EQUAL COPARCENARY RIGHTS FOR WOMEN – BREAKING THE MYTH

Introduction

According to Merriam-webster dictionary coparcener means “a joint heir” and the first use of the term coparcener took place in the 15th century[1]. In other words this means any person who by birth has the right to inherit his/her ancestral property. It denotes the possession, interest, and unity of the title. Except for adoption, by any act of the parties, it cannot be created. It is derived from the practice and concept of the Hindu undivided family. And equality means ensuring everyone has the same opportunities without discriminating. But it is not always about treating the same for everyone but also treating people in such a way that ultimately the outcome becomes the same for everyone one way or another. Equality can only be ensured when we can be sure that everyone has access to all resources and opportunities and as well as valued and respected. Our constitution provides us the Right to Equality in Article 14 which means there will be no legal discrimination against race, case, religion, sex, and place of birth, and also ensures to provide equal rights to all citizens.

What are the different personal laws in different religions?

There are many religions and different religion has different laws regarding the coparcenary. In Muslim laws, the daughter’s share of the property is equal to half of one son’s that is the woman is only worth half of a man, although for this other reasons are given. And not only this, different rules apply to the wives and mothers in case of divorce or widowhood also. In Christian laws, daughters can inherit equal property with any of their brothers and sisters from their father’s estate or mothers’ under Indian Succession Act, 1925[2]. Under the Hindu Succession Act, 1956 after the 2015 landmark judgment in the Hindu laws it took a major turn by removing Section 6 to remove the confer and discrimination equal rights on daughters too. It was declared that daughters’ will have equal rights becoming a coparcener in her birthright manner just like a son. On September 9, 2005, the amendment came into force which consisting a provision that would not invalidate any disposition of any property by the will or partition that had been taken place prior to 2004, December 20 on the day on which amendment it was introduced in Rajya Sabha.[3] There are several differences between men’s coparcenary and women’s coparcenary rights as from the very beginning as we can see in all religions all men are given rights to the property considering them as a inherit from the father’s estate or mother’s estate property but in the case of women, they didn’t get equal rights like the sons.

Landmark judgments

Prakash v. Phulavati (2015)[4]: The only issue which has been raised in this batch of matters is whether the Hindu Succession (Amendment) Act, 2005 (‘the Amendment Act’) will have a retrospective effect.It was held that the rights under the amendment are applicable to living daughters of living coparceners as of 9th September 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December 2004 as per the law applicable prior to the said Page 17 Civil Appeal No.7217 of 2013 etc. [5]date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.[6]This was posted before a three-judge Bench which was headed by Justice Arun Mishra.

Lokmani v. Mahadevamma (2016)[7]: In Lokmani v. Mahadevamma case, it was stated by the court which is a high court that the amendment of HAS Section 6 is to be given as a retrospective effect because many proceedings were pending and as well as appeals were left to be decided so as per the amended provision the inequality has been removed from the amendment Section 6 (5) of HAS from the definition of partition mentioned in the amendment.

Danamma @ Suman Surpur vs Amar on 1 February, 2018[8]: In this case, it was inferred that coparcenary rights were birthrights. The Supreme Court has now set forth the idea that coparcenary rights are birthrights free from limitations imposed by the dates of any legal notifications. As a natural corollary, property inheritance rights apply to all women retrospectively from 1956, the year of the codification of the Mitakshara laws as the Hindu Succession Act.[9] There are many more landmark cases for the different religions. Here this landmark case is under Hindu law more precisely under the Hindu Succession Act, 1956.

Conclusion

Nothing has been easy for the women we all can see from the history of India and today’s situation also. Without any exception rights to the coparcenary property for the women also had been difficult. More laws should be made in all religions to support and have the equal right to the properties. Also, new rules should be made to support the existing laws as the right to possession does not make it easy for the women who are already married or who stay in their ancestral homes. Here the laws also may be more convenient for the urban settings than rural context. It is more difficult where the property is mostly agricultural land. Women are also generally sacred of the long litigation time period and also sometimes they don’t even have the monetary support that they can afford extending and continuing their cases. Hence most of the cases get closed or as a result. Another problem comes with providing relating documents. Mostly the important documents stay with the brothers and hence cannot provide the documents in the favor of them. In patriarchy dominated world, it is uncertain even if the heirs of the male-dominant will share the documents or information regarding a property for the case in the favor of the female heir.

Author(s) Name: Eshna Ray (Amity University)

References:

[1]  Meeriam-webster, https://www.merriam-webster.com/dictionary/coparcener

[2]  Sri S. Vasu Dev, Junior Civil Judge, SUCCESSION UNDER INDIAN SUCCESSION ACT, 1925 IN RESPECT OF CHRISTIANS, districts.ecourts.gov.in/sites/default/files/team%20ii.pdf

[3] Vineeta Sharma v. Rakesh Sharma & Ors., diary number 32601 of 2018, main.sci.gov.in/supremecourt/2018/32601/32601_2018_33_1501_23387_Judgement_11-Aug-2020.pdf

[4] Prakash v. Phulavati (2015),   CIVIL APPEAL NO.7217 OF 2013,  https://indiankanoon.org/doc/143363828/

[5] Prakash v. Phulavati (2015),   CIVIL APPEAL NO.7217 OF 2013,   https://indiankanoon.org/doc/143363828/

[6]Prakash v. Phulavati (2015),   CIVIL APPEAL NO.7217 OF 2013,   https://indiankanoon.org/doc/143363828/

[7]  Lokmani v. Mahadevamma (2016), Petition(s) for Special Leave to Appeal (C) No(s).    684/2016

   https://indiankanoon.org/doc/55762164/

[8]Danamma @ Suman Surpur vs Amar on 1 February, 2018,  (2018), CIVIL APPEAL NOS. 188-189 OF 2018 (@SLP(C) Nos. 10638-10639 of 2013),  https://indiankanoon.org/doc/88759498/

[9] Hena Singh and Swati Parashar, “Supreme Court order on coparcenary rights is enormously welcome”, Indian Express (August 20, 2020), 6, https://indianexpress.com/article/opinion/columns/women-right-to-property-gender-equality-supreme-court-6561773/