Equal inheritance right to hindu daughters: A step towards Gender Equality

By- Shambhavi Kant

Abstract

Recently, the Supreme Court of India took a major step towards the gender equality and gender justice by declaring equal inheritance rights to Hindu daughters. The legislation that conferred coparcenary status on Hindu women dates back to 2005, but it had certain limitations. The apex court held that a daughter’s right of inheritance flows from her birth and does not depend upon any other factor The article analyses the right of Hindu daughters to inherit ancestral property.

Introduction

On 11th August 2020, the Apex Court of India, in a landmark judgement, declared that daughters will have inheritance rights equal to that of a son on ancestral properties. Prior to this, daughters of Hindu undivided families didn’t have equal coparcenary rights. A coparcener is person who inherits property from his/her father, grandfather or great grandfather. The right to demand a share in the ancestral property is available only to a coparcener. This right of inheritance was only available to sons and daughters didn’t have the right to demand any share in joint family property.

The inheritance right of Hindu Daughters

Traditionally, in a Mitakshara Coparcenary , Hindu males had a right to inherit their father’s property, by birth. This relationship was established at the moment of their conception. However, this right to inheritance (by birth) was not available to Hindu daughters. The first major step towards gender equality was through the Hindu Succession Act of 1956. However, it didn’t provide absolute inheritance rights to women. The right of inheritance was limited to un-married daughters and widows of the sons. A daughter-in-law could only inherit property when she becomes a widow.

 In 2005, an amendment was introduced to Section 6 of the Hindu Succession Act, 1956. According to the amendment, daughters have a similar right to inheritance as their male counterparts. The amendment recognised Hindu daughters as coparceners in ancestral property. It came into force on September 9, 2005, but it contained a proviso that the amendment would not nullify any disposition of property by partition or will that had taken place before December 20, 2004.

The amendment was a major step towards the upliftment of women’s social and economical position in the society. However, the application of this section had certain limitations. Under Section 6 of the Hindu Succession Act, a daughter could enjoy this birth right to inheritance only if her father was alive at the time the amendment was introduced in the Act.   In the case of Prakash v. Phulavati, the Supreme Court of India fixed the date to decide the position of living coparceners to September 9, 2005 and held that both the daughter and the father must be living on the date of the Hindu Succession (amendment) Act, 2005. It was further held that the amendment cannot have any retrospective effect. In Mangammal v. T.B. Raju, it was held that since the father died before the amendment was introduced i.e. before September 9, 2005 the daughters were not entitled for any share in the ancestral property as they were not considered to be coparceners.

Such limitations lead to oppression and negation of women’s fundamental right to equality. It not only hampered the social and economic growth of women but also discriminated against them solely on the basis of their gender. Various provision of the Hindu Succession Act discriminate between males and females solely only the basis of one’s gender. For instance, Sections 8 and 15 of the Act, deal with the devolution of property owned separately by Hindu male and Hindu female, respectively, upon their death. The Hindu man’s primary heirs remain his blood relatives; while on the other hand, the property of a Hindu woman devolve upon her natal family only if there are no heirs of the husband”.

The constitution of Indian prohibits discrimination on the basis of an individual’s gender (Article 15) and also guarantees equality before law (Article 14). In an attempt to achieve constitutional equality, the three-judge bench headed by Justice Arun Mishra, held that daughters also have an equal birthright to inherit joint Hindu family properties. The court also held that the amended Hindu Succession Act will have a retrospective effect. Daughters who were born before September 9, 2005, regardless of the living status of father, can also claim to inherit joint Hindu family property or ancestral property. The order grants equal inheritance rights to both daughters and sons. 

This judgement will have a positive impact on the lives of various females.  It is a way to address the economic, social and cultural barriers which put women in a vulnerable position. It will ensure gender equality and combating discrimination and prejudices against daughters. It will grant an opportunity to many females, who were not granted their claim, to have a share in the property. Hindu women can now come forward and claim their rightful shares which they may have been deprived because of a law that partially excluded a class of women which is not only discriminatory in nature but also defies the fundamental rights of a woman.

Conclusion

 The condition of women in India is vulnerable because of pre existing norms and patriarchal perception. Through this case, the Supreme Court of India attempted to challenge the strongly engraved patriarchal perception that only men can possess and manage property. This notion hampers social as well as economical growth of women in India At the grass-root level; it will directly affect the lives of hundreds of thousands of people living in rural India where the most common form of property is land that is owned jointly by the family. This judgment could coagulate women’s economic interest in ancestral properties. It is major step towards upliftment of women in India. It may also be effective in curbing various social evils like the tradition of dowry, female feticide and child marriages which is still widespread in various parts of the country. In order to ensure uniform implementation, the government needs to devise effective strategies and measures.

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