“A women is the liability of her father when she is young, her husband when she is married and her son when she is old.“
The above quote is very well a depiction of the general attitude which is deeply embedded in the so called patriarchal society of today. Women are considered as inferior beings who cannot have an equal footing as that of their male counterparts. They have to face unfathomable challenges and hurdles in the way of getting what they actually deserve. A similar situation prevails in the case of the inheritance rights of women.
The society today is cherishing the fact that women have finally secured equal coparcenary rights as that of men and that it is a very good step on the part of the Indian judiciary to provide so. My question here lies, What is good in giving someone a thing which already belongs to them? Why do women have to struggle for rights which are so easily available to their male counterparts?
These questions however can never have a perfect answer in a society where nothing except parochial mindsets prevail and where each and every law is somehow structured to cater to the manly interests.
WHAT ARE COPARCENARY RIGHTS?
Coparcenary is a significant concept in a Hindu joint family’s property. Coparcenary is a subset of a Hindu joint family. Although a Hindu joint family may have many members, not all of them are coparceners. A coparcener is a term used to describe members of a Hindu joint family who are eligible to inherit the property of the Joint Family. A coparcenary is a form of joint-heirship.
CUSTOMARY LAWS ON HINDU COPARCENARY
Prior to the codification of Hindu law, people were governed by a variety of shastric and customary laws that differed by area and caste. As a result of this diversity of practise, numerous schools of thinking have emerged.
Among them, two well known school were:
- The Mitakshara School
- The Dayabhaga School
The Mitakshara School on coparcenary
Coparcenary rights emerge by birth in Mitakshara School, so coparcenary property is inherited as an unobstructed heritage (Apratibandha Daya). In practice, a four-generation lineal descendant of a shared ancestor in the male line is called a coparcener and is eligible to inherit and receive an absolute share of the undivided land. Women, on the other hand, lacked coparcenary privileges and were therefore unable to obtain ancestral land.
The Dayabhaga School on coparcenary
Unlike Mitakshara School, Dayabhaga School coparcenary rights emerge after the death of the family’s ultimate head, so coparcenary property is inherited as obstructed heritage (Sapratibandha Daya). The Dayabhaga School, which was a little more liberal in its thinking, saw no substantive distinction between men and women and extended coparcenary rights to them as well. As a result, females, such as widows and daughters, were able to inherit the ancestral land.
STATUS OF DAUGHTER’S INHERITANCE IN VARIOUS LEGESLATIONS
Hindu Law of Inheritance Act, 1929
The Hindu Law of Inheritance Act of 1929 was the first law regulating the intestate and unwilled succession of separate land. While the Act did not make any significant changes to the right of inheritance, it did bring females into the mainstream by granting them certain inheritance rights. As a result, it imposed a narrow limitation on the existing law of survivorship by granting inheritance rights to three female heirs: the son’s daughter, the daughter of the daughter, and the sister.
The Act did make some significant improvements to strengthen the status of daughters, but it did not go far enough to correct and eliminate shortcomings and create gender-neutral inheritance rights.
Hindu Succession Act, 1956
The post-independence period saw a significant change in existing laws governing Hindu inheritance. The Hindu Succession Act, 1956 was enacted to amend and regulate the laws governing intestate succession among Hindus, Buddhists, Jains, and Sikhs, as well as Arya Samaj and Brahmo Samaj followers.
However, the Mitakshara School’s principles were preserved in the newly enacted Hindu Succession Act of 1956 when it came to the coparcenary rights of daughters. Only male members of a joint Hindu family will be considered coparceners under Section 6 of the Act, and property will eventually devolve according to survivorship.
However, a proviso to Section 6 created an exception to protect the property rights of female heirs such as daughters, widows, mothers, and others who had a close relationship with the deceased male coparcener. It states that if a female relative survives the deceased member, as specified in Class I of Schedule I. Such female relatives will inherit the deceased member’s interest in the coparcenary estate.
Section 6 also notes that in order to give effect to inheritance, the deceased member’s share must be determined by establishing a legal fiction of notional division as of the date of death and then dividing the share equally among the surviving heirs. As a result, devolution will not occur according to the law of survivorship, but rather according to the rule of succession as specified in the Act’s provisions for testamentary or intestate succession.
Hindu Succession Act,2005
Section 6 of the Act was fully repealed in 2005 in order to insert provisions granting equal rights and responsibility to daughters in coparcenary property by birth, regardless of their marital status.
As a result, the amendment effectively repealed the law of survivorship and replaced it with the principle of testamentary and intestate succession. In the case of testamentary succession, everyone can plan the devolution scheme of their self-acquired property by their will, ensuring that assets are distributed according to the testator’s wishes. Intestate succession applies to the devolution of ancestral or joint family lands, as well as unwilled property.
The Hindu Succession (Amendment) Act, 2005 introduced four groups of heirs to give effect to intestate succession, with daughters granted equal status to sons under class 1 heirs. Tracing the history of coparcenary rights of daughters up to the recent verdict in Vineeta Sharma vs. Rakesh Sharma – iPleaders
However none of these laws specified whether they were to be applicable by birth or from the day of enactment of the particular law. This lead to ambiguity and the judgements being passed in a haphazard manner. Finally it was in the case of Vineeta Sharma vs. Rakesh Sharma & Others that this matter was brought out and was made lucid.
VINEETA SHARMA vs. RAKESH SHARMA & OTHERS: A LANDMARK JUDGEMENT
The main question was whether a daughter has coparcenary rights from birth or from the enactment date of the Amendment Act, and whether the father must be alive on September 9, 2015, to trigger the Amendment Act’s clause.
If the amended Section 6 would have retrospective or prospective effect is a question that needs to be answered. The Supreme Court has categorically stated that it will be neither retrospective nor prospective in nature, but rather retroactive, meaning that it will apply to a past case, namely the birth of the daughter.
As a result, the daughter’s coparcenary right would derive from her date of birth, not the date of the Amendment Act’s execution, regardless of whether the father was alive at the time of the Amendment Act’s execution or the daughter was born before the Amendment Act came into effect. The nature of a daughter’s coparcenary rights will be the same as that of sons, and she will have an equal share in the coparcenary property as sons
However, one exception to the rule is that if a partition suit was settled prior to 2005 by a registered deed, the case cannot be revived after it has been applied.
Clearly, various laws in India are based on a patriarchal mindset; succession laws are one example. Gender equality was far from a fact, despite being enshrined in the supreme law of the land as a constitutional right. Sons were still favoured over daughters when it came to coparcenary rights. The condition remained unchanged until the Hindu Succession (Amendment) Act of 2005, which gave daughters the same coparcenary rights as sons.
However, there was some confusion about the Amendment Act’s retroactive implementation. Furthermore, the Supreme Court’s opposing decision added to the already existing uncertainty.
Finally, in Vineeta Sharma v. Rakesh Sharma & Ors., the Supreme Court held that the Amendment Act has retroactive effect and that a daughter has the same coparcenary right as a son by birth. The decision is a significant step toward gender equality, but we still have a long way to go. When inheritance and succession rights are extended to the transgender community, we would have achieved real gender equality.