The Hindu Succession Act, 1956 is a codified law, which deals with the matters of succession and applies to any person who is a Hindu by religion. But ever since its inception, it has always been under a series of objections for having a patriarchal view towards the society at large. The most talked about subject being why daughters were not given an equal right in their father’s property? Section 6 of (HSA) 1956 deals with the devolution of coparcenary property of a person who died intestate (without leaving a will). But in 2005, this law was amended to include daughters as coparceners by birth, carrying the same rights and responsibilities as sons.
But the question arises- Has this amendment really benefitted the daughter of a Hindu Family?
Though this was considered as one of the most important and much needed change in the legislative act but still owing to confusion and lack of awareness about their rights, females were hardly being seen benefitted out of it. Until the Supreme court judgement delivered on August 11, in the Vineeta Sharma V Rakesh Sharma case where the court held that a daughter is a coparcener by birth and that whether the father had died prior to or was alive on the date of the amendment was not relevant.
There were two other major judgments that addressed this issue earlier. In Prakash & Others v Phulavati & Others, delivered in 2016 by a division bench of the Supreme Court, introduced two basic criteria for applying the 2005 amendment to daughters.
First, it held that a daughter cannot reopen a partition that took place prior to December 20, 2004. Second, the amended section would apply to the daughter only if her father was alive on the date when the amendment came into force, that is, September 9, 2005.
The rationale given by the court in Prakash was that if the father who was a coparcener was not alive on the date that the amendment came into force, Section 6 as it existed prior to the 2005 amendment would apply.
Meanwhile, another division bench of the Supreme Court delivered a contradictory judgment in Danamma & Others v Amar & Others, in 2018. The judgment applied the amended Section 6 to give the daughter equal coparcenary rights although her father died in 2001, prior to the 2005 amendment. Here, the court noted that the amended Section 6 stipulates that “on and from the commencement of the amended Act of 2005”, the daughter of a coparcener shall by birth become a coparcener in her own right, in the same manner as a son.
The cases were then referred to a larger (three-judge) bench of the Supreme Court, and the outcome was the Vineeta Sharma judgment. The Supreme Court overruled the Prakash judgment in its entirety and partially overruled Danamma.
It said that since the daughter acquired the coparcenary right by birth, it was not necessary for the father coparcener to be living as on September 9. 2005.
If we go back a little, the coparcenary property which means a smaller unit of the family that jointly owns property was clearly considered a patriarchal concept, embedded in a joint Hindu family system where a male was entitled the right in the property by birth.
To add further, the 1948 Hindu Code Bill which abolished the concepts of Hindu Joint Family and coparcenary, led to a strong resistance from many parts of the traditional society who feared that this abolition would lead to disintegration of the family and give rise to endless matters of litigation. This gave birth to a compromise document in the form of Hindu Succession Act,1956 that adopted a midway approach between complete abolition and total retention. It diluted the principle of survivorship (by which surviving coparceners share the property) and made some inroads to protect the property rights of female heirs who were proximate to the male deceased (such as widow, daughter and mother). While this was a significant step, still there were other gender discriminatory provisions that were enacted in HSA 1956.
But with the amendment act of 2005, the HSA gives equal right to every daughter irrespective of her marital status, in the coparcenary property and with the Vineeta Sharma judgement coming in force; this decision is binding on all the courts across the country.
But a larger question remains: What practical significance will this judgement have? Does it really make our daughters aware about their rights? Even after knowing the amended facts will they gather the courage to move to the courts for their legal demands?
It is not easy for women to offend their natal family and approach the courts, seeking an assertion of their property rights. It goes without saying that the natal family is a very strong support system for a woman in the eventuality of the breakdown of her marriage or upon the death of her husband. There could be a few other apprehensions from a women side which can stop her from approaching the court- social stigma, victim blaming to name a few.
There is and there could be a large majority of women who would decide to remain silent when it comes to renouncing their property rights in favour of their brothers. In fact a larger section of women would happily surrender their rights in order to maintain peace and harmony in their family. After all, the traditional way to up bring a female has always been to teach her to compromise and portray herself as a peacemaker to protect the family.
Although various studies have found that all these reforms do positively impact a women’s education. There are studies which found that the 2005 Amendment has led to greater access to women-owned physical and human capital assets, and that it has enhanced the probability of daughters inheriting land. But at the same time we should not forget that any law which gives women a right to fight for her legal assets, especially any reform or future law on property rights of women, would need to confront the rigid cultural norms and practises of a male dominated society. It’s quite evident that a women share in the family property will consequently reduce the share of the male members of the family.
The dowry system in India which is yet another example of having a law favouring the women but no real power in majority of cases has also lead to a reduced share of property for the daughters. The amount of cash being spent on a female marriage including the jewellery and other fancy stuff gets substituted for the share in the property the contrary view that prevails here is that, if grooms family was assured of fair inheritance and property rights of the bride at later stage then expectations of dowry will significantly go down in most of the cases, will that happen or not is yet to be tested.
Also widows are entitled to inherit more land as compared to daughters and daughters even if they inherit, are not given equal share as compared to the sons of the family.
The Vineeta Sharma judgement is being considered as a landmark judgement when it comes to equal rights for women in a family property, but the truth is that for a female to actually derive benefit from all these, a lot of ground work needs to be done to improve the socio economic condition of a woman and to make her worthy about her existence in this patriarchal society.
And then comes the famous Haq Tyaag...
A living proof of concept that more the society is patriarchal, the more innovative are the ways to circumvent the laws of the land, though voluntary in nature but (un)surprisingly widely practiced in states like Haryana and Rajasthan, daughters are made to sign a release deed famously called as Haq Tyaag by which they “voluntarily” agree to surrender their rights in ancestral property in favour of their male family members.
Yes times are changing but these conservative norms will also take a painstaking long time to vanish from our society, and until then for all the daughters across India to benefit, it’s not just the law but also power, awareness and social acceptance of the law that is equally important.
To conclude we can say that the Vineeta Sharma case is just a beginning, there are still so many gender discriminatory provisions in the HSA, which needs to be addressed. For Example, the 2005 amendment has only carved out coparcenary rights by birth for daughters, not all women in the Hindu joint family still have a right in the coparcenary property.
Also, the HSA has two separate schemes of succession for men and women, which the law governing succession of no other religious community has.
In the case of women intestates (who have died without making a will), there are different schemes of inheritance based on the source of the woman’s property, which does not exist for male intestates.
Thus we can still hope that the Vineeta Sharma judgement would act as a guiding source of light to pacify the other gender discriminatory issues which are waiting since long to get the much needed attention they deserve.
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