INTRODUCTION:
Justice Arun Mishra while pronouncing the landmark judgment said, “once a daughter always a daughter and a son is a son till he is married. The daughter shall remain coparcener throughout life irrespective of the fact whether the father is alive or not.” The judgement today has eradicated the famous patriarchal society sayings “Betiya parayi hoti hain” Now this judgment by the apex court of our country has recognized the status of Hindu daughter’s as equal as to the son.
WHAT IS JUDGMENT ABOUT
Supreme Court on 11th August, 2020 in a landmark judgement held that daughters will have equal coparcenary rights in Hindu Undivided Family properties, irrespective of whether the father was alive or not on 9 September 2005, when an amendment came into force.
Coparcener is a term used for a person who assumes a legal right in parental property by birth only. Asserting that this right under Section 6 of the Hindu Succession Act, 1956, is acquired by birth, the bench, comprising Justices Arun Mishra, S. Abdul Nazeer and M.R. Shah, observed, “The provisions contained in substituted section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9, 2005 (the date when the law came into force),”
The bench said whether the father was alive or not, daughters born before September 9, 2005, too could claim equal right in inheritance.
The verdict makes it clear the amendment to the Hindu Succession Act, 1956 granting equal rights to daughters to inherit ancestral property would have retrospective effect. The verdict has settled all the ambiguities related to the 2005 amendment.
HOW THAT JUDGMENT IS PATH BREAKING?
The Hindu Succession Act, 1956 was amended in 2005. Before 2005 amendment, according to Sec. 6 of the Hindu Succession Act, 1956 only son had an independent birth right in joint family property as a coparcener, daughter can not be coparcener but after the 2005 amendment has included both son and daughter have right and liability from the date of birth as a coparcener in joint family property. Section 6 of the 2005 Act removed the discrimination between married and unmarried daughters. It took away the notion that after marriage the daughter belongs only to her husband’s family.
In similar way, before 2005 amendment, according to Sec 23 a dwelling house where member are residing, no female heir can claim partition and daughter have right of residence only when she is unmarried, deserted, or widowed. But 2005 amendment, included married daughters also in Sec 23 and said that both daughters (married or unmarried) have the same right to reside in and claim partition of the parental dwelling house same as son.
However, post this, different courts interpreted section 6 of the Hindu Succession Act, 1956 as amended by the Hindu Succession (Amendment) Act of 2005.
Conflicting judgments earlier
The need for a three-judge bench to hear this matter arose because of conflicting judgments passed by two-judge benches of the Supreme Court earlier. In a 2015 judgment in the Prakash v. Phulavati case, a two-judge bench had held that if the coparcener (father) had passed away prior to 9 September 2005 (date on which the amendment came into effect), his daughter would have no right to the coparcenary property. However, in the Danamma v. Amar case in 2018, another two-judge bench had held that the two daughters in this matter would get a share in the property, even if their father had passed away in 2001. A three-judge bench headed by Justice A.K. Sikri had taken note of these conflicting judgments in November 2018 and decided that a three-judge bench should settle the law.
Hence this landmark judgment by the Apex court has cleared all the ambiguities of the 2005 Amendment of Hindu Succession Act (2005 Amendment Act) and said daughters have equal rights in her father’s property irrespective of whether the father has passed away before the amendment of 2005 Act or after that, whether the daughter is married or unmarried, daughter has got inherent rights by birth to the coparcenary property.
This Judgment is pathbreaking as Supreme Court judgment will rectify a discriminatory social practice. Gender equality is a fundamental principle of any modern, progressive society and state. When daughters get her rights equally at home then definitely she will be treated equally in the society too. This will be a step to abolish various cruelty done upon the women in her parents home as well as in her matrimonial home.
WHAT IS THE FUTURE LEGALLY AND SOCIALLY AFTER THIS JUDGEMENT?
The Hindu Succession (Amendment) Act that was passed in September 2005, which had tried to remove the disparities by paving the way for daughters also inheriting the property of intestate in case of a Hindu joint family. Despite the amended law coming into place, it is not unusual for wedded women to surrender their shares in the joint family or ancestral property (of their birth) in favour of the male members, in order to sustain affable familial bonds. Daughters may then challenge such settlement or sacrifice in Indian courts in the future. In our Country, mostly women are deprived of their rights which include property rights also.
Supreme Court’s judgement has taken one step ahead to promote gender equality. Both daughters and son will have equal rights from the day they are born. This judgment will have wider affects on the society and legal status of the women in our country. Supreme Judgement has made very clear by this judgment that unlike son, daughters also have equal rights on their parents property and the right will remain same even after their marriage. Marital status will not effect the rights of women in the property of the parents/ancestral. Unmarried or married, daughters will be always daughters. Chances are there, various atrocities against women will reduce due to equal rights of daughters in father’s property. Domestic violence against the women in the matrimonial home if the women are no longer dependent on anyone. Daughters having equal rights in the father’ s property will definitely abolish dowry system in our country. Inspite of having various laws against the dowry, still dowry system is followed in our country and women are being continuously getting victimised for dowry harassment. The 2005 amendment of Hindu Succession Act and this judgment will help to stop dowry system.
WHAT IS THE STATUS OF DAUGHTERS IN PROPERTY (IF THEY ARE MUSLIMS OR CHRISTIANS)
Christian and Muslim women are still being governed by their Canon and Islamic Laws, the progress of Hindu women after independence was so rapid that they achieved complete gender equality in the matter of property rights. The property rights of women belonging to other religions are unequal and unfair. Hindus, Sikhs, Buddhists and Jain are governed by one code; Christians are governed by another code enacted by the British for the British Christians in India. Muslims do not have a code regulating property rights and they are governed by their personal law.
In Islamic law, the prophet totally reformed the customary law of inheritance and made husband or wife an heir. Females and cognates were made eligible to inherit. Thus, Islam gave women a share which was denied to her in pre Islamic Arabia. Even though she is given a share, she is treated unequally by giving her half the share of her brother. Quran assures her a share although not equal to that of her brother. Quran compensates it by giving her right to Mehr which she can keep with her and claim maintenance from the husband even if she is rich.
Property rights of Christians in India is governed by the Indian Succession Act, 1925. About 28 million people in India follow this faith, which is 2.3 per cent of the country’s population. Earlier, Christians in Kerala Travancore followed a set of their own rules while Cochin Christians had their own rules. The Christians in Pondicherry took to the French rules while those in parts of Goa, Daman and Diu followed the rules set by the Portuguese. These were later repealed and the Indian Succession Act, 1925 is binding on all. Christian women can claim a share of the father’s property under section 37 of the Indian Succession Act 1925 even though they had been given stridhanam.
CONCLUSION:
Despite strong Constitutional guarantees and courts taking an expansive definition of the fundamental right to life under Article 21 of the Constitution, property rights of Indian women are far from gender-just even today. Even if we have gender-just inheritance laws, their effective and timely implementation may be difficult, given the society we live in. There is need to social awareness and to educate people to change their attitude towards the concept of gender equality. The need of the hour is also to focus attention on changing the social attitudes in favour of equality for all by enacting a uniform law. Campaigns for legal literacy; efforts to enhance social awareness of the advantages to the whole family if women own property; and legal and social aid for women seeking to assert their rights, are only a few of the many steps needed to fulfil the change incorporated in this judgment and in the 2005 Amendment Act.
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