Law Finder Live

Vineeta Sharma vs. Rakesh Sharma: Clearing The Last Hurdle Towards Gender Equality In Hindu Law

"What you have taken, Has been from here, What you gave has been given here

What belongs to you today belonged to someone yesterday, and will be someone else's tomorrow

Change is the Law of The Universe"

Bhagwat Gita

It is a lesser known fact that the provisions regarding succession in the Hindu Code Bill, as originally framed by the B.N. Rau Committee and piloted by Dr. Ambedkar, was for abolishing the Mitakshara coparcenary with its concept of survivorship and the son's right by birth in a joint family property and substituting it with the principle of inheritance by succession but the final bill was passed with major changes due to the opposition of the elected representatives. To this a disappointed Dr. Ambedkar reportedly said:

"It was not a compromise. My enemies combined with my enthusiastic supporters and my enemies thought that they might dam the Bill by making it appear worse than it was"

Subsequently in 2005 the Legislature through a progressive amendment to the Hindu Succession Act 1956, brought in the much awaited change envisioned by him by granting coparcenary rights to daughters. Statement of Object and Reasons of the Hindu Succession (Amendment) Act, 2005 provide clarity on the 2005 Amendment Act:

"STATEMENT OF OBJECTS AND REASONS

1. The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women's property. However, it does not interfere with the special rights ofthose who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.

2. Section 6 of the Act deals with devolution of interest of a male hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakashara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

3. It 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. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.

4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on"Property Rights of Women: Proposed Reform under the Hindu Law".

5. The Bill seeks to achieve the above objects.

NEW DELHI;

The 16th December, 2004."

In the Mitakshara School, the allocation of parental property is based on the rule of possession by birth. Therefore in Mitakshara School, sons had an exclusive right by birth in the joint family property. Ancestral property was traditionally governed by the Mitakshara school, wherein property descends only through the male line as only the male members of a joint Hindu family have an interest by birth in the joint or coparcenary property. The Mitakshara coparcenary law not only contributed to discrimination on the ground of gender and negated the fundamental right of equality guaranteed by the Constitution of India.

Although the legislative intent of the Amending Act was clear however as is the case with any other amendment in a Statute, this instant amendment was also a subject matter of intense legal debate and resulted in various High Courts interpreting the same in divergence.

The Hon'ble Apex Court in the case of Parkash & others v. Phulavati others 2016(2) SCC 36 laid down that the provisions of the amendment are applicable prospectively to living daughters of living coparceners as on 9.9.2005, irrespective of when such daughters are born. However, in Danamma @ Suman Surpur v. Amar 2018(3) SCC 343 the Court granted the rights in a coparcenary to a daughter of a coparcener who had died much before 9.9.2005. This created a divergence of legal -opinion and the matter came to be referred to a larger bench for resolution in the case titled Civil Appeal No. 32601/2018 Vineeta Sharma v. Rakesh Sharma. The Hon'ble Supreme decided the reference in a landmark judgment pronounced on 11.8.2020. The bench after discussing the law of creation of Mitakshara coparcenary and the nature of the rights of the members of a coparcenary under the Hindu law proceeded to hold the right of the daughters under the Amending Act of 2005 to be retroactive rather prospective and distinct to retrospective.

The court in the lengthy and effortful judgment noticed detailed arguments raised against such an interpretation. It was unsuccessfully contended that a legal fiction created in law cannot be stretched beyond the purpose for which the fiction has been created. It was argued that the declaration by the law that the daughter of a coparcener has certain entitlements and be subject to certain liabilities is prospective. The daughter is treated as a coparcener under the Amendment Act and not because of the daughter's birth prior to the amendment. If the daughter is treated as coparcener at any point of time in the past before the amendment, the same will bring in enormous uncertainty in the working of the law. It can be stated that the Parliament has not intended to scramble the unscrambled egg or to resurrect the past. Having regard to the plain language and future perfect tense "shall have the same rights," the only conclusion is that the daughters who are included in the coparcenary will have the same rights after coming into force of the Amendment Act. It was contended that "Daughter of a coparcener" means the daughter of an alive person and has the status of a coparcener on the date of commencement of the Amendment Act. The Central Amendment has not made a distinction based on the daughter's marital status expressly but has made it evident by the use of the expression 'joint Hindu family' and 'daughter of a coparcener.' The provisions should be read to exclude married daughters. The provisions of section 6, as amended, are prospective. It was not intended to unsettle the settled affairs.

However, the court repelling the above contentions decisively held that what was significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6.

It was observed that the legislative history of section 6 throws light in understanding the provision before the Act of 1956 was enacted. Women were not having any interest in the coparcenary properties, and on the demise of a coparcener, the share of the deceased coparcener devolved on the surviving coparceners. Hindu Succession Act made inroads into the system. It provided that on the demise of a coparcener, his interest in the coparcenary properties would not devolve on other coparceners by survivorship, and the share of the deceased coparcener was to be ascertained by way of notional partition as on the date of death. To that limited extent, the women did not become a coparcener, but they could inherit the property under the unamended provision. The 174th Report of Law Commission of India recommended the adoption of the Kerala Model, and the amendments were effected in Kerala, Andhra Pradesh, Karnataka, and in several States, giving coparcenary rights to the daughters.

The essential condition for conferring the status of coparcener on the daughter is that there should be a coparcenary on the date of coming into force of the Act in 2005. If the coparcenary was disrupted by the act of the parties or by the death of parties, in partition or sale, the daughter could not get the status of a coparcener in coparcenary. The status conferred cannot affect the past transactions of alienation, disposition, partition - oral or written. Section 6 provides parity of rights in coparcenary property among male and female members of a joint Hindu family on and from 9.9.2005. The declaration in section 6 that the daughter of a coparcener shall have the same rights and liabilities as she would have been a son is unambiguous and unequivocal.

The court further observed that uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005. It is not to resurrect the past but recognising an antecedent event for conferral of rights, prospectively.

While carving out the above distinction the court held that the prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. It is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to section 6(1) read with section 6(5).

While distinguishing Parkash & others v. Phulavati others 2016(2) SCC 36, the court observed as under:

"75. A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of "living coparcener", as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living on 9.9.2005. In substituted section 6, the expression 'daughter of a living coparcener' has not been used. Right is given under section 6(1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in section 6(1(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in section 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part."

On Danamma @ Suman Surpur v. Amar 2018(3) SCC 343 which was partly overruled, it was noticed as follows:

"78. In Danamma, it is pertinent to mention that Gurulingappa, propositus of a Hindu joint family and the father of living daughter coparcener died in 2001, before the Amendment Act, 2005 came into force, leaving behind two daughters, son and a widow. Daughters were given equal rights by this Court. We agree with certain observations made in paras 23 and 25 to 27 (supra) but find ourselves unable to agree with the earlier part approving the decision in Prakash v. Phulavati and the discussion with respect to the effect of the statutory partition. As a matter of fact, in substance, there is a divergence of opinion in Prakash v. Phulavati and Danamma with respect to the aspect of living daughter of a living coparcener. In the latter case, the proposition of the living daughter of a living coparcener was not dealt with specifically. However, the effect of reasons given in para 23 had been carried out to logical end by giving an equal share to the daughter."

The court finally concluded as under:

"129. Resultantly, we answer the reference as under:

(i) The provisions contained in substituted Section 6 of the 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.

(ii) 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.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) 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 to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."

After the reformative Amending Act of 2005 and the interpretation of the same in the instant judgment, the Mitakshara coparcenary has been diluted to a greater degree and will be more or less, nothing but a relic of the past . Now with the discernment of the legal position, it is expected that the amendment will bring the much need change in the social status of the daughters. It has already taken 15 years since the amendment was incorporated but now the Hon'ble Supreme court has paved the way by clearing the last hurdle and the onus is on the subordinate courts to be the flag bearers of change.

(The Author is a practicing advocate in the High Court of Punjab and Haryana at Chandigarh and the views and opinions expressed are personal only)

---