This Blog is written By Miss. Vaasawa Sharma Pursuing Ph.D. from Amity University, Gurugram.
Abstract:
In the ancient
times, the position of women was very respectable and pious. In our epics such
as Mahabharata and Ramayan, women have treated the root of Dharmas. She was
always being given the position of between half of her husband. But with the
advent of time, the position of women gradually declined. In the period of dharma shastras and Puranas, the girls were not given the proper opportunity to
gain an education. Many of our customs and
traditions were in force which astonishingly made women suffer a lot. In the
21st century, certain laws and regulations were made o give women, a
better position and equal status with men. One such change includes the
major amendment made in the Hindu Succession Act, 1956 in 2005 which has given
rights to daughters in coparcenary property. Many other changes were also being
made to improve the status of women in coparcenary property so that it does not
violate Article 21and Article 15 of the Indian Constitution anymore.
Introduction
The
Hindu Succession Act 1956 is an Act of the Parliament of India enacted to amend
& codify the already existing legislation related to intestate succession,
among Hindu, Buddist, Jains & Sikhs. Intestate succession is the division
of the property without the way of a will. If a person has died intestate then
his property shall be divide as per the relevant provisions of this act. As per
the act of 1956, women do not have the right to inherit the property of her
father, meaning thereby she was not the coparcener in the Joint Hindu Family of
Mitakshara Law. But on the other hand, sons were given the full right to
inherit and enjoy the property of their father. So, there was the violation of
Article 15 of the Indian Constitution which ensures that no person shall be
discriminated against on the grounds of caste, color, race, gender, etc. In addition to
that where a Hindu dies without forming a will, then the division shall be in
accordance with the Hindu Succession (Amendment) Act of 2005.
The Amendment made in 2005 was based on
the recommendations made by the Law Commission in its 174th Report on Hindu
women’s property rights. In fact, the Commission had taken the subject suo moto
because of the glaring discrimination that existed in the Mitakshara coparcenary.
With the passage of time, it was being
observed that the property laws were favorable to men to a great extent which
needs equal treatment of women. From time immemorial, it has been observed that
men are in a dominant position as compared to women. So there is a need to
amend the law as well as to spread awareness with regard to the rights of women
in each and every sector of society. The same is in the statute of Hindu Succession
Act, 1956, the sons of Joint Hindu Family were given right in the coparcenary
property by birth but daughters were deprived of such rights. These certain
discriminations established an ultimate foundation of male dominance. But with
the advent of time, society has changed gradually, now the status of men
and women is equal and as a result of which the time demands changed in-laws
too. As the law is dynamic in nature (Hans Kelsen),
it needs time to time amendment and changed needs to be done in rules and
regulations to empower women. The Law Commission of India in its 174th report has recommended the amendment in Hindu Succession Act, 1956.
The major part of the amendment included
the major change in Section 6 of the Hindu Succession Act, 1956 which abrogated
survivorship rule. The process of such debate doesn’t stop at this one
amendment but with the passage of time, our judiciary has decided various
landmark cases on many other issues also. One of which was decided in the year
2020 in Vineeta Sharma v. Rakesh Sharma, clarifying the retrospective effect of
the said act.
The Position of women prior to Hindu
Succession (Amendment) Act, 2005 was not empowered. In post-independence
period, the Constitution of India has provided equal rights to both but still, there are certain laws, rules, and regulations which do not give proper rights to
women. But with the socio-economic development of
the society, the scenario has changed and improved gradually. Now the women
have been given equal status and opportunities in the matters of public
employment and others. Therefore, as society changed, the laws also need an
amendment.
Hindu
Succession Act, 2005
The Hindu succession act 1956 has
amended and codified the law relating to intestate succession among Hindus. The
act brought about changes in the law of succession among Hindus and gave rights
which were till then unknown in relation to women’s property.
That is to say that now the
daughters can also acquire an equal share in the coparcenary property of her father
as a son. Both have equal rights over the intestate property. So, the monopoly of
men over the property has been curtailed and women have been empowered in terms
of property. This was one of the critical changes acquired for our daughters. Under Section 6 of the Hindu Succession Act, 1956
that contains survivorship rule but with the amended law, this rule was
abrogated and the rule of intestate or testamentary succession was introduced.
Testamentary succession is the division of property by the way of will while
intestate succession is the division of intestate property as per HMA. So after
the abrogation of the survivorship rule, women are also given the status of
coparceners.
In a joint family governed by the
Mitakshara Law, the daughter of a coparcener shall –
a. By birth become a coparcener in her own
right in the same manner as the son.
b. Have the same rights in the coparcenary
property as she would have had if she had been a son.
c. Be subject to the same liabilities in
respect of the said coparcenary property as that of a son. and any reference to
a Hindu Mitakshara Coparcener shall be deemed to include a reference to a
daughter of a coparcener.
It is now being inferred that females
are now given the status of coparceners in Joint Hindu Family. She can also be
the Karta of the joint family if there is no male member in the joint family.
Judicial
decisions and judicial mandate over section 6 of the Hindu Succession amendment
act 2005
Parkash
Vs Phulwati & ors, It was held y the Supreme Court that the amended act is applicable to
living daughters of living coparceners as of 9th September 2005, without taking into consideration the year of birth of such daughters. Meaning thereby that the father has to be alive on the date of
enforcement of such act, then only daughters can claim the property in the property
of her father. Another case of Danamma
v. Amar (2018), the Supreme Court overruled the judgment held in Prakash
v. Phulwati case and held that whether the father is alive or not in 2005, yet the daughter can claim the right to inherit the property of her father. But with
these judgments, there arose confusion in the minds of people regarding the
division of coparcenary property of the father who has died before 2005. To
clarify such confusion, the Supreme Court in the case of Vineeta Sharma v. Rakesh Sharma (2020), held that the father need not be alive at the date of the 2005 amendment. Daughters are the coparceners
since birth and such right cannot be violated by anyone. So, daughters are given the status of
coparceners by birth which ended the gender discrimination in terms of
property.
Conclusion
With the passage of time, women in India have achieved a very different place. Now
the laws have been made which totally empowers the women. Women have equal
rights as men on the property. And much other legislation is also being
formulated to give women, a better position. So with the development of society, the law is also constantly changing which is making our daughters more
empowered. Now the women are taking a lead and managing the professional as well
as personal chores. We can grow, only
when our daughters grow.
Dr.Janhavi,
Overview of gender equilibrium from the perspective of woman’s coparcenaries
right, Journal of Internat Academic Research for Multidisciplinary,110
(2016).
Manoj Tiwari Changing dimensions of
women in mitakshra coparcenary: A Review International
Journal of Advanced Research in Commerce, Management & Social Science
(IJARCMSS) 264,272 (2019)
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