M: 103

Section 6 of the Hindu Succession Act-Equal Daughters and Sons

Aarti Gilda

Student of BLS.LLB at DR. D. Y. Patil College of Law

Abstract

The struggle for equality between men and women has been ongoing, for a long time in all the aspects of life. Among these, the struggle for equality in attaining an equal share in one’s parents’ property has proven to be nothing short of a battle for Indian women. The Apex Court has time and again addressed this issue, but has failed to take it to its conclusion, until now.

The Supreme Court on the 11th of August 2020, finally gave a ruling which embedded gender equality in its true sense. A three-judge bench of the Hon’ble Supreme Court endowed a landmark judgment in Vineeta Sharma Vs. Rakesh Sharma and Ors., asserting equal rights to daughters to coparcenary property. Section 6 of the Hindu Succession Act 1956 has always been a controversial topic. The Act has been one of the most significant aspects of contending gender equality. This Act has been discussed upon for many years, but to no avail.

Section 6 of the Hindu Succession Act 1956 has always been a controversial topic. The Act has been one of the most significant aspects of contending gender equality. This Act has been discussed upon for many years, but to no avail.

The Supreme Court on the 11th of August 2020, gave a ruling which embedded gender equality in its true sense. A three-judge bench of the Hon’ble Supreme Court endowed a landmark judgment in Vineeta Sharma Vs. Rakesh Sharma and Orsi, asserting equal rights to daughters to coparcenary property. Most importantly, the Apex Court specified that regardless of the father being alive or not, on or before the Hindu Succession (Amendment) Act, 2005, daughters will still be entitled to the father’s property simply by the righteousness of birth and her being alive on the date of enforcement of the 2005 Amendment.

The event came before the Supreme Court due to the conflicting decisions of the benches in Prakash vs. Phulavati,ii and Danamma @ Suman Surpur vs. Amariii. In Prakash, Section 6 was held prospective and in favor of the respondents. The rationale being the supposed effect of the ‘Notional Partition’ and that both the coparcener and daughter must have been alive on 9th September 2005.

In Danamma, the Court held that Section 6 was retrospective. As the father died in 2001, leaving a widow, two daughters and two sons. The Apex Court stated that “The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener”, irrespective of their father being alive or not on 9th September 2005.

The Hindu law has its roots in the “Shruti” and “Smruti”, and was governed by different custom and shastric laws which somewhere were the driving force of the laws of inheritance. They followed the thoughts of two prominent schools.

Hindu Law and Its Schools

The two oldest and rooted schools of Indian religion and Hindu law are the Mitakshara and the Dayabhaga. These schools are prevalent in many regions of India even today.

In the Mitakshara school, the thoughts are dominantly orthodox. Except for Bengal, all parts of India follow this thought. In Mitakshara school, the ownership right of the joint family is with the male child on his birth. The essence being the unit of ownership, females are not considered as coparceners. Females do not even have the right of succession, neither does a widow of a coparcener.

On the other hand, the Dayabhaga school, propounds leniency and flexibility. This school is more recent than the Mitakshara and is prevalent in Bengal region. In the Dayabhaga school, females can succeed to their family property and even the widow of the coparcener can get the property transferred to her, although she cannot alienate it.iv

These schools of thoughts have had a huge impact on the laws of succession and inheritance. They have molded the laws in an outdated thought process, which has led to the conflict and the fight against injustice today.

The Step Ahead

The objective of the Amendment Act of 2005 signifies that the ancient Mitakshara rules of coparcenary rights, violates women’s rights to equality, by barring them from inheriting ancestral property. The amendment aims to rectify this injustice towards women. The case of Danamma vs. Amar is more in favor of the Act.

Similarly, there have been laws that are retrospective in nature and the interest of women. Like, Section 14 of the Hindu Succession Act 1956, states, that the property of a female Hindu is to be considered her absolute property. Any kind of property bewitched by her, obtained before or after the Act commenced, shall be held by her as a full owner and not as a limited one. No property obtained by the means of a gift or any other instrument or a will or through a decree or an award, where its terms are prescribed as a restricted estate. v

According to Section 14(1), ‘property’ includes movable and immovable property both, obtained by a Hindu female. This property must be a property:

  • By inheritance or death,
  • Through partition
  • By arrears of inheritance or else in lieu of maintenance,
  • Acquired by her skill; exertion
  • Through a gift from a relative or somebody else, either before or after her marriage.
  • Her Stridhana immediately before the Act was commenced.

Section 14 is implicitly retrospective as it widens the limited estate of a Hindu woman toward an absolute estate regarding property inherited or held by her, when the Act came into force. The only prerequisite being that the property must be in her possession on the day of the commencement of the Act.

The basis of the Amendment Act and the Supreme Court’s recent ruling is the same. All that which occurred before the amendment remains unaffected by it. In an event where the father dies before the Amendment of the Act and before the partition of the coparcenary property, a daughter should be permitted to claim her right and share as per the Amendment. Some of the observers have suggested the abolishment of the coparcenary property once and for all, however, this idea has been scrapped by the Law Commission as it would not protect the interests of women.

Section 6(5) a Win?

While recapitulating the need to safeguard the interests of coparcener daughters against exploitative maneuvers and fallacious defenses, the Court held that oral partition should not be welcomed and only a registered instrument or a Court’s decree must be recognized. An enormous burden of proof has been laid upon the defenders of oral partition which may be approved only in rare cases.

Post Amendment Appropriation of Rights in Coparcenary Property

The Court decisively grasped that after the amendment of 2005, interest in the coparcenary property can be attained by the virtue of birth or adoption within permissible decrees only. The Court also conclusively stated that survivorship under the Mitakshara coparcener has been repudiated since 9 September 2005, through Section 6(3) of the Amendment of 2005.vi

The verdict rose immense respect and happiness in women, as their victory in the battle of equality, as Justice Arun Kumar Mishra heading the three-judge bench of the Supreme Court stated, a daughter is always a daughter but a son remains a son till he is married.vii

Conclusion

Women have been considered inferior to men for ages. The fight for equal rights is never-ending and exhausting. It is a shame that women today have to fight for their rights, for their birthright and it is amusing how a parent can be biased towards their daughters, their blood. Women have had to prove their existence to their parents and also to the Court for so many years now.

Women have also fought for their rights and are weak no more; they are very well aware of their rights and are now economically independent and capable of fighting their own battles. It is a chagrin that women have to scuffle for their rights let alone equality. The judiciary may be a little flawed and imperfect, but it has repeatedly proven to deliver justice and equality in all its glory.

The landmark ruling of the Supreme Court has once again established the trust of women that they are not less than anybody, but are important, and above all equal.

“ Gender Equality is a Human Fight, Not a Female Fight”.


i Civil appeal no. 32601 of 2018

ii (2016) 2 SCC 36

iii (2018) 3 SCC 343

ivLawnn.com, “Different Type of Schools under Hindu Law- A Detailed Distinction”, Lawnn, April 10, 2016.

vSection 14 of Hindu Succession Act, 1956

vi Section 6, The Hindu Succession Act, 1956

viiDharvi Vaid, “India’s Supreme Court bolsters inheritance rights for Hindu women”, DW, August 11, 2020.