Coparcenary rights of females under Hindu law

Anonymous

Editor’s note:

This project will essentially deal with the rights of women as coparceners. Prior to 2005, the system of coparcenary consisted exclusively of male members. The scenario changed largely after the implementation of the Hindu Succession (Amendment) Act, 2005, eliminating the gender based discrimination and the difficulty it posed for women members in a joint family. A daughter is now capable of acquiring an interest in the coparcenary property, demand a partition of the same and dispose it through a testamentary disposition.

Coparcenary

The primary purpose of coparcenary was spiritual in nature. A coparcener is a person who can offer funeral cake to his father. This capability to offer spiritual salvation was with the son, grandson and great-grandson and as a consequence of it they were conferred a right by birth in the property of the father.[1] The system of coparcenary before 2005 amendment consisted of only male members within a joint family. Under the classical law, coparcenary consisted of the senior most male called last holder and his lineal male descendants down to the three generations which includes his son, grandson and great-grandson, these members have a right by birth in the joint Hindu family property and have a right to ask for partition of the same.[2]

Historical background

The Constitution of India grants equality to all persons irrespective of religion, race, cast, sex or place of birth. The Constitution provides for gender equality as part of Fundamental Rights which are enforceable by law. The State grants not only grants equality to women but also empowers the state to take positive discrimination in favour of women.[3] However, even after more than sixty four years of enforcement of Constitution gender equality has not been achieved in its true sense. Discrimination against women can be seen not just socially but also in the laws made by the legislature itself. One such example is in the relation to women rights of property. Post-independence the laws relating to intestate succession in Hindus are governed by the Hindu Succession Act, 1956. This Act was enacted to lay down a uniform system of inheritance and also to ensure equality between sons and daughters.[4] However, in respect to create gender equality this act failed miserably. For instance, this Act provided for coparcenary rights only in favour of male members.

Section 6 of the Hindu Succession Act, 1956 states that- “When a Hindu male dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act”.[5] Since a woman could not be a coparcener, she was not entitled to a share in the ancestral property by birth.[6] However, there is an exception to this rule which also serves as another gender bias. The exception is that the interest of the deceased in the Mitakshara coparcenary shall devolve by intestate succession if the deceased had left surviving a female relative specified in the Class I of the Schedule or a male relative specified in that class, who claims through such female relative.[7] In order to understand how this provision operates as gender bias, it is necessary to look at Section 8 of the Hindu Succession Act, 1956 which deals with the general rules of intestate succession. As per Section 8, the property of a male Hindu dying intestate shall devolve firstly, upon the heirs, being the relatives specified in Class I of the Schedule. However, there are only four primary heirs in the Schedule to Class I, namely, mother, widow, son and daughter.[8] The principle of representation goes up to two degrees in the male line of descent, but in the female line of descent it goes only up to one degree. “Accordingly, the son’s son’s son and son’s son’s daughter gets a share but a daughter’s daughter’s son and daughter’s daughter’s daughter do not get anything. A further infirmity is that widows of a pre deceased son and grandson are Class I heirs, but the husbands of a deceased daughter or granddaughter are not heirs”.[9]

It is evident from the analysis of the above sections that the Hindu Succession Act, 1956 by retention of the Mitakshara coparcenary with only males as coparceners violates the Constitutional provisions guaranteeing equality to women. The exclusion of women from coparcenary just on the basis of sex is unfair and unjust. To create an equal society, women should be given equal property rights so that their basic economic needs can be taken care of which will in long run help in creating a balanced society.

Keeping all these factors into consideration, the Hindu (Amendment) Succession Act, 2005 was enacted. One of the primary objective of this Act as stated in the Parliamentary Standing Committee Report was to “remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have”.[10]

Post Hindu Succession (Amendment) Act 2005

This act seeks to enlarge the rights of a daughter, married and unmarried both by giving them equal coparcenary rights as that of son in joint family property. It also seeks to bring the female line of descent at par with the male level of descent.[11] The Section 6 of the Hindu Succession Act 1956 has been amended as stated below.

“In a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-

  1. by birth become a coparcener in her own right in the same manner as the son;

  2. have the same rights in the coparcenary property as she would have had if she had been a son;

  3. be subject to the same liabilities in respect of the 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”.[12]

Also, the Act abolishes the doctrine of survivorship in case of male coparceners who die as members of undivided Mitakshara conspiracy.

The Amendment thus makes a significant change by making daughters as coparceners. The traditional patriarchal nature of the coparcenary has changed radically. This change has fundamentally altered the nature of Mitakshara coparcenary. The amendments in Section 6 seek to do away with the discrimination against daughter, as her rights and liabilities are the same as that of a son. This also implies that a daughter is now capable of acquiring an interest in the coparcenary property, demand a partition of the same and dispose it through a testamentary disposition. The new changes allow daughters to start joint family herself. In short, all the prerogatives and uniqueness of a son’s position in the family is available to a daughter as well.[13]

The marital status of a daughter is immaterial as the Act does not impose any reference or limitation with respect to her marital status. The Amendment simply states that a daughter of a coparcener is included as a coparcener herself.

Constitutional Validity of S. 6(1)(c) of the Hindu Succession (Amendment) Act, 2005

An unintended conflict emerged between this act and the acts of various state governments. Prior to the enactment of the Hindu Succession (Amendment) Act, 2005 four states had amended the Hindu Succession Act and had introduced unmarried daughters as coparceners. In the state of Andhra Pradesh, the amendment came into force with effect from 5th September 1985. Since this date the daughter became a coparcener and consequently all the rights of a coparcener also vested in her.[14] However, the Central enactment which came into effect from 2005 expressly provided that the Act will not have retrospective effect which means that a daughter cannot invoke her coparcenary rights prior to the commencement of the Hindu Succession Amendment Act. This issue rose up before the Karnataka High Court in the case of R. Kantha v. Union of India[15], the constitutional validity of the proviso to Sec. 6(1) (c) which takes away the right from the daughters to reopen petitions effected before 2004 that was expressly vested in them by the Karnataka (Hindu Succession Amendment) Act, 2004 was challenged. The court held that this section was ultra vires the provisions of the Constitution of India and thus void, as it discriminated between the rights of coparceners on grounds of sex.

Edited by Neerja Gurnani

[1] Family Law Lectures Family Law II. Lexis Nexis Butterworths Wadhwa Nagpur, 3rd edition, poonam pradhan saxena

[2] Id

[3] 174th Report on “Property Rights of Women: Proposed Reforms under the Hindu Law”, Law Commission of India, May 2000

[4] Id

[5] Hindu Succession Act, 1956

[6] 174th Report on “Property Rights of Women: Proposed Reforms under the Hindu Law”, Law Commission of India, May 2000

[7] Section 6, Hindu Succession Act, 1956

[8] Schedule I, Hindu Succession Act, 1956

[9] 174th Report on “Property Rights of Women: Proposed Reforms under the Hindu Law”, Law Commission of India, May 2000

[10] http://www.hrln.org/admin/issue/subpdf/Report_of_the_Parliamentary_Standing_Committee_05May.pdf

[11] http://www.academia.edu/1117933/Women_Property_Rights_Under_Hindu_Law

[12] Hindu Succession (Amendment) Act 2012

[13] Family Law Lectures Family Law II. Lexis Nexis Butterworths Wadhwa Nagpur, 3rd edition, poonam pradhan saxena

[14] Id

[15] AIR 2010 Karn 27

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