rights of the members of a coparcenary under the Hindu law, proceeded to hold the right of the daughters under the Amending Act of 2005 to be retroactive rather than prospective.
The court ruled that a daughter (whether in existence or not on the date of amendment) will be entitled to an equal share as that of a son (i.e. her brother) in her father’s property. Daughters wanting to claim a share in their ancestral property can now do so regardless of the year of their birth. Children of a pre-deceased daughter can claim a share in HUF property to the extent it would have devolved upon their mother.
Since daughters were earlier denied the right to their father’s property on grounds of being born prior to 2005 when the Act had come into existence the judgment of Vineeta Sharma vs Rakesh Sharma case will be considered a landmark judgment because it has cleared all ambiguities regarding the 2005 law.
The 2005 amendment was not clear on the role of the daughters and therefore, had long been interpreted in different, often contradictory, ways in different cases so far. The recent verdict by the apex court has cleared the air on this once and for all. The Supreme Court bench has given a clear interpretation on the intent of the Section 6 of the amended act. The judgment says that the Section 6 gives an ‘unobstructed heritage’ (a right by birth) to the daughter and for a woman to be coparcener, and her father need not be alive before 9 September 2005, the day when the amended act came into effect.
Another important aspect of this judgment is the stand on ‘oral partitions’. Earlier ‘oral partitions’ were permissible, and the burden of proof was on the person or persons claiming there was a verbal division of property. However, according to the 2005 amendment partitions have to be through a proper legal process only. It has to be a court deed or a will. This has simplified the process and the instances of women being deprived on the basis of fraudulent ‘verbal partitions’.
“The court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on an unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized under section 6(5)”.
The Supreme Court therefore ruled that oral partitions are not legally acceptable. However, a verbal division can be accepted by the court in extraordinary cases when such claims are supported by public documents.
This interpretation of the validity of a partition definitely will protect women from injustice meted out to them on the basis of some verbal partition claims. Cases are not rare when greedy male members of a family take advantage of this provision and produce concocted evidence in support of such verbal partitions. Also, it will encourage daughters to claim their family heritage which is still not very common in our country. Our society in general expects women, especially the married women, to forego their share in ancestral property in favour of their male siblings. The latest court judgment is a step that will help in doing away with such mindset.
The judgment has not only made women equal right holders in their father’s ancestral property but have also accorded equal liabilities to them. This would prove to be an important step in cases of debt recovery by financial institutions etc.
The judgment being applicable in retroactive effect will have a direct impact on a lot of ongoing property litigations. The apex court has requested all the courts to decide the pending cases within six months in light of the latest judgment. This will definitely help a lot of women get justice and will secure their rights.
Much has been said about gender equality. Many initiatives have been taken at the government, private or individual level. But to back up all such efforts we must ensure economic equality for women. Equal wages and equal rights on property are two major cornerstones of gender equality. Without ensuring economic freedom and equality we cannot empower women. The latest judgment on the equal rights of women on the ancestral properties is a significant step in this regard. Significantly the Supreme Court bench ensured equality with Vedic laws (Mitakshara system) without radically questioning the basis of Hindu personal laws. Thus the judgment and its social significance can be established without the resistance on the ground of traditions from conservative quarters.
The judgment related to the interpretation of the Hindu Succession (Amendment) Act 2005 will have far reaching effects on our social and economic milieu. For ages, a large number of women have not only been deprived of their rights to their ancestral property but have also been discouraged to stake claim to such property. The latest judgment on the rights of daughters to be coparceners to their father’s ancestral property has paved the way for a new era of equality and justice for women of this country.
What with triple talaq being abolished from 30th July 2019, women getting equal coparcenary rights in 2020 India is certainly making giant strikes towards women’s empowerment. I would like to wholeheartedly welcome the positive and progressive stand taken by our Supreme Court. I hope we are successful in bringing awareness about this judgment among the people especially women so as to ensure gender equality to Indian women in the truest sense.
(The author is a YSR Congress MP and national general secretary and can be accessed at firstname.lastname@example.org. Views are personal.)