DEMOLISHING GENDER INEQUALITY ON RIGHT TO PROPERTY

BY Mr. Prajeish.D


1.INTRODUCTION:

India has celebrated its 73rd Independence Day recently. Being a democratic nation one of the primary aims of our nation and the supreme law of the land “The Indian Constitution” is to strive equality among the citizens of the nation. The Hindu Succession Act was enacted in the year 1956 to lay rules and regulations on the succession to property especially in case of Joint Hindu Families. This Act was subsequently amended in the year 2005 which brought a tremendous change in the rights of women to property in Joint Hindu Families. This article will discuss the enactment and the recent judgment of the Hon’ble Supreme Court with regard to the right of property to women.


2.BACKTRACKING THE LAW:

Section 6 of the Hindu Succession Act, 1956 when enacted was completely a different provision compared to the amended one. It dealt with the devolution of interest in a coparcenary property of a person who died intestate. It said that when a person dies intestate leaving only male heirs, the coparcenary property shall devolve only to his male sons, grandsons and great grandsons, i.e., not more than three degrees to the coparcener.

The coparcenary property devolves among the male survivors by survivorship. The proviso further stated that when a coparcener dies intestate leaving a female survivor or any male relative who claims through such female survivor, the interest of the coparcener in the coparcenary property shall devolve by testamentary or intestate succession and not by survivorship.

This provision had been a hindrance upon the right to equality of women upon the coparcenary property. Being a rightful heir of the coparcener, even women should be granted equal rights in the coparcenary property. Thus, unamended section 6 of the Act was criticized for being biased and favorable to the male heirs in the Joint Hindu Family. This imposed a need for amending the law to ensure gender equality to the citizens of India.


3.AMENDMENT TO SECTION 6:

The Hindu Succession (Amendment) Act was passed in the year 2005 with effect of commencement from 09.09.2005. Section 6 of the Act was amended by this amending enactment which granted equal property rights to female heirs of a coparcener. The amended provision stated that the coparcenary property devolves to the male and female heirs of a coparcener either by survivorship or by succession.

The Amendment stated the both son and daughter have equal rights to the coparcenary property and gender cannot be a reason to deny such rights especially to women. Further, the amendment stated that the daughter of a coparcener shall even be considered to be a male heir of the coparcener and the same rights and liabilities shall be bestowed with her.

The amended provision was considered to be a pathway towards gender equality. Right to property cannot be denied merely on the basis of gender. The Amendment stated that women have equal rights to coparcenary property w.e.f 09.09.2005 and any settlement, sale, partition done prior to 20.12.2004 will remain unaffected by this amendment.


4.RECENT SUPREME COURT DECISION ON SECTION 6:

Two controversial judgments of the Supreme Court of India required the constitution of a larger bench to answer the question of law whether both the father and daughter need to be alive on the date of the commencement of the Amendment Act, 2005. The Supreme Court in the case of Prakash v. Phulavati[i]held that Section 6 is not retrospective in operation and will apply only when both the coparcener and his daughter were alive on the date of the commencement of the Amendment Act, 2005, i.e., 09.09.2005.

However, in the case of Danamma v. Amar[ii]the Supreme Court held that the amended provisions of Section 6 confer full rights upon the daughter coparcener. Any coparcener including a daughter can claim a partition in the coparcenary property and the requirement that the father/coparcener should be alive on the date of the amendment is not an essential factor to confer rights upon the daughter. In the above case, the father/coparcener died in 2001 leaving two daughters, two sons and widow. The property was partitioned equally among them with each getting 1/5th share of the coparcenary property.

Thus, in the case of Vineeta Sharma v. Rakesh Sharma, the question of interpretation of Section 6 of the Hindu Succession Act, 1956 amended in the year 2005 was placed before the Hon’ble Supreme Court.


5.FINDINGS OF THE SUPREME COURT:

Various arguments were placed before the Supreme Court on how Section 6 of the Hindu Succession Act, 1956 amended in 2005 should be interpreted. After hearing all the arguments, the Supreme Court made the following findings:

1. Acts passed by the legislation have three effects:

a) Prospective – operates from the date of its enactment conferring new rights.

b) Retrospective – operates backwards and takes away or impairs vested rights acquired under the existing law.

c) Retroactive – its operation is based upon the character or status that arose earlier. For example, S. 6 gives right by birth but the right is enforced from the date of enforcement of the law, i.e., 09.09.2005. Section 6 acts to be an retroactive provision thus conferring the right to property to daughters by birth and not by survivorship.

2. Coparcener right is acquired by birth in the Joint Hindu Family. The amended provisions under Section 6 makes daughters by birth a coparcener in her own right and in the same manner as the son and has the right to property as if she had been a son.

3. It is not necessary that there should be a living coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter acquires the right under Section 6 by birth and not by inheritance. Therefore, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not.

4. The contention that when a father/coparcener dies intestate before the said amendment his interest in the coparcenary property will merge with the surviving coparcenary and the daughter from such father/coparcener does not have any right upon the coparcenary property cannot be accepted since the daughter’s right is by birth and not by survivorship or inheritance.

5. Further, the language used in Section 6 of the Act by the Parliament is very clear and crisp leaving no room for any wider interpretations. It does not leave any room to entertain the proposition that father/coparcener through whom the daughter is claiming coparcenary rights should be living on 09.09.2005.

6. The decision in the case of Prakash v. Phulavati[iii]that only living daughters of living coparceners would be entitled to claim a share in the coparcenary property under Section 6 cannot be accepted and hence stands overruled.

7. Partitions which are claimed to happen before 20.12.2004 must be proved with strict onus of proof. (onus of proof – responsibility of proving that something is true in Court).

8. Oral partitions cannot be held to be valid partitions. However, in certain exceptional circumstances can be held to valid when backed up by requisite public documents or decree of the Court.


6.CONCLUSION:

The 2005 amendment to Section 6 removed gender inequality which had been present in the Hindu Succession Act, 1956. However, various petitions were standing pending before various Courts since there was no proper interpretation of the said provision by the Supreme Court of India or any other High Courts. This recent judgment by the Supreme Court clears all the ambiguous interpretations on Section 6 of the Act and also ensuring gender equality. Right to property is a constitutional right. The fact that the father/coparcener not being alive on the date of the amendment of the Act in 2005 cannot be a sound reason to deny coparcenary rights to daughters of the father/coparcener since the right is acquired by birth and not by survivorship.

[i] Prakash v. Phulavati, (2016) 2 S.C.C. 36 (India). [ii]Danamma v. Amar, (2018) 3 S.C.C. 343 (India). [iii]Supranote 1.

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