Gender inequality is something that India is fighting since the beginning. Daughters right on the property are only one aspect of inequality. The Hindu Succession Act, 1956 deals with the issue of succession and inheritance of property. In simpler terms, we can say it tells who will get the property further in a family. The act divides the property into two kinds i.e., Ancestral and Self acquired property. Ancestral property as the name is self-explanatory, it is the property acquired by ancestors of a family. And self-acquired property is the one that you have bought or built from your income. According to the act, only co-parceners have the right to ancestral property. And co-parceners are only those who are linear descendants of the same ancestors i.e., male members of a family. No female had any right on an ancestral property before the amendment which was passed on September 9, 2005. Before 2005 the females of a family faced discrimination based on gender for the property.
The Hindu Succession (Amendment) Act, 2005
Then, the amendment cancelled this rule and introduced testamentary and intestate succession. According to which daughters are also considered to be co-parceners. But the confusion was faced by people whether is it necessary that the father should be alive on the date September 9, 2005, to get a daughter as a co-parcener or not? In the case, Prakash vs Phulavati it was held that the right on the property will be given only to the living coparcener’s living daughter i.e., a father needs to be alive on the date September 9, 2005, to give rights to her daughter on the property.
Then, in the case, Danamma vs Amar, it was held that living of the father on the date is not necessary, whether he is alive or dead, the daughter will still get her right on her father’s property. These two opposite judgements created confusion among the people and this puzzlement was solved in the landmark case, Vineeta Sharma vs Rakesh Sharma (2020) where it was held that under the amendment, 2005, daughters get the coparcenary rights by birth and this amendment has retrospective effect. So, the fact of whether the father is alive on the date or not is irrelevant.
This amendment deals with the right of daughters on ancestral property. But now the question arises do daughters have the right to self-acquired property? This question was answered in the recent case of Arunachala Gounder (Dead) By Lrs vs Ponnusamy (2022).
There were two issues in front of the court:
1) Can daughters inherit the self-acquired property of their father who died intestate or devolves on fathers’ heir through survivorship?
2) Upon whom will the property of a female dying intestate devolve?
The answer to the first issue was cleared by the court that the daughter has the right on the self-acquired property and it won’t devolve through survivorship and this judgement would have a retrospective effect which means daughters who didn’t get the right on the self-acquired property before can appeal for the same. Before answering the latter question, let us understand the case of Arunacha Gounder. Here, the daughter got the self-acquired property from her father and she died intestate, so now the query was who will get that property?
So, it was held that when the daughter dies without any will and possesses the inherited property then the order of succession goes to the heirs of her father. And in this case, the rights on the property were given to the grandsons and granddaughters of the father. This answers one part of the latter question the other part is if the female possesses the property from the succession of her husband or father-in-law and die intestate then the property will go to whom? In this case, the rights on inherit property will transfer to the heirs of her husband or her father-in-law. These clearances were made based on section 15(2) of the Hindu Succession Act, 1956.
The act aims at giving equal rights to both the male and female of a family. It gives the right to daughters on both the ancestral and self-acquired property of her family. But the point subject to criticism here is that this act applies to Hindus, Buddhists, Jains and Sikhs only. There is no unified act for all communities and this is where India lacks. Women belonging to communities other than these also deserve gender equality. Don’t the Muslim, Christian or Parsi women need property rights? Patriarchy is at the roots of Indian society and the need to remove it is not just felt by selective communities. Of course, this amendment in the act has a positive impact on society but still, there is a section left with the inequality and their concerns are also needed to be addressed. Gender equality is needed to be maintained in India as a whole.
Indian society is trying to curb the problem of patriarchy for a long time as it is something that leads to unequal opportunities for females in society. And the Hindu Succession (Amendment) Act, 2005 is a step towards curbing this problem. But the confusing nature of this amendment is that whether it is retrospective or retroactive nature was cleared after 15 years, isn’t it too slow? The simple fact of declaring that it is retrospective could be done years ago. This slow working of the judicial system leaves people puzzled. The bills, the policies, the acts alone can’t make the change until or unless the public has understood them well. Because it’s the public only who registers the cases in the court, but when they would have the confusion, how will they decide whether the case is needed to be registered or not. Yes, of course, every law has its socio-legal drawback, but fast-tracking these small issues will drastically impact society. Also, there is no single body governing the rights of “all” women in society. There is a need for the same, this amendment applies to only certain particular communities not all. An exclusive body is required to govern women’s rights in various aspects.
Author(s) Name: Anjali Sharma (New Law College, Bharti Vidyapeeth, Pune)