Tracing The Rights Of Hindu Daughters On Father’s Property

Daughters were not treated co-equally at par with son counterparts in their family since the Ancient Era. They are treated as burden because of the dowries required to marry them off. Parents treat son as their life support system and as a result of this, there is sharp decline in Sex Ratio in 2011. This discrimination is not just limited to India’s uneducated or low-income families but also common among wealthy households as studied by the Center for Global Health Research in 2011[1]. Likewise when it comes to rights of hindu daughters on father’s property the scenario is also not so different. Through this article I would like to trace how the rights of hindu daughters on father’s property have been modified and progressed with the society.

INTRODUCTION

Hindu Law of Dharma is influenced by the Theological Tenets of the Vedic Aryans. The legislation or constitutional provisions from time to time keep on modifying and abrogating various provision what is left still prevails. The basic Hindu Law emanates from Vedas and past Shrutis and Smritis. In Ancient period, justice used to be administered by the kings and emperors resolving conflicts. Hindu Law is progressive in nature built over a period of time. There are two mains schools governing Hindu Law i.e. Mitakshara and Dayabhaga. Mitakshara has further been sub divided into four schools- Benaras, Mithila, Bombay and Dravida or Madras school. The application of this Law is region-wise due to the Reorganisation of States in 1956. Benares school practically governs the whole of Northern India.

Besides Customs, Equity, Justice and Good Conscience; judicial decisions also acted as a source of law to govern the Hindu Law. Slowly the necessity was felt for the codification of law. In particular women rights were taken care of and attempts were made to remove anomalies and unscrupulous practices. After Independence, the codified law has been amended from time to time as a constitutional imperative to equality of status to women and to have an egalitarian society where all can enjoy the fruits of it.

The latest attempt has been made by way of amending the Hindu Succession Act concerning rights of daughter to be a coparcener in Mitakshara Coparcenary and has been given the right equal to that of a son.

Bentham’s Utilitarianism

According to Jeremy Bentham’s Theory of Utilitarianism morality and legislation should be organised so to provide the greatest happiness to the greatest number[2]. He stressed that all actions should be measured according to the contribution they made to happiness of the society. The only object of government ought to be the greatest possible happiness of the community. Property is nothing but an expectation deriving advantage from thing we used to possess. Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases. Bentham’s notion of equality is that the twinned principles of pain and pleasure are the universal bases of morality from which the principle of utility derives. According to him all individuals should be treated equally so that they enjoy maximum happiness. So if we apply his principle then there should equal rights to daughters in family.

1956 to 2005

Initially the inheritance of property among Hindus was governed by the principles enshrined in Mitakshara and Dayabhaga treaties. Under these provisions greater property rights were available exclusively to male members of the family. The women effectively did not have property rights.

The above deep-rooted discrimination against women was curbed when the Hindu Succession Act, 1956  was brought into force. Before this legislation, the immovable properties were considered as coparcenary properties, wherein male heirs had only the right to property. The right was acquired in the coparcenary property by male heir by virtue of his birth. This share may be varied with birth and death of male member. This rule is commonly known as the rule of survivorship. Women were not coparcener but the member of the Hindu Undivided Family. They incur their right in property only after the death of related male member to them. Prior to this act, Hindu Women’s Right to Property Act, 1937 sought to improve the legal position of women being the survivors of male Hindus under the Laws of succession and joint family.

2005 to 2015

The rule of survivorship got abrogated after the Hindu Succession (Amendment) Act, 2005. Now there are two types of succession one is testamentary succession i.e. when a person dies after writing a will then the interest in the property will be governed by it and the other is intestate succession which is defined under the Act. The amendment of 2005 is proposed 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. Daughters are considered as coparcenary, they have right by birth in property as a coparcenary and have equal liability in father’s property as well.

State Amendments

Five states in India have amended the law relating to coparcenary property. Four states viz Maharashtra, Andhra Pradesh, Tamil Nadu and Karnataka have conferred upon daughters a birthright in coparcenary property. While in Kerala there is abolition of the concept of joint family system among Hindus.

2016

Here comes the judgment of Prakash vs. Phulvati[3] given by two-judge bench of J. A.K. Dave and J. A.K. Goel where the suit was contested mainly with the plea that the plaintiff i.e. Phulvati could claim share only in the self-acquired property of her deceased father and not in the entire property. During the pendency of the suit, the plaintiff amended the plaint so as to claim share as per the Amended Act 39 of 2005. The normal rule is that a proviso excepts something out of the enactment which would otherwise be within the purview of the enactment but if the text, context or purpose so require a different rule may apply. Similarly, an explanation is to explain the meaning of section but if the language or purpose so require, the explanation can be so interpreted. Rules of interpretation of statutes are useful servants but difficult masters. Object of interpretation is to discover the intention of legislature. Therefore accordingly we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 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 date remains unaffected. Any transaction of partition effected thereafter will be governed by the explanation.

2018

Here comes the judgment of Danamma vs Amar[4] given by two-judge bench of A.K.Sikri J. and A.Bhushan J., here the appellants daughters were not taken as the coparceners in the said joint family as they were born prior to the enactment of Hindu Succession Act, 1956. It was also pleaded that they were married daughters and at the time of their marriage, they had received gold and money and had hence relinquished their share. The appellants claimed that they were also entitled to their share in the property. Therefore for the purpose of finding out undivided interest of deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenery property which he could have got in notional partition. The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughter of a coparcener. The section stipulates that daughter would be coparcener from her birth, and would have the same rights and liabilities as that of son. the daughter would hold property to which she is entitled as coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. The right is inherent and can be availed of by any coparcener, now even a daughter who is coparcener.

2020

A larger bench in Vineeta Sharma vs. Rakesh Sharma[5] have referred to the conflicting verdicts rendered in two division bench judgments of 2016 and 2018. Where it is stated that the provisions contained in substituted Section 6 of Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be alive as on 9.9.2005. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir of class I as specified in the schedule of the Act or male relative of such female. And hence the daughters cannot be deprived of right of equality conferred upon them by Section 6.

Conclusion

As Law starts progressing with the pace of society for the betterment of it. It will create new rights and new opportunities for all. Likewise, the codification of Hindu Law fills the vacuum earlier created due to different customs and traditions. The evolution of rights of daughter on father’s property through various judicial decisions and amendments shows that daughters too have equal rights and liabilities on father’s property. These types of judicial interventions show that daughters in India are on equal footing with sons in every sphere of life. It can also be seen as now women officers in Indian Army granted permanent commission, breaking of stereotypes even in other judgment like in Sabarimala case. At last, I would end with the quote of John Steinbeck, Travels with Charley: In Search of America

“ And finally, in our time a beard is the one thing that a woman cannot do better than a man, or if she can her success is assured only in a circus.”

[1] http://cghr.org/wordpress/wp-content/uploads/Trends-in-selective-abortions-of-girls-in-India-2011.pdf

[2] Jeremy Bentham : Greatest Happiness Principle -Utilitarianism

[3] Civil Appeal No. 7217 of 2013 Prakash vs. Phulvati 2016 2 SCC 36

[4] Civil Appeal Nos. 188-189 of 2018 Danamma vs. Amar 2018 3 SCC 343

[5] Civil Appeal No. 32601 of 2018 Vineeta Sharma vs. Rakesh Sharma 2019 6 SCC 162

This article has been written by Yashu Rustagi, a law student studying at Law Centre 2, Faculty of Law, University of Delhi.

Also Read – Succession Of Property: Property Which Connects Generations

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