This article is written by Raunak Sood, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Ruchika Mohapatra (Associate, LawSikho) and Indrasish Majumder (Intern at LawSikho).

This article has been published by Abanti Bose.

Introduction

When it comes down to the classical law on the rights of a Hindu  female, the ancient texts had quite an amount of ambiguous definitions of the rights of a Hindu woman, wherein some of the texts put  arbitrary and unreasonable restrictions and some of the texts induced  a position where a woman was seen as a property of an man, albeit, some of the Dharmashastras (Hindu Ancient Text), have an effect of bestowing Hindu women with the right to own a separate property, but chastity was a limiting factor to exercising such rights. 

On this front, judicial decisions were limited to some precedents but all these precedents were not able to lay out a general rule, but still discrimination against women was like a deep-rooted practice in the society. The legislature was quick to look into this discrimination against women and this agility could be seen in the form of legislations passed within the ambit of last 200 years.

The British-India was the first to take a leap of faith in this direction while enacting the Caste Disabilities Removal Act, 1850. Classical Hindu law concepts like, Hindu Undivided Family, coparcenary, Karta, doctrine of survivorship etc., were the ones which placed a limit on the right of women to receive maintenance from the joint family property. The legislature was successful in seeing this plight of women and then enacted various laws in the form of Hindu Women’s Right to Property Act, 1937, Hindu Succession Act, 1956, Hindu succession Amendment Act (2005) to alleviate their condition., These were some of the legislations which were able to protect the inheritance and property rights of Hindu females. Law Commission’s 174^th Report, during the year 2000 recommended amendments to the Hindu Succession Act, 1956 ( hereinafter referred as HSA, 1956) and among the suggested measures, it was recommended to remove the discrimination against women and therefore there was an amendment to Section 6 of the HSA, 1956. 

A contention to be noted is that the conceptual ramifications of coparcenary are different in English law and Indian law because English law treats coparcenary as a creation of law by an act of the stakeholders involved in the transaction of coparcenary, on the contrary, Indian law treats coparcenary as a personal law which cannot be created by the respective stakeholders. 

The position of women has improved over time because of the changes introduced by the legislature. The present article aims at seeing how the changes were introduced, the effect of the said legislations, the judicial interpretations and the author has also given some suggestions with respect to the improvement of the said laws. The author has also presented his views on gender equality in the family and argued on strengthening the position of women within the joint family system. 

Coparcenary and changes introduced in the classical law of coparcenary and hindu joint family

Coparcenary is a concept of Hindu jurisprudence wherein a few members of a joint family known as coparceners get a right in the joint family property by virtue of being born in the said joint family. Prior to the enactment of the Hindu Succession Act 1956, there was no uniformity in the laws governing the succession of the property whereas customary laws prevalent at that point of time under the Hindu law were the Dayabhaga and Mitakshara schools wherein the Mitakshara school followed the philosophy of law where the Hindu Undivided Family consisted of the common ancestor and his three lineal male descendants, together with wives, widows and unmarried daughters and the concept of coparcenary was limited to the father and his three linear male descendants who generated an interest in the Joint family property by virtue of their birth. The devolution of property took place via the doctrine of survivorship within the coparcenary which was set up within the joint family system whereas there was a complete exclusion of women from interest by birth in the coparcenary property and only the male members had this privilege which was discriminatory to women. Females were given the right to sustenance through the joint family property but the ownership of the said property was not given to the said female who was a part of the joint family property. The Dayabhaga school recognized females as heirs and was not discriminatory as compared to the Mitakshara school of law.

In the year 1929, the Hindu Law of Inheritance Act was enacted and it was one of the first legislations which took the plight of women into consideration. It bestowed inheritance rights upon three female heirs- the son’s daughter, daughter’s daughter and sister. Another legislation that tried to remove the said discrimination against women was the Hindu Women’s Right to Property Act, 1937 wherein it was envisaged that the share of a widow is equivalent to the share of a son and this Act was uniformly applicable to all schools of Hindu Law. But it was observed that there were some limitations to this act, where the flaw was that there were no inheritance rights according to the daughter and the widow was entitled to a limited share in the property of the deceased. The Act of 1929 was a step in the right direction but was far away from granting the stature of equality to women.

The Constitution of India came into force in the year 1950 wherein Articles 14, 15(2) &(3), 16 formed the part of fundamental rights, and it rightly envisaged in Article 39(d) of the Directive Principles of State Policy the promotion of gender equality and equal pay for equal work for both men and women. But still, women continued to be neglected and discriminated against on grounds of their gender which they acquired at birth and such violation of the rights of women were continued by the personal laws. 

In the year 1956, the legislature enacted the Hindu Succession Act which envisaged a uniform law of succession to ensure equality of inheritance rights between the male and the female heir, the said law applied to Hindus, Buddhists, Sikhs, and Jains. The major reform brought about by this law can be said to be that it gave absolute ownership to female heirs, hence the equality between men and women was being promoted by the said HSA, 1956. It is hereby contended that this Act also contained some defects which were later cured by an amendment to this Act.

Changes brought into effect by the Hindu Succession Act, 1956

The Hindu Succession Act was enacted in the year 1956, which laid down the general rules of succession of property wherein  Hindus were divided into 4 classes. This Act is credited with giving women absolute ownership of property and this concept of absolute ownership was penned down in Section 14(1) of the said Act. Section 14 was a step in the right direction in context to the equality of sexes, therein the status of women was elevated from a lower position to an equal footing within the patriarchal society. The scope of Section 14 includes not only wives but other female Hindus as well. The constitutional mandate of Article 14 was duly recognized by Section 14 of the HSA 1956 because the condition of limited ownership was removed. Section 6 of this Act duly recognized the rule of devolution of survivorship, but a special exception was made for Hindu females in Class I of the schedule that even a female relative was allowed to get a claim in the assets which was left behind by the deceased. 

The main criticism of the HSA 1956, is that the concept of the Mitakshara coparcenary system has its traces in this Act. Even though the first step to ensure gender equality was taken by enacting HSA 1956, still the male heir got an interest in the coparcenary property the moment he was born and at the same time, the female was deprived of this right by this Act. Hence, the HUF was still governed by the male members at the same time. Per the explanation given in Section 6, a notional partition would take place between the father and the son during the lifetime of the father, and on the death of the father his share is divided between the son and the daughter. Hence, the daughter got a lesser share as compared to the son because the son got three fourth share and the daughter got one-third share, the specs of discrimination can be seen in the HSA 1956 which violates the spirit of Article 14 of the Constitution.

Another archaic and discriminatory position that can be noticed in this Act is that male descent of inheritance is up to three degrees and the female line of descent is up to one degree, so again it is difficult to proclaim that HSA, 1956 is not discriminatory in nature. Section 23 of this Act gives the daughter a right to stay in the joint family house until she is married but she was not given the right to ask for partition and was left at the mercy of the male members. Another provision of HSA 1956 which can be made an illustration of gender inequality is Section 15 of the Act which states that if a female died intestate with no sons or daughters to her, the succession would then be taken by the heirs of the husband and if the heirs of the husband were absent only then the estate of the deceased would go to the parents of the deceased female. 

Therefore, a broad enough conclusion can be drawn that the discriminatory methods of succession mentioned in the Mitakshara system have their roots in HSA 1956 also there was no restrain in the power of testamentary succession which deprived daughters of their rights. There was a brief distinction between a married and unmarried daughter which was embedded in the scheme of HSA 1956 which can trace its origin to the patriarchal notions of the society.

Plight of hindu females after the enactment of Hindu Succession (Amendment) Act, 2005

The Hindu Succession Amendment Act was based upon the Law Commission’s 174^th report wherein a set of amendments were suggested to the legislature so that they could do away with the discrimination which was meted to women in HSA 1956. Section 6 of HSA 1956 was amended where it was talked about the devolution of interest in the coparcener property on the grounds that now even a daughter would be a coparcener in the joint family property by virtue of her birth. It is now a settled law because of the Hindu Succession Amendment Act, 2005 that a daughter now has the same liabilities as a son has in the joint family property because she is deemed as a coparcener by virtue of her birth. Herein it means that the daughter has the same rights and liabilities as a son and a general statement which can be drawn is that Hindu Mitakshara coparcener now consists of male and female coparceners.

The amendment to the Hindu Succession Act, 2005 has been path-breaking in achieving gender equality because daughters were made coparceners which symbolizes the economic and cultural enhancement in the footing of women. The daughters who are born in joint families are now economically secure because they will get a right to the family property. In the case of breakdown of the marriage of the daughter, she has the option to return to the family home, and get a share in the notional partition and an equal share in the property of her father therefore instead of getting one-third of the property she will get an equal share with her fellow male sibling.

Another significant achievement of the Hindu Succession Amendment Act, 2005 is that the repeal of Section 4(2) which provided a forum for the gender-biased state laws to take proficiency in matters of devolution of tenancy rights in agricultural land because of which the property rights were more gender-biased because male descendants were given a preference in the said State laws whereas the females were given limited ownership. Such a measure was immensely helpful for women belonging to agricultural families because now they had a right to inherit their father’s property, this being iterated it is also contended that Section 23 was abrogated by this amendment act wherein Section 23 did not give residential rights to the daughters who were married until the said daughters were separated, deserted or widowed, therefore a right to reside and seek partition was provided to the daughters, hence the daughters were now getting the benefit of abrogation of Section 23 and Section 24 on the ground of getting inheritance rights for a widow of a predeceased son.

Even though the 2005 amendment provided equal rights to women, some other questions like daughters becoming Karta of the family remained unanswered. Daughters are said to be vulnerable to the influence of their husbands and this discriminatory and devoid argument was used to deny women the right to become a Karta. Daughters being made the coparceners will only benefit women who are born in families with lots of ancestral property, as this rule of “females as coparceners” will not apply to those women whose parents have self-acquired the property, therefore a parent who is in favor of his son succeeding his self-acquired estate may draft a will in the favor of his son, wherein again a daughter’s position as a coparcener is compromised. Even though the legislature is trying to rush in equality between the male and female heirs but according to the opinion of the researcher, this concept of inheritance by birth needs to be done away therein different rules with regard to the succession of self-acquired property should be made by impeding the testamentary rights under Section 30 of the HSA because, in other religions like Islam, daughters have a right to their parents self – acquired property.

Therefore, it is concluded that only granting coparcenary rights to daughters is not a sufficient measure, but laws need to be drafted about the self-acquired property. The legislature should instead move towards abolishing the Mitakshara school of law and bringing in uniformity in the succession law. A goal should be set to bring in uniformity in the Hindu Law.

Conclusion and suggestions

It is hereby concluded that HSA 1956 has brought some significant changes in the succession law, some of these changes are:

1. Position of women– The 2005 amendment, by making daughter a coparcener by virtue of her birth has put her at an equal footing with that of sons, henceforth a daughter is considered as an equal member of her family and is quite empowered in the sphere of her birth family. In the case of Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik, the contention by one of the parties to the matter that daughters born after 2005 were entitled to the coparcenary property and not those daughters who were born before 2005 was rejected by the court on the ground that the legislature had intended that those daughters born before 2005 were entitled to entitled to joint family property only after the 2005 amendment came into force. 
2. Suggestions– It is hereby suggested that people should bring a change in their mentality in regards to the concept of gender equality and therefore there is a need to educate people on this aspect, the legislative intent behind the 2005 amendment will come to a successful end only if the education of masses is carried out on the topic of gender equality. From a legal point of view it is suggested that the legislature should consider amendments to Section 30 of the HSA Amendment Act 2005, wherein the testator rights of the deceased male should be kept in check because it is commonly seen in the society that separate property or self-acquired property of the father is generally given to the son by testamentary succession which is another form of escaping the legislative intent behind the Hindu Succession Act, 2005, hence an amendment which makes it compulsory for the father that he should give a share to the daughter or his immediate female successor some form of property in the testamentary succession which is being carried out in the favor of his son. It is also recommended that the society should be made aware of the economical benefits that a woman can provide to the family provided that she is treated equally on par with her male counterpart. 

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